Datasets:

aidos-lab

/

kan-embeddings-int8-mixed-bread-large

like 0

Follow

aidos-lab 4

The opinion of the court was delivered by Hatcher, C.: This is an appeal from a conviction of assault endangering the life of another as prohibited by K. S. A. 21-435. The following facts may be gleaned from the state’s evidence. On the 22nd day of June, 1968, shortly after 12:00 noon, the defendant and JoAnn Bracken, the sister of Corabelle Furst, arrived at the farm home of the Fursts. The Fursts had been boarding JoAnn Bracken’s daughter, Carol, since April, 1968. After a brief conversation, Mr. Furst agreed to repair the defendant’s car in exchange for a chrome .22 caliber pistol. The pistol was delivered to Mr. Furst who placed it in a bedroom dresser drawer. Shortly thereafter, Mr. Furst drove his wife, two of their children, Rickey and Betty, JoAnn Bracken and the defendant to Ottawa to purchase the parts necessary to repair defendants car. Mrs. Furst and the defendant entered Harry Smith’s Auto Supply where Mrs. Furst ordered a wheel cylinder kit for her car which was paid for by the defendant. Mrs. Furst then left for Naomi’s Tavern with her husband and JoAnn Bracken. They were joined shortly thereafter by defendant who had a bottle of liquor under his j'acket, although he was not seen drinking. They all returned that afternoon to the Furst home. Carol Bracken, Linda Furst and Nancy Furst, the complaining witness’ oldest daughters, were awaiting them. After a short time an argument ensued when defendant became rather insistent that Carol Bracken, JoAnn’s daughter, should leave with them rather than stay with the Fursts. Mrs. Furst objected. Defendant then demanded the return of his pistol. Mr. Furst refused, explaining that defendant had been drinking and the gun would just get him into trouble. After several more demands for the gun, Mrs. Furst told her son Rickey to get the gun and give it to defendant, which he did. Rickey observed that the gun was not loaded. Mr. Furst then requested that defendant pay for Carol Bracken’s board. Defendant angrily threw two twenty dollar bills on the table and went out to the porch with JoAnn Bracken. Shortly thereafter the defendant returned and with no warning he struck Mr. Furst twice on the head with the pistol. Mr. Furst ran out of the room in a dazed condition. Mrs. Furst grabbed at the defendant who struck at her. As she attempted to grab him again, defendant fired the pistol, greatly surprising Mrs. Furst who was unaware that the gun had been loaded. The defendant again fired the gun, this time the shot grazing Mrs. Furst’s cheek and she sanie to the floor. Defendant, who had been about six feet from Mrs. Furst while firing the shots, then left hastily out the back door. One of the shots was located in the door casing vertical to where Mrs. Furst was standing. The shells were loaded with varmint shot. There were powder burns around the hole in the casing and about Mrs. Furst’s face. The defendant drove away in his car and soon thereafter disposed of the pistol in a Topeka, Kansas pawn shop using an assumed name. The defendant was convicted of assault endangering the life of another. He has appealed. The appellant first contends that the trial court erred in failing to continue the trial of the case on its own motion until a witness could be produced. It appears that while Mrs. Furst and her husband were seeking medical aid, and the children were trying to reach the sheriff through a neighbor’s telephone, JoAnn Bracken walked away. She has never been seen nor heard from since that time. Both the state and the defendant caused JoAnn to be subpoenaed as a witness but she was not found. Neither party requested a continuance. The appellant suggests that he was in no position to ask for a continuance because he was in jail, unable to make bond, and had moved for a speedy trial. Appellant adds—“faced with this dilemma, the defendant was denied effective compulsory process for witnesses in his behalf, and the trial should have been continued until the witness was available.” We find no merit in this contention. A party must make a request if he desires a continuance because of an absent witness. The matter is then addressed to the discretion of the trial court. In Jackson v. State, 204 Kan. 823, 465 P. 2d 927, we stated: “K. S. A. 60-240 (c) provides that the granting of continuances by the court based on the absence of a material witness shall in all cases be discretionary. A proceeding conducted pursuant to 60-1507 is a civil proceeding and the foregoing section applies. K. S. A. 62-1414 provides that continuances may be granted in criminal cases for like causes and like circumstances as in civil cases. Thus, the discretionary portion of 60-240 (c), supra, applies to both criminal and civil trials. (See State v. Zimmer, 198 Kan. 479, 486, 426 P. 2d 267, cert. denied 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298; and State v. Hickock & Smith, 188 Kan. 473, 482, 363 P. 2d 541, cert. denied 373 U. S. 544, 10 L. Ed. 2d 688, 83 S. Ct. 1545.) “K. S. A. 60-240 (c) also states the court need not entertain any motion for a continuance based upon the absence of a material witness, unless supported by an affidavit which shall state: “. . . the name of the witness, and, if known, his residence, a statement of his expected testimony and the basis of such expectation, a statement that the affiant believes it to be true, and the efforts which have been made to procure his attendance or deposition. . . .” (p.-.) The appellant made no attempt to comply with the above statute. In fact, he did not even suggest that he desired a continuance. The appellant next objects to the failure of the trial court to direct a mistrial because of testimony elicited from the state’s witness, Carol Jean Bracken. Carol, the sixteen year old daughter of JoAnn Bracken, testified that the five years she lived with her mother and the appellant prior to going to live with her aunt and uncle they did not reside anyplace, they just traveled around. When the witness was asked as to the defendant’s occupation, his counsel objected and the trial court instructed the jury: “Members of the jury, you’ll disregard any previous testimony of this witness; it’s withdrawn and stricken from your consideration. I think, under the rule, you’re getting close to error.” The questions were largely preliminary. It may have reflected on the appellant’s reputation to be found without an occupation but the question was never answered. Even though the questions were improper the prompt striking of all of the previous testimony of the witness accompanied by the trial court’s admonition to the jury cured any error where it does not affirmatively appear that the temporary reception of the evidence or questions resulted in prejudice to the substantial rights of appellant. (State v. Childs, 198 Kan. 4, 422 P. 2d 898; State v. Smith, 187 Kan. 42, 353 P. 2d 510; State v. Beam, 175 Kan. 814, 267 P. 2d 509; City of Wichita v. Hibbs, 158 Kan. 185, 146 P. 2d 397.) The appellant challenges the sufficiency of the evidence to show “malice aforethought,” “intent to kill” and “endangering the life of another.” The appellant would take the evidence most favorable to him and weigh it in his favor. This an appellate court cannot do. In State v. Trotter, 203 Kan. 31, 36, 453 P. 2d 93, we stated: “. . . The rule in a criminal case is that on a review of the sufficiency of evidence this court will examine the record to determine if from all of the facts and circumstances disclosed by the evidence the jury could have reasonably drawn an inference of guilt. (State v. Townsend, 201 Kan. 122, 439 P. 2d 70; State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Helm, 200 Kan. 147, 434 P. 2d 796.) On the burglary and larceny offenses, the defendant would have us reweigh the testimony of several of the state’s witnesses. This we will not do, for we have consistently adhered to the proposition that it is the function of the jury, not that of the appellate court on review, to weigh the evidence and pass upon the credibility of the witnesses. (State v. Scott, 199 Kan. 203, 428 P. 2d 458.)” The same answer may be made to appellant’s contention that there was no evidence to support an instruction on maiming, wounding, disfiguring or causing great bodily harm as prohibited by K. S. A. 21-435. The appellant last complains of the failure of the trial court to grant a new trial because of newly discovered evidence. The appellant states: “After the trial of the action, there was discovered by defendant’s counsel an additional witness, one Charles Allen, of Topeka, Kansas. His name was not previously known to defendant or his counsel, nor could they have learned of his testimony, by exercise of due diligence. He would have testified that, sometime after the altercation itself, complaining witness Mrs. Furst related to him an entirely different version of the incident than that told by her in the trial of the case. . . .” The testimony could only be used for impeachment purposes as the alleged new witness was not present at the incident in question. The testimony could do nothing more than discredit the testimony of Mrs. Furst. New trials are not granted on such newly discovered evidence. In Pankey v. Wyandotte Cab, Inc., 174 Kan. 17, 254 P. 2d 305, we stated: “No error was committed in failing to grant a new trial on this issue. The affidavits were made up largely of statements that, while the witness was an employee as testified to, he had no authority to perform certain duties to which he had testified. Some of the matter in the affidavits was impeaching, but the general rule is that new trials are not granted on account of new evidence which only goes to the general reputation of the witness for truth and veracity, or which merely discredits a witness. (Schribar v. Maxwell, 92 Kan. 306, 140 Pac. 865.) . . .” (p. 21.) A careful examination of the record discloses no trial errors which would justify the granting of a new trial. The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Fontron, J.: In this appeal we are concerned with the interpretation of fhe last will and testament of John F. Maguire. The foremost and primary question is stated by the parties to be whether fhe seventh paragraph violates the rule against perpetuities and is an unreasonable restraint on alienation. Mr. Maguire died December 26, 1932, being survived by his wife, Kathryn, who died July 8, 1966, and the following children: a daughter, Nellie Maguire Green, formerly Nellie Maguire Idol, who died January 9, 1945; a son, John F. Maguire, Jr., who died November 18, 1966; and a daughter, Lillian Maguire McNutt, who is still living. In his will the testator devised a life estate in all his real property to his wife, Kathryn, and devised fhe remainder interests therein to his children in separate parcels. Paragraph seven of the will, whose construction triggered this litigation, reads as follows: “Subject to the life estate of my said wife, Kathryn Maquire, and also subject to the life estate of my son, John F. Maguire, Jr., therein, I will, devise, and bequeath the south one half of the north west quarter of section seventeen (17), in township two (2), range eighteen (18), Brown county, Kansas, to the issue of the body of John F. Maguire, Jr., surviving him with the understanding that Nellie Maguire Idol, and Lillian Maguire McNutt, may, if they so desire, elect to take said above-described real estate, and pay to the issue of the body of John F. Maguire, Jr., deceased, the sum of ten thousand dollars, with interest thereon at the rate of four percent per annum, from the date of the death of said John F. Maguire, Jr., equally between them, share and share alike.” The will was admitted to probate in January, 1933, and the estate remained open for more than a year after Kathryn s death in July, 1966. A petition for final settlement of the estate was heard in probate court on July 28, 1967. Prior to that date, however, written defenses to the petition were filed by Darlene Maguire Scarbrough, the sole issue of John F. Maguire, Jr., who had died the preceding November. Mrs. Scarbrough (who is sometimes referred to herein as Darlene) alleged she was entitled to the land described in paragraph seven, and that the provisions giving Nellie Maguire Idol (now Green) and Lillian Maguire McNutt the right to take the same upon payment of ten thousand dollars was void and unenforceable. Darlenes contention was rejected by the probate court, which proceeded to assign the testator’s real estate in accordance with the several provisions of the will. The probate court’s decision was appealed to district court, which also held that the provisions of paragraph seven did not violate the rule against perpetuities; that Nellie’s rights under the option descended to her heirs; and that notice to exercise the option was given Darlene within a reasonable time. Mrs. Scarbrough has appealed to this court from that decision. No extended dissertation on the rule against perpetuities will be attempted at this time. The rule has been recognized in this state from early statehood and considerable litigation has followed in its wake. For present purposes it will be sufficient to observe that the purpose of the rule is to prevent the creation of future interests in property which will not vest within twenty-one years after some life or lives in being, plus the usual period of gestation. (In re Estate of Freeman, 195 Kan. 190, 404 p. 2d 222.) As to application of the rule against perpetuities in the area of options, we find the test set forth in Restatement, Property, Volume IV, p. 2315: “Subject to exceptions [none of which appear applicable here] . . . the limitation of an option in favor of a person other than the conveyor is valid because of the rule against perpetuities when, under the language and circumstances of the limitation, such option “(a) may continue for a period longer than the maximum period described in § 374; and “(b) would create an interest in land, or in some unique thing other than land, but for the rule against perpetuities.” In the “Comment” which follows the foregoing statement of the rule, certain requirements are shown. Subparagraph b. thereof, “Requirement of Clause (a)” reads in part as follows: “Under the rule stated in this Section, the option must be one which ‘may continue for a period longer than die maximum period described in § 374.’ This requirement is not satisfied when the option is found, from the language and circumstances of its creation, to have been intended to be exercisable only by an already conceived optionee himself, and not by any successor in interest to such optionee. In any such case the duration of the option is measured by a life in being, namely, the life of the optionee and the rule stated in this Section is inapplicable. . . .” (p. 2316.) The rule appears to be quite general in this country that a testamentary option, that is, option granted or created by will, confers a right which is personal to the optionee himself, and which will not survive his death. Formal expression is given to this principle in an annotation appearing in 28 A. L. R. 2d: Wills-Option-Who May Exercise, where on pages 1167, 1168, the author says: ". . . [A] majority of the courts have held that a right or option given by will to purchase estate property was personal to the optionee, and did not survive his death so as to become exercisable by his successors in interest.” This prevailing rule concerning the exercise of options created by will is stated in 96 C. J. S., Wills, § 1104, p. 834, in these words: “. . . The option is personal to the optionee; it cannot be exercised by a stranger or assignee or by the heirs or personal representative of the optionee, . . .” Being personal to the optionee who is designated in the will, a testamentary option must be exercised, if at all, by the named optionee within his own lifetime—a lifetime in existence. Thus, the requirement of the rule respecting options which we have heretofore quoted from Restatement, supra, is not fulfilled, and the rule against perpetuities is not offended. This corollary is reflected in the text of the annotation in 44 A. L. R. 2d; Option Created By Will, p. 1228, where it is said: “In the majority of the cases in which the question has arisen it has been held or recognized that the option in question which was created by will for the purchase of real estate was not void as contrary to the rule against perpetuities.” For cases supporting this position see, among others, Ludwick’s Estate, 269 Pa. 365, 112 A. 543; Weitzmann v. Weitzmann, 87 Ind. App. 236, 161 N. E. 385; Brown v. Brown, 53 N. M. 379, 208 P. 2d 1081; Austin Presbyterian Theological Sem. v. Moorman, 391 S. W. 2d 717 (Tex.), cert. den., 382 U. S. 957, 15 L. Ed. 2d 361, 86 S. Ct. 434. We have been unsuccessful in our search to discover cases from this jurisdiction directly in point, and none have been called to our attention by counsel on either side. However, in Campbell v. Warnberg, 133 Kan. 246, 299 Pac. 583, we believe there is tacit recognition of the principle that option granted by will to purchase real estate does not violate the rule against perpetuities. The testamentary scheme in the Campbell case was somewhat complicated, but essentially the will provided that certain of the testator’s children, i. e., the sons, should have the right to purchase the interest of their sisters at a price fixed by the will. Some fifteen months after the father’s death, and after oil had been discovered on parts of the land, greatly increasing the value of the whole, the optionees, for the first time, and in an outstanding display of brotherly solicitude, sought to exercise the option. This court held, in that case, that since the option contained no limit of time for its exercise, the law required that it be exercised within a reasonable time; and that the optionees’ failure to exercise the option for a period of fifteen months after their father’s death, during which time oil development had taken place and land values had skyrocketed, constituted an unreasonable delay and defeated their option entirely. In summary, we believe the commanding weight of authority to be: (1) That an option to purchase real estate created in a will is personal to the optionee, or optionees, and must be exercised by him or them in person; (2) that where no time limit is specified for the exercise of a testamentary option, it must be exercised within a reasonable time; (3) being personal in character, and exercisable only within the lifetime of the optionee or optionees, as the case may be, an option created by will does not contravene the rule against perpetuities. Accordingly, we are constrained to hold that the option provided for in paragraph seven of John F. Maguire’s will does not violate the rule against perpetuities. Furthermore, we do not view the provisions of paragraph seven as being an unreasonable restraint on alienation. As we have said, the option granted in that paragraph is personal and exercisable, if at all, only during the lifetime of the named optionees. So construed, the option may be executed only during lives in being, which we cannot regard, in itself, as an unreasonable period of restriction upon alienation. Moreover, it has been held that an option does not suspend the power of alienation where the parties are in being and ascertainable, and can together convey the entire title. (70 C. J. S., Perpetuities, § 56, p. 657; Lantis v. Cook, 342 Mich. 347, 69 N. W. 2d 849.) We have not overlooked the case of Henderson v. Bell, 103 Kan. 422, 173 Pac. 1124, wherein it was held that a contract granting an option to purchase certain real estate at a specified price, but unlimited as to time of exercise, was void as violating the rule against perpetuities. We would point out however, that the option in that case was created by a contract, commercial in nature, and not by the terms of a will, in the interpretation of which the intention of the testator is always of paramount concern. In such respect, at least, the facts in Henderson differ from these here, and we do not consider that decision as of controlling significance in this case. Included in the memorandum opinion, which the trial court filed at the time of entering its judgment, is a statement that the parties had agreed that the option right of Nellie Maguire Idol Green, who died in 1945, decended to her heirs. This has caused some head scratching on our part, for ordinarily, as we have said more than once, courts are bound by stipulations of the litigants. Our conclusion that a testamentary option does not survive the optionee’s death would seem to conflict with the foregoing rule, for it is directly contrary to the agreement reached by the parties herein. However, we believe the rule, valid though it may be where questions of fact are concerned, cannot be invoked to bind or circumscribe a court in its determination of questions of law. This principle is set out in 50 Am. Jur., Stipulations, § 5, p. 607: “It has frequently been stated as a general rule that the decision of questions of law must rest upon the court, uninfluenced by stipulations of the parties, and it is generally held, accordingly, that stipulations as to what the law is are invalid and ineffective. . . .” See, also, Beams v. Werth, 200 Kan. 532, 549, 438 P. 2d 957, where an analogous axiom was defined by this court. In this case, we are asked to determine whether the option contained in paragraph seven of the Maguire will is invalid as violating the rule against perpetuities. In our view the answer largely depends on whether a testimentary option is personal or whether it survives the death of an optionee. The legal consequences attending the option are matters which this court must be free to determine, unfettered by limitation, in dealing with the ultimate issue of validity. Although we have decided that the option created in paragraph seven of Mr. Maguire’s will does not infringe upon the rule against perpetuities, this does not finally dispose of this lawsuit. As we have said, Nellie Maguire Idol (or Green) predeceased both her mother and her brother, the two life tenants. Having departed this life before the option could first have been exercised, she of course has never been in a position to exercise it. Neither may her heirs exercise the option, although they have attempted to do so, simply because the option did not survive her death. Thus the final question for our decision narrows down to this: Can Lillian Maguire McNutt, alone, exercise the option granted her and her sister Nellie—the latter now being deceased? The question is not free from doubt and we have found very scant authority, indeed, which seems to be in point. In 17 Am. Jur. 2d, Contracts, § 61, p. 397, this statement appears in the text: “It is said that the consent of all persons having an interest in an option is necessary to its exercise by any one of them. . . .” Cited in support of that rule is Pratt v. Prouty, 104 Iowa 419, 73 N. W. 1035. Although the option in that case was not testamentary in character, and all three optionees named therein were still alive when one of their number attempted to exercise the option, the case appears analogous in principle to the one now before us. Perhaps equally analogous are cases with respect to the exercise of powers over property, such as powers of appointment, powers of sale, and the like. The usual rule appears to be that when a power has been given to joint donees, all donees must join in its execution. (41 Am. Jur., Powers, § 29, p. 825.) Even though there is no wealth of authority to guide us in this area, we believe the preferred rule to be that an option granted to two or more optionees must be exercised by them all, absent circumstances clearly indicating a contrary design on the part of the optionor. The record before us is entirely void of evidence from which we might infer such an intent on the part of Mr. Maguire. Accordingly, the option in this case is no longer operative. Nellie Maguire Green’s rights under the option did not survive her death and cannot be exercised by her survivors. Furthermore, the option being joint, it may not now be executed by the surviving optionee, Lillian Maguire McNutt. This leaves Darlene with title to the land no longer subject to the option set forth in her grandfather’s will. The judgment of the trial court is reversed with directions to enter judgment in favor of Darlene Maguire Scarbrough in accordance with views set forth in this opinion.

The opinion of the court was delivered by Fatzer, J.: This was an action for personal injuries and property damage sustained by the plaintiff, Orby A. Curby, when his automobile was struck by a trailer owned by the defendant, Ulysses Irrigation Pipe Company, Inc. The trailer was being pulled by the defendant’s pickup truck which was driven by its employee, Alvin M. Calvin. The parties will be referred to as they appeared in the district court. The issues were tried to a jury which returned a special verdict in favor of the defendant. (K. S. A. 60-249 [a].) The plaintiff has appealed and assigns as error the overruling of his motions for judgment notwithstanding the verdict and for a new trial. The crux of the appeal is whether, under the evidence, the district court erred in giving, over the plaintiff’s objection, an instruction on “unforeseeable accident.” The determination of the question requires a brief resumé of the issues set forth in the pretrial order and the evidence. The pretrial order superseded all pleadings and controlled the subsequent course of the action. As stated therein, the issues are summarized: On June 25, 1966, the plaintiff was driving his 1965 Ford automobile and pulling a 1966 Shasta Trailerette in the eastbound traffic lane on U. S. 50 Highway approximately four miles east of Lakin, Kansas. He was traveling between 45 and 50 miles per hour. The highway was blacktop surfaced, 30 feet six inches wide, and in good condition. The plaintiff met a 1966 Ford pickup truck owned by the defendant and operated by its employee, Calvin. The pickup was traveling approximately 50 miles per hour in the westbound traffic lane and was pulling a four-wheel trailer loaded with irrigation pipe. As the two vehicles met, the trailer suddenly made a sharp swerve and crossed over the center line of the highway and into the eastbound traffic lane where the plaintiff was proceeding. The plaintiff did his best to avoid a collision but was unable to do so. The left front of the trailer collided with the left front and side of the plaintiff’s automobile at an angle. The point of impact was two feet south of the center line in the eastbound traffic lane. The pickup truck did not collide with the plaintiff’s automobile. As a result, the plaintiff sustained property damage and personal injuries in the amounts alleged. The plaintiff contended the collision was proximately caused by the negligence of the defendant in the following particulars: (1) In allowing the trailer to cross over into the plaintiff’s side of the highway; (2) in having a defective hitch and tongue upon the trailer; (3) in operating the pickup truck when it had a low left rear tire which was known by the defendant’s employee or should have been known by him, and (4) in failing to inspect the tires on the pickup and discover the damaged tire. The defendant admitted the collision occurred at the time and place alleged, and that Calvin was its employee who was driving the pickup in the course of his employment. It further admitted the trailer crossed over the center line into the plaintiff’s side of the highway, but alleged it did so because of a sudden and unavoidable accident in that the left rear tire on the pickup suddenly went flat as a result of picking up a four-inch spike, causing an unavoidable swerve of the trailer. It specifically denied that it or its employee were negligent in any respect, and alleged the collision was the result of an unavoidable accident; further, that any damages sustained by the plaintiff were incurred because of his contributory negligence and want of care, since he had opportunity to observe the trailer swerving and failed to stop or steer his vehicle to avoid the collision. Both parties offered evidence, and at the conclusion of the trial the plaintiff and the defendant each moved for a directed verdict which was overruled. The plaintiff made objection to Instruction No. 11 on unavoidable accident, and to Special Question No. 1 as to the defendant’s negligence, which were overruled. The district court submitted a special verdict in the form of special written findings upon issues of fact to which the parties had stipulated and agreed in the pretrial order with respect to the defendant’s negligence and the plaintiff’s contributory negligence. In answer to Question No. 1, the jury found the defendant’s driver was not guilty of any act or acts of negligence in the particulars claimed by the plaintiff which was or were the proximate cause of the collision. The plaintiff’s motions for judgment notwithstanding the verdict and for a new trial were overruled by the district court. The plaintiff contends the district court erred in permitting the defense of unavoidable accident to be brought into the case, and in giving Instruction No. 11 over his objection. The instruction reads: “No. 11 “The burden of proof is upon the plaintiff to prove to your satisfaction the following: “1. That the defendant or the defendant’s driver was negligent in one or more of the particulars contended by the plaintiff, as set out in Instruction No. 2. “2. That said negligence was the proximate cause of the collision. “3. The damages sustained. “The defendant admits that the trailer was on the wrong side of the road but contends that it got there without negligence upon the part of the defendant or the defendant’s driver because of a sudden unforeseeable accident in that the left rear tire of the pickup suddenly went flat as a result of picking up a four inch spike. The burden of proof is upon the defendant to prove that such sudden unforeseeable accident occurred. “If you find that such sudden unforeseeable accident occurred, without negligence upon the part of defendant or its driver, and that after it occurred the defendant’s driver was unable in the exercise of ordinary care to avoid the collision, then you should answer Special Question No. 1 ‘No’. “That a sudden unforeseeable accident occurred is ihe only issue upon which the defendant has the burden of proof. Upon all other issues the burden of proof remains upon the plaintiff. “An unforeseeable accident is an occurrence which could not reasonably have been foreseen or anticipated by an ordinarily intelligent careful prudent person under like circumstances.” In Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213, this court broadly disapproved “pure accident,” “unavoidable or inevitable accident,” or equivalent accident instructions in negligent cases involving motor vehicles. The rationale of the court’s disapproval was based upon the fact that in a negligence action the plaintiff must prove the injury complained of was proximately caused by the defendant’s negligence, and the defendant under a general denial may show any circumstance which mitigates against his negligence or its causal effect. The court declared that since such an instruction merely restates a feature of the law of negligence which in substance is necessarily covered by proper instructions on negligence, burden of proof, and proximate cause, it is not needed, serves no useful purpose, operates to overemphasize the defendant’s case, and tends to mislead and confuse the jury. Running through our decisions is the rule that the foundation for an unavoidable accident or equivalent accident instruction exists only when the court can say there is no evidence of a negligent act or omission of one or both of the parties to the action. In other words, if there is any evidence of negligence of either party, such an instruction has no application to the case. (Knox v. Barnard, 181 Kan. 943, 317 P. 2d 452; Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459; Ripley v. Harper, 181 Kan. 32, 309 P. 2d 412; Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634, 323 P. 2d 638; Employers' Mutual Casualty Co. v. Martin, 189 Kan. 498, 370 P. 2d 110; Kreh v. Trinkle, supra; Cagle Limestone Co. v. Kansas Power & Light Co., 190 Kan. 544, 376 P. 2d 809; Paph v. Tri-State Hotel Co., 188 Kan. 76, 360 P. 2d 1055; PIK 8. 82.) In Employers’ Mutual Casualty Co. v. Martin, supra, it was said: “. . . Furthermore, when an accident is caused by negligence there is no room for application of the doctrine of unavoidable accident even though, because of the circumstances, the accident may have been ‘inevitable’ or unavoidable” at the time of its occurrence, and one is not entitled to the protection of the doctrine if his negligence has created, brought about or failed to remedy a dangerous condition resulting in a situation where the accident is thus inevitable or unavoidable at the time of its occurrence.” (l. c. 500.) (Emphasis supplied.) See, also, Gardner v. Welk, 193 Kan. 445, 447, 393 P. 2d 1019, and Herrington v. Pechin, 198 Kan. 431, 434, 424 P. 2d 624. The plaintiff’s request that we determine the propriety of Instruction No. 11 is in violation of our rule relating to appellate review. It is incumbent upon the party appealing to bring up a complete record of all matters upon which appellate review is sought. Unless an instruction to which an objection is made is a clear and prejudicial misstatement of the law, it can be reviewed only when other instructions which may or may not modify its intent and effect are made a part of the record, in order that all instructions given may be examined together. (Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049; Robles v. Central Surety & Insurance Corporation, 188 Kan. 506, 363 P. 2d 427; State v. Lemon, 203 Kan. 464, 466, 454 P. 2d 718.) The plaintiff failed to include in the record all the instructions given by the district court, but we are told in his brief the court properly instructed the jury on all phases of the law of negligence appropriate to the issues set forth in the pretrial order and to the facts and circumstances established by the evidence of the parties. The term “unavoidable accident” excludes and repels the idea of negligence of either party, and implies that the injury could not have been prevented by their exercise of ordinary care and prudence. Hence, and as indicated, if there is any evidence in the record of negligence of either party, an unavoidable or equivalent accident instruction has no application to the case. In this connection, the fact that the instruction used the term “unforeseeable accident” does not except it from our holding in Kreh v. Trinkle, supra. The term bears the same connotation as the term “unavoidable accident” as has been used in instructions in negligence cases involving motor vehicles, and will be considered in that context in our disposition of this appeal. The district court overruled both parties’ motions for directed verdicts, and permitted the issues to be resolved by the jury on the 'basis of the plaintiff’s claim of negligence against the defendant, and its claim of contributory negligence on the part of the plaintiff. It appears the district court was of the opinion a prima facie case had been established by the plaintiff’s evidence and that he had carried his burden of proof on the issue of the defendant’s negligence. If the cause of the injury was unknown, or if the evidence" showed no negligence on the part of the defendant, it would have been entitled to a directed verdict. In the case before us there is strong evidence the defendant driver failed to use proper care in inspecting and maintaining the defendant’s equipment. He had stopped for gasoline approximately four miles east of the point of impact and failed to inspect his tires. The left rear tubeless tire had a four-inch nail in the outer portion which did not penetrate the casing but caused a slow leak where the nail entered the tire. Recause of the wearing effect of the tire around the site of the nail, the evidence was it had been in the tire for some time—it had been picked up quite awhile before the collision, but not within 500 feet from the point of impact. As a result of the slow leak, the tire became low which caused the trailer to whip, and as a result of the whipping, one side of the A-frame hitch which fastened the trailer to the pickup broke, and a portion of the broken hitch dropped down and made gouge marks in the blacktop pavement at intervals for at least 500 feet east of the point of impact. The defendant’s driver felt the pickup weave once or twice before the collision and its sudden movement to the left when the trailer went onto the plaintiff’s side of the highway. He did not hear the hissing sound of escaping air prior to the collision, but simultaneously with the impact he heard a hissing of air. After the collision the left rear tire was flat but the other three tires on the pickup were properly inflated. The only way the low tire could have suddenly gone flat was a sudden pull or push sideways on the rear of the pickup which would cause the bead or rim of the tire to break from the edge of the wheel, which “would let the air out all at once.” The cords on the inside of the tire were not out of place and if the tire had been run flat it would have had a “rim cut on it.” Was Instruction No. 11 a clear misstatement of the law? Considering the evidence of both parties as disclosed in the record, we conclude it was. We are of the opinion the evidence disclosed negligence on the part of the defendant and, under the rule heretofore stated, it was not entitled to an instruction on “unavoidable accident.” The negligence of its driver had created, brought about, or failed to remedy a dangerous condition resulting in a situation where the collision was made inevitable or unavoidable at the time of its occurrence, but that does not entitle the defendant to the protection of the doctrine of unavoidability. (Employers' Mutual Casualty Co. v. Martin, supra.) Was the instruction prejudicial? The determination whether the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends upon all the circumstances of the case, including a consideration of all the evidence. No precise formula can be drawn. (Kreh v. Tringle, supra.) With the possible exception of conflicting testimony with respect to the escaping of air from the tire when the collision occurred, there is no affirmative evidence that the collision resulted from any cause other than the negligence of the defendant. The special verdict of the jury in favor of the defendant, notwithstanding this state of the record, is in itself an indication that the jury was misled to the plaintiff’s prejudice. Moreover, the giving of the instruction obviously overemphasized the defendant’s case, and the instruction suggested to the jury that it should consider unavoidability as an issue or ground of defense separate and apart from the question of negligence and proximate causation. An attempt by the jury to carry out the direction of the instruction could be expected to result in confusing and misleading its members. In this connection, we keep in mind the tendency which such an instruction would have to induce the jury to believe that the sudden movement of the trailer onto the plantifFs side of the highway was an unavoidable occurrence; that it caused the collision, and that, accordingly, no one should be held liable. In addition, the jury may have been led to disregard the permissible inferences of the plaintiff’s evidence that the defendant’s driver was negligent in not properly maintaining and inspecting the tires and equipment and that he failed to exercise ordinary care and prudence in view of all the facts. Under the circumstances, the record indicates that the error of the district court in giving Instruction No. 11 was prejudicial. The judgment of the district court is reversed with directions to sustain the plaintiff’s motion for a new trial, and to proceed in accordance with the views expressed in this opinion.

The opinion of the court was delivered by Fromme, J.: Linvil “Red” O’Neal was convicted of second degree murder for shooting Jack Maples with a shotgun on October 23, 1967. The defendant waived a jury and was tried before the court. This is a direct appeal. The defendant presents two specifications of error. The first relates to the admission of evidence. The second concerns the sufficiency of the evidence. A summary of the trial evidence follows. The defendant and three other persons had been staying at a farm house located in Johnson county. The men had been cutting firewood to sell in surrounding cities. The three other persons were Jack Maples, Basil Woods and Lura Meginn. Basil Woods testified that there had been hard feelings between the defendant and Jack Maples. Both wanted to boss the operation. They had previously fought and on that occasion the defendant had left the farm house. He returned the following morning. On the evening Jack Maples was killed the men had completed the day’s work and were in the house. Maples began peeling potatoes in the kitchen. He told the defendant to fry them as soon as they were peeled. Woods further testified he went outdoors and shortly thereafter heard a shot. The defendant appeared on the front porch and advised Woods that Maples had said something he didn’t like and he had picked up the gun and shot the “son of a bitch”. Woods then called the sheriff. Lura Meginn testified she saw the defendant go into the kitchen just before the shot was fired. She went into the kitchen and found Maples lying on the floor beside the table. The defendant stated, ‘When anybody does anything against me, they have to answer for it.” When officers Hayes and Guerian arrived they found Maples dead. He was lying on the floor face down with both hands under his stomach. The shotgun was found lying across the arms of a chair in the living room. The defendant was highly emotional and continued to make voluntary statements after being advised of his constitutional rights. One of the defendant’s statements was, “There’s the gun, you can have it, there’s the gun I shot the dirty son of a bitch with.” The defendant was arrested. Sheriff Allenbrand testified he examined the body immediately after pictures were taken at the scene of the crime. He rolled the body of Jack Maples over and observed a partially peeled potato grasped in his left hand. A paring knife was on the floor beside the body. A paper grocery sack containing peelings was on the floor beside the chair. A drain pan was on the table and contained peeled potatoes. Dr. Bridgens performed the autopsy. He testified Jack Maples died from a gunshot wound in his chest. The wound started at the right nipple and extended to the left in a downward course. It terminated at the lower left portion of the rib cage, at which point there were numerous small exit wounds. Shotgun pellets had lodged in the wall below the kitchen table, eleven to twenty inches from the floor. The top of the table was twenty-nine inches from the floor. The chair was located immediately to the left of the table. The defendant gave his version of the shooting at the trial. It was quite different. He said he and Jack Maples were sitting in the kitchen. Maples kept staring at him. The defendant started to leave the room and when he got up Maples had the shotgun. He asked Maples what he was going to do with the gun. Maples jumped up with the gun in his hands and threatened him with it. The defendant grabbed the gun. They wrestled over it. The gun discharged and Maples fell to the floor. We will first consider the question of the sufficiency of the evidence. The defendant points out that under our statute to constitute murder in the second degree the homicide must be committed purposely and maliciously, but without deliberation and premeditation. (K. S. A. 21-402.) He says in such case the act resulting in death must have been committed with the intention of doing some great bodily harm. There must be an intention or consciousness that the act done might reasonably cause death. (Citing State v. Jensen, 197 Kan. 427, 417 P. 2d 273.) He states that his testimony was the only direct evidence of what happened, i. e., Jack Maples precipitated the struggle over the gun and the defendant’s actions were without an intent or consciousness of doing great bodily harm to Maples. Therefore he says the evidence was insufficient to support a conviction. The physical facts surrounding the homicide as previously set forth in this opinion, cast considerable doubt upon the defendant’s story. It was for the trier of the facts to determine how Jack Maples met his death. Obviously the trier of facts was not required to accept defendant’s version if there was sufficient substantial evidence to support the prosecution’s theory. (See State v. Scoggins, 199 Kan. 108, 111, 427 P. 2d 603, and cases cited therein.) There was evidence from which the court might reasonably find the defendant obtained the shotgun from above the door where it was kept and intentionally shot Jack Maples because of their pre vious quarrel. Maples was found by the officers face down on the floor. A paring knife was beside him and a potato was found tightly grasped in his left hand. The physical facts in evidence cast serious doubt upon defendant’s unsupported testimony at the trial. His voluntary statements to those present when Maples was shot were damaging to his theory of the case. The function of this court, when considering the sufficiency of circumstantial evidence to sustain a criminal conviction, is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Patterson, 200 Kan. 176, 434 P. 2d 808.) We have reviewed the record and find a sound basis in the evidence for a reasonable inference that the defendant shot Jack Maples purposely and maliciously. We turn to the remaining specification of error. The prosecution strenuously urged the admission into evidence of a prior conviction for felonious assault which occurred in Missouri. The authenticated journal entry related to one Linville O’Neal. Several fingerprint cards were introduced in evidence to identify Linville O’Neal as being the same person as Linvil “Red” O’Neal. One of the prints was obtained from Linville O’Neal in Missouri when he was committed on the assault charge. A second print had been obtained from the defendant by the Johnson County Sheriff’s office in 1954 in connection with a “DWI” charge. The third set of fingerprints was obtained when defendant was committed on the present murder charge. A fingerprint expert testified he had examined all of these sets of fingerprints and in his opinion they had been taken from Linvil “Red” O’Neal. The defendant objected to the use of these fingerprint cards based upon what was said in State v. Taylor, 198 Kan. 290, 424 P. 2d 612, concerning F. B. I. “rap sheets” used in that case to prove prior convictions under the Habitual Criminal Act (K. S. A. 21-107a). The trial court in the present case admitted the fingerprint cards for identification purposes only. Matters thereon “not relevant to the comparison made by special agent Buchanan” were excluded from consideration. These fingerprint cards were not “rap sheets” as mentioned in Taylor. They were not admitted to prove prior convictions. Assuming for the purpose of this inquiry that the authenticated journal entry from Missouri was admissible, these fingerprint cards were properly used for identification purposes. We find no error in the use made of the fingerprint cards. Objection was made to the Missouri conviction because of remoteness. The conviction was in 1939. In ruling upon the objection the trial court said: “. . . Mr. Boyle [counsel for defendant], what you have said has a lot of merit, what you have said about relevancy, having been some 29 years ago, I think however, this goes to the weight the court will give the exhibit. . . .” The court’s ruling was proper when a prior conviction is otherwise admissible under the statute. (K. S. A. 60-455.) We have held there is no hard and fast rule by which it can be determined when evidence of prior crime, if otherwise admissible, becomes irrelevant because of intervening time. The matter must be left largely to the discretion of the trial court. (State v. Yates, 202 Kan. 406, Syl. ¶ 5, 449 P. 2d 575.) Remoteness in time of a prior conviction, if otherwise admissible, affects generally the weight and probative value and not the admissibility of the evidence. (State v. Fannan, 167 Kan. 723, 207 P. 2d 1176; State v. Poulos, 196 Kan. 287, 411 P. 2d 689.) In Fannan a 17 year old conviction was held properly admitted in a trial before a jury. In our case the trial was before the judge. When there is no jury to be misled by the evidence there is a strong presumption on appeal that the trained mind of the trial judge was not led astray by such evidence and that proper limitations on weight and probative force were applied. (See Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, Syl. ¶ 4, 349 P. 2d 931.) Accordingly we hold remoteness of the prior conviction in Missouri did not render it inadmissible under the specific facts of this case and in light of all the evidence at the time it was introduced. However, this does not mean a prior conviction is never too remote to require exclusion. In State v. Owen, 162 Kan. 255, 176 P. 2d 564, it was held a twenty-eight year old conviction had no probative value under the facts of that case and its admission constituted an abuse of discretion requiring a new trial. A more serious objection to admission of this prior conviction is urged by the defendant. A prior conviction cannot be used as proof a defendant committed a later crime with which he is charged. This rule and the exception thereto are set forth in K. S. A. 60-455. Under the exception in this statute evidence that a person committed a crime on a specified .occasion may be admissible when it is relevant to prove certain material facts bearing upon proof of certain elements of the crime, such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. It should be noted the statute says such evidence may be admissible when relevant to prove certain material facts. (See State v. Omo, 199 Kan. 167, 428 P. 2d 768 and State v. Roth, 200 Kan. 677, 682, 438 P. 2d 58.) The determination of relevancy is a matter left to the judicial discretion of the trial judge. However, exercise of that discretion must not be abused. It must be based upon some knowledge of the facts, circumstances or nature of the prior offense. The prosecution in the present case urged the prior conviction to prove intent to commit the present crime and to show the shooting did not occur through mistake or by accident. The prior conviction was for felonious assault. The authenticated copies of the conviction do not show the facts, circumstances or nature of that assault or the means by which it was accomplished. From the record before us we cannot say a weapon was used in the prior assault. There may or may not have been similarities in the facts of that case which would be relevant to prove intent or absence of mistake in the present case. (See State v. Taylor, supra; State v. Motley, 199 Kan. 335, 430 P. 2d 264; State v. Owen, supra; State v. Mader, 196 Kan. 469, 412 P. 2d 1001; State v. Frizzel, 132 Kan. 261, 295 Pac. 658.) On the basis of the record before us we conclude the prior conviction for felonious assault should not have been admitted in evidence in the present case. However, the erroneous admission of evidence during a trial does not in every case require a reversal of a conviction. K. S. A. 60-261 provides: “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” On appeal, this court is directed to give judgment without regard to technical errors or defects which do not affect the substantial rights of the parties. (K. S. A. 62-1718). In urging error because of the admission of this prior conviction the defendant presents no federal constitutional question. However, the Kansas harmless error rule may be applied to federal constitutional errors when it appears the error had little, if any, likelihood of having changed the result of the trial and when the court is able to declare such a belief beyond a reasonable doubt. (State v. Fleury, 203 Kan. 888, 457 P. 2d 44.) In Fleury we cited strong federal authority supporting our harmless error rule. (See Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 and other federal cases cited therein.) What are some of the circumstances and factors in the present case bearing upon the effect this prior conviction may have had upon the result of the trial? The trial was before the district judge who indicated in the record that this twenty-nine year old conviction was entitled to no more than limited weight and probative force. There was no jury to be led astray by considering this evidence. The trial judge limited its force to the single question of intent and lack of mistake on the part of the defendant. The physical facts in evidence had nullified defendants version of the shooting for all intents and purposes. Evidence bearing upon the question of intent and lack of mistake was strong and convincing without resort to the prior conviction. Evidence of this prior conviction was superfluous and is a prime example of “over-trying” the case by the prosecution. Under the circumstances of this case the erroneous admission of the prior conviction could have had little, if any, likelihood of changing the result of the trial. Its admission in this case was harmless error beyond a reasonable doubt. The judgment is affirmed.

The opinion of the court was delivered by Kaul, J.: This is an appeal from an order denying relief on petitioners motion filed pursuant to K. S. A. 60-1507. Petitioner’s motion attacks a sentence for a term of not exceeding three years imposed after a plea of guilty to the offense of escaping from the Kansas State Penitentiary. (K. S. A. 21-734.) Counsel was appointed and petitioner was afforded an evidentiary hearing. After hearing the evidence, the trial court entered findings and conclusions adverse to petitioner. Petitioner then perfected this appeal specifying two points, neither of which has merit. Petitioner claims the trial court erroneously found his plea of guilty to be a voluntary act and further erred in finding the evidence failed to establish the infringement of petitioner’s constitutional rights. There is ample evidence to support the trial court’s findings with respect to both claims of petitioner. Because of the brevity of the abstract, filed by petitioner and the failure of the state to file a counter-abstract, we have secured the court reporter’s complete transcript of the 60-1507 proceedings. Petitioner testified “I knew I was guilty;” further that he entered his plea because he knew he was guilty; had no hope of defeating the charge by a jury trial; and he wanted to escape sentencing under the Habitual Criminal Act. The record discloses petitioner escaped from the penitentiary on January 15, 1965, and was returned on May 7, 1965. On his return petitioner was confined in the segregation and isolation building where he remained until September 19, 1966. Petitioner entered his plea and was sentenced on November 2,1965. Following his return to the penitentiary on May 7, 1965, and the filing of the escape charge, counsel was appointed for petitioner. Petitioner s testimony and correspondence with his attorney, which was introduced by petitioner at his 60-1507 hearing, indicate that, following his appointment, petitioner’s attorney commenced negotiations with the county attorney. Apparently, the county attorney agreed to reduce the charge from breaking prison (K. S. A. 21-732 and 733) to escaping without breaking (21-734) and, further, not to invoke the Habitual Criminal Act to which petitioner admits he was subject. It appears petitioner decided to enter his plea because he was satisfied with these arrangements; and he should have been pleased because the sentence imposed was the absolute minimum under the circumstances. There is nothing in the record which indicates a violation of the guidelines governing plea discussions set forth in State v. Byrd, 203 Kan. 45, 453 P. 2d 22. Petitioner was confined in isolation and segregation for some six months prior to entering his plea of guilty. His statements to the court at allocution, notwithstanding, petitioner now claims confinement amounted to coercion in violation of his constitutional rights. However, his own testimony indicates his plea was prompted by other considerations. Concerning confinement in isolation and segregation what is said in Davis v. State, 204 Kan. 372, 461 P. 2d 812; Knight v. State, 203 Kan. 652, 455 P. 2d 578, and State v. Jenkins, 197 Kan. 651, 421 P. 2d 33, is applicable. We find no reason on any of the grounds urged to disturb the trial court’s judgment and it is affirmed.

The opinion of the court was delivered by Kaul, J.: This is an appeal by respondent and its insurance carrier, hereafter referred to as respondents, from an award of permanent partial disability in a workmen’s compensation case. The examiner’s award of compensation for seventy-five percent permanent partial disability was affirmed by the director. The trial court approved and adopted the findings, decision and award. This appeal followed. The principal issues concern the test applied in determining claimant’s permanent partial disability and whether the award was supported by any substantial competent evidence. Claimant’s employment in respondent’s packing house consisted of wrapping, packaging and handling meat products. She handled trays of wieners weighing up to twenty-four pounds and boxes of bacon ranging in weight from six to twelve pounds. She was injured in the course of her employment on March 17, 1966. Following her injury, claimant underwent a course of conservative treatment under the care of Dr. John B. Jarrott, an orthopedic surgeon, until June 8, 1966, when she was operated for a denucleation of a herniated intervertebral disc. Claimant remained under Dr. Jarrott’s care until June 28, 1967, when she was released with what Dr. Jarrott described as a fifteen percent loss of function. A claim for compensation was filed and the matter first came before Examiner Greenleaf on September 14, 1966, when, on motion of claimant, an order was entered awarding temporary total disability for a period of nine weeks at the rate of $42 per week. At a hearing before Examiner Greenleaf on October 7, 1966, the parties stipulated that claimant was still totally disabled. Claimant was found to be entitled to seventeen weeks and three days temporary total disability at the rate of $42 per week, in addition to the nine weeks ordered paid on September 14, 1966. Respondents were ordered to pay temporary total disability at the rate of $42 per week until further order, but not to exceed a total of 415 weeks. On July 17, 1967, respondents made application for review and requested that temporary total disability payments be terminated as of June 28, 1967, the date claimant was released by Dr. Jarrott. Further evidence was submitted and, on August 27, 1968, Examiner Mauch, who replaced Examiner Greenleaf, made the award from which this appeal stems. Examiner Mauch reviewed all of the evidence, which had been submitted during the proceedings, and found claimant’s average weekly wage was $84.80; that she was entitled to sixty-six weeks of temporary total disability at the rate of $42 per week, followed by a seventy-five percent permanent partial general disability at the rate of $38.16 per week for 349 weeks. After computing sums due and paid, or payable, Examiner Mauch awarded the balance of compensation to be paid at the rate of $38.16 per week for 289 weeks or until further order of the director. At the request of respondents, the director reviewed the award of Examiner Mauch and ordered it affirmed. In his order on review the director noted: “. . . The primary issue on review was the nature and extent of claimant’s disability. Dr. John B. Jarrott testified that the claimant had a 15% functional disability and the examiner found that this amounted to a 75% permanent partial work disability. An examination of the record leads the director to conclude that there is ample evidence therein to sustain the examiner’s finding that the claimant is suffering a 75% permanent partial work disability of the body as a whole and that this is the amount of disability he [she] should be compensated for even though his [her] functional disability is somewhat less. See Puckett v. Minter Drilling Company, 196 Kan. 198; Gray v. Beller, 199 Kan. 284, and Mooney v. Harrison, 199 Kan. 162.” On appeal, pursuant to K. S. A. 44-556 (now K. S. A. 1968 Supp. 44-556), the district court adopted the findings and award of the examiner, as affirmed by the director, and entered judgment accordingly. Thereafter respondents perfected this appeal. Their principal attack on the award is directed at the allowance of seventy-five percent permanent partial disability. A two-pronged argument is presented. First, respondents contend an incorrect standard was used in determining the rate of permanent partial disability and, second, the rate awarded is not supported by any substantial competent evidence. Although not in the order presented by respondents, we believe it more logical to first consider the propriety of the test applied by the trial court and then turn to the question of sufficiency of evidence. As we have already pointed out, the director in his order on review recognized the difference between a functional or anatomical disability and a work disability. In this summary of the evidence, Examiner Mauch stated: “In the judgment of the Examiner, the impairment of function rating of 15% does not accurately reflect the claimant’s work disability. Work disability is determined by measuring the claimant’s ability to obtain and retain work like or a similar kind held at the time of her accident. From the employment history of the claimant, she is employed in a laboring capacity at the Winchester Packing Company as well as prior employment. Her educational background and lack of training is not conducive to work except that obtainable in a laboring capacity or classification.” We believe the test applied by the examiner and director, and adopted by the trial court, conforms with the test prescribed by this court for determining loss of earning capacity in Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414, where we held: “The correct standard for determining the loss in earning capacity of an injured workman is the extent to which his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured.” (Syl. ¶ 2.) Our holding in Puckett was adhered to and restated in Mooney v. Harrison, 199 Kan. 162, 427 P. 2d 457, and Gray v. Beller, 199 Kan. 284, 428 P. 2d 833. While respondents admit that loss of function, as found by a doctor, and a partial disability, as found by an examiner, can differ, they assert there still must be some correlation between the two. Respondents contend that the Puckett and Mooney rule was construed too narrowly in its application here. It is argued that Dr. Jarrott’s testimony means that claimant should be able to resume regular work within the limitations of a fifteen percent loss of function and that the examiner put too much emphasis on whether claimant could go back to her same job with respondent Packing Company, when he should have entered the award on her ability to procure work of a similar character in the open labor market. What appears to be inconsistency between a doctor’s theory for rating permanent partial disability and the correct standard prescribed by this court was dealt with in both the Puckett and Mooney decisions. In Puckett we found claimant’s medical witness had clearly deviated from the correct standard of evaluating disability for compensation purposes but his testimony concerning the extent of claimant’s injuries was acceptable, together with other evidence of work disability, in determining permanent partial disability. In discussing this subject in Mooney v. Harrison, supra, we said: “Appellants contend the entire testimony of Dr. Filley should be discredited and thus disregarded because he demonstrated a complete lack of understanding as to disability ratings under Kansas Workmen's Compensation Law. “We cannot agree with appellants’ suggestion. Although they may have established that the doctor was not the best workmen’s compensation attorney, it was no reflection on the doctor’s medical testimony as to the nature and extent of appellee’s injuries. “Regardless of the doctor’s theory for rating permanent partial disability under the Workmen’s Compensation Act, the trial court did not accept his percentage rating. The court was justified in using the doctor’s medical testimony as to the nature and extent of appellee’s injuries in arriving at his own permanent partial disability rating.” (p. 164.) The import of Puckett, as gleaned from the opinion and the futher discussions of the subject in Mooney and Gray, is that it is the function of the trial court to consider the medical testimony concerning loss of function, plus other testimony relating to the extent there has been an impairment of the injured workman’s ability to procure in the open labor market, and to perform and retain, work of the same type and character he was capable of performing before his injury. Taking all of the relative evidence into consideration, it is then the trial court’s function to. determine aá a matter of fact the percentage by which claimant’s ability has been impaired. In the instant case, we do not believe Dr. Jarrott’s testimony expresses a theory deviating from the correct standard. We think a fair analysis of Dr. Jarrott’s testimony is that in finding a general loss of function of fifteen percent, based on disc surgery, he was not attempting to evaluate a work disability for compensation purposes but was establishing a medical or anatomical loss of function amounting to only one facet of claimant’s employability, leaving the ultimate question to be determined by the trier of facts. We believe the record clearly reflects the proper test for determining disability was applied in the proceedings below. The evidence covering the disability rating consisted of the testimony of Dr. Jarrott, William Burger, an employment counselor for the Employment Security Division of the State Labor Department, and that portion of claimant’s testimony bearing on the subject. Bearing in mind that the evidence is not to be weighed by this court and must be considered in the light most favorable to the prevailing party below (Mooney v. Harrison, supra), we briefly summarize the evidence. Claimant testified she was thirty-one years of age, had an eighth grade education, had no special skills or training, had been employed during her entire adult life in manual labor jobs, requiring lifting, walking, bending and stooping; that since her release respondent Packing Company had refused to re-employ her and she has been unable to find other employment because of her disability. In addition to finding a fifteen percent general loss of function, Dr. Jarrott testified that recent x-rays showed claimant had suffered some degeneration in the disc space since surgery; that the lumbo-sacral facets did not match; that she would probably have trouble if she attempted to lift or stand for long periods of time or do anything using her hands over her head; and if she were employed standing and lifting over twenty-five pounds she could anticipate further trouble. Burger testified claimant had been to a great extent eliminated from the manual labor market and her problem is further intensified by her lack of education and training. Although we have limited our presentation of the evidence disclosed in the record, we think the testimony presented amply demonstrates that there was substantial competent evidence to support the trial court’s award. Two other minor points raised by respondents should be mentioned. It is contended that at the hearing on September 14, 1966, counsel stipulated, and Examiner Greenleaf found, claimant’s average weekly wage to be $81.60, and such finding was neither changed nor appealed from in proper time. Therefore, it is argued the trial court erred in finding the average weekly wage to be $84.80. Respondents cited our holding in Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P. 2d 771, that issues are resolved and the record finalized before the examiner, and issues of fact cannot be raised for the first time on appeal to the district court. The principle announced in our holding in Scammahorn is correctly stated by respondents but it is not applicable here. The order of September 14, 1966, was based on proceedings had the preceding day, wherein claimant’s counsel, in answering a question put by the examiner, stated the claimant’s average weekly wage to be $81.60. However, there was no stipulation or finding to that effect. The examiner stated it was only necessary at the time to know that the amount was sufficient to entitle claimant to the maximum temporary total. Counsel for both parties agreed to the examiner’s statement. In the award made by Examiner Mauch on August 27, 1968, the first finding of claimant’s average weekly wage was made and determined to be $84.80, on claimant’s testimony; that she was working a forty hour week at $2.12 an hour. This is the award approved by the director, adopted by the trial court, and appealed from. Respondents complain the award of sixty-six compensable weeks of temporary total disability is excessive by 1.57 weeks. Respondents apparently base their calculations on the interim orders on temporary total disability made by Examiner Greenleaf. An examination of the 1966 and 1967 calendars discloses an interim of sixty-seven weeks between March 17, 1966, the date of injury, and June 28, 1967, the date of claimant’s release from temporary total disability. It appears Examiner Mauch, in finalizing the award on August 27, 1968, subtracted the statutory one week waiting period from the sixty-seven calendar weeks and awarded sixty-six weeks of temporary total. We find no material error in the examiner’s calculation. We find no error in the proceedings below, therefore, the judgment is affirmed.

The opinion of the court was delivered by Price, C. J.: This case grows out of a tax foreclosure action. K. S. A. 79-2804b provides that all actions to open, vacate, modify or set aside any tax foreclosure judgment or any sale made thereunder, must be commenced within twelve months after the date of confirmation of the sale, and that such time limitation is to be construed as a condition precedent to the bringing of any such action and not as a statute of limitations. Under applicable decisions of this court and of the supreme court of the United States the undisputed facts of this case establish that with respect to the service of notice of the tax foreclosure action certain property owner defendants in that action were denied due process of law. More than twelve months after confirmation of the sale in that action those defendants sought—in this action— to set aside the sale of their property as being void. The question here, therefore, is whether the twelve-months time limitation provision of 79-2804b bars them from attacking that sale. The trial court held such provision to be inapplicable and set aside the tax foreclosure sale in question. The purchasers at that sale have appealed. This case was submitted to the trial court on the pleadings and an agreed statement of facts. The background of the matter is this: For many years the Barber county land in question was owned by the Lies family. In 1957 Margaretha Lies owned an undivided one-half interest in both the surface and minerals, and the other undivided one-half interest was owned by her 14 children in equal shares. In that year Margaretha conveyed her undivided one-half mineral interest to her 14 children. Barber county levied a tax on such mineral interest for the year 1957. The tax was not paid. In 1959, 12 of the Lies children conveyed all of their interest in the land—both surface and mineral—to the other 2 children— Barthel N. Lies and Michael J. Lies. Margaretha died in 1966, leaving her interest in the surface of the property to Barthel and Michael. Proper newspaper publication notice of the above mentioned tax delinquency on the one-half mineral interest was given 1958, 1959, 1960,1961 and 1962. The Lies children resided at Andale, in Sedgwick county, and none had ever lived in Barber county. On July 31, 1963, Barber county filed suit to foreclose its tax lien on the mineral interest in question—and on many other tracts and interests not here involved. An exhibit attached to the petition listed all 14 of the Lies children as owners of the mineral interest and Barthel and Michael as the surface owners of record. Summons was issued to the sheriff of Barber county for the 14 Lies children. It was returned as “not found in Barber county.” No summons was ever issued to the sheriff of Sedgwick county and no personal service was attempted or obtained upon any of the Lies children, and they had no actual knowledge of the .pendency of the tax foreclosure action. Pursuant to the “not found” return of the sheriff as to the Lies children, publication service was had.' Without detailing it—it may be said that the affidavit for service by publication—the publication itself—and all proceedings thereunder, including the finding and approval by the court—were in the usual, regular and proper form. In due course the action proceeded to judgment of foreclosure and sale. The mineral interest in question was purchased at the sheriff’s sale by W. Luke Chapin and Ruth Chapin— who are plaintiffs in the present action. The sale to them was confirmed on December 5, 1963, and a sheriff’s deed was issued the next day. A week later Mr. Chapin wrote to the Aylward Drilling Co., the operating lessee, advising it of the tax sale so that Aylward’s records could be corrected accordingly. Aylward did not notify any of its co-lessees or any member of the Lies family about the tax sale after receiving the letter from Chapin. Real estate taxes on the land in question were paid by members of the Lies family at all times up to and including the year 1963 when the tax foreclosure action was filed as to the one-half mineral interest which had been conveyed by Margaretha to her children in 1957. While that mineral deed did not list the addresses of the grantees therein, and the records in the county treasurer’s office did not show their addresses on the mineral interest roll-book— nevertheless— “These addresses could have been discovered by county officials had they referred to the personal property tax rolls and personal property tax receipts as to taxes on the gas produced, or had they referred to real estate tax rolls. Tax receipts for the years 1960, 1961 and 1963 showing the address of members of the Lies family as Andale, Kansas, are attached as Defendants’ Exhibits F. G and H. (See Defendants’ Exhibit E).” In February 1967 the Chapins—the purchasers at the tax foreclosure sale in 1963, and who, in the meantime, had paid taxes on the mineral interest in question—brought this action against Aylward and Cities Service Gas Co. for damages for conversion of' gas produced and sold. For our purposes the issues between those parties need not be noted. Hereafter the Chapins will be referred to as plaintiffs. On June 1,1967, Barthel and Michael Lies, whose mineral interest had been sold to plaintiffs at the tax foreclosure sale, filed, as intervening defendants, an answer, which, by way of an affirmative defense, alleged their lack of notice of the tax foreclosure action until more than twelve months after the execution of the sheriff’s deed; that their addresses were at all times readily available to the county officials so that actual notice of the pendency of the tax foreclosure action could have been given to them personally; that the lack of personal notice to them was in violation of their rights under both the federal and state constitutions, and that the sheriff’s deed to the purchasers (plaintiffs) was therefore null and void. As stated, this case was submitted to the trial court on the pleadings and an agreed statement of facts—a portion of which is quoted, above. In its judgment the court found and ruled that under the authority of Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858, the sale of the mineral interest owned by the intervening defendants Lies was void because they had not been given personal notice of the pendency of the tax foreclosure action as required by the federal and state constitutions; that defendants Lies had not been guilty of laches and were not estopped from asserting their rights and that Aylward (the operating lessee) was not their agent, and that the twelve-months time limitation provision of K. S. A. 79-2804b was not applicable to the case. Accordingly, it was held that the sheriff’s deed of December 6, 1963 issued to the plaintiffs in this action be set aside. Defendants Lies were directed to pay into court for the benefit of plaintiffs all mineral taxes assessed against the mineral interest in question for the years 1964, 1965, 1966 and 1967, with interest, plus their proportionate costs of the tax foreclosure case and their proportionate court costs of this action. It was further ordered that plaintiffs were not entitled to damages, and that Aylward and other named defendants had a valid and subsisting oil and gas lease as their interests were set out in the stipulation of facts. Plaintiffs appeal from that judgment. We thus have this situation: The undisputed facts are that the whereabouts and addresses of defendants Lies were at all times readily available so that they could have been personally served with summons in the 1963 tax foreclosure action. Instead—service by publication was had, but they had no actual knowledge of the pendency of that action. The precise question, therefore, narrows down to this: Did the lack of personal service amount to a denial of due process of law—and, if so—does the twelve-months time limitation provision of K. S. A. 79-2804b nevertheless bar them from attacking the tax foreclosure sale? In addition to the provisions of 79-2804b mentioned earlier in this opinion, the section provides that the petition in every such action shall show that it was commenced within the twelve-months time limitation, and that if any action is not commenced within that period or if the petition does not show it was so commenced—the court shall have no jurisdiction of the action. The sweeping provisions of the statute have been before this court in a number of cases. See Shell Oil Co. v. Board of County Comm’rs, 171 Kan. 159, 231 P. 2d 220 (opinion on rehearing, 171 Kan. 595, 237 P. 2d 257; appeal dismissed for the want of a substantial federal question, 342 U S 938, 96 L ed 698, 72 S Ct 562) and Phillips Petroleum Co. v. Moore, 179 Kan. 482, 297 P. 2d 183. Those decisions are authority for the proposition that the time limitation provision of the statute is absolute—regardless of any claimed infirmity in a tax foreclosure action. Adherence to the “absolute” rule would mean that here the intervening defendants Lies were out of time, for their rights were not asserted until June 1, 1967, when they filed their intervening answer—which was some three and one-half years subsequent to the date of confirmation of the tax foreclosure sale. In Walker v. City of Hutchinson, 178 Kan. 263, 284 P. 2d 1073, the city condemned a part of Walker’s property for street purposes. The appraisers who were appointed to determine compensation were required by statute to give at least 10 days notice of their proceedings either in writing or by one publication in the official city paper. They chose the latter method of giving notice. Walker later sought an injunction to prevent the alleged trespass on his property alleging that he had not been notified of the proceedings, knew nothing of them, and that the publication .notice was insufficient to satisfy the Fourteenth Amendment’s requirements of due process. The trial court denied relief. On appeal, this court affirmed —holding that the notice by publication did not deprive him of due process of law. Upon appeal to the supreme court of the United States that court reversed (Walker v. Hutchinson City, 352 U S 112, 1 L ed 2d 178, 77 S Ct 200) and held that the newspaper publication alone was not adequate notice as required by due process, where, as the facts showed, the owner’s (Walker’s) name was known to the condemning city and was on the official records. In so holding the court followed the rule announced in Mullane v. Central Hanover Tr. Co., 339 U S 306, 94 L ed 865, 70 S Ct 652, to the effect that, if feasible, notice must reasonably be calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests. It will be noted that our decision in the Phillips case, above, which gave sweeping approval to publication service in a tax foreclosure action where it was contended personal service could have been had—was handed down on May 5, 1956. The Walker case, above, was decided by the supreme court of the United States on December 10, 1956. In several respects the recent case of Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858, relied on by the trial court, bears a striking similarity to the case now before us. Pierce lived on his property in Leavenworth county. In a tax foreclosure action summons was issued for him, but was returned by the sheriff of Leavenworth county as not served for the reason that, after diligent search, he was unable to locate him (Pierce) in the county. Thereafter, publication service was had and the action proceeded to judgment and sale of Pierce’s property. He later sued to set aside the sale, alleging that the tax foreclosure proceedings were void in that in the affidavit for publication service it was knowlingly and falsely alleged that personal service could not be had on him— when in truth and in fact he resided on the premises. Following a trial, the court set aside the sale. The purchaser at the sale, Davis, appealed. This court affirmed, and, in doing so, discussed in detail the requirements of due process as laid down by the supreme court of the United States in the Mullane and Walker, cases, above. While our decision recognized that K. S. A. 79-2801 et seq. provides a full, complete and comprehensive procedure for the foreclosure of tax liens and the sale of real estate thereunder, including the institution of actions or proceedings to open, vacate or set aside any judgment entered, or any sale made under the provisions of the act—to the exclusion of other statutes (K. S. A. 60-309) relating to the opening of default judgments rendered on publication service—it nevertheless was held that the failure to serve the landowner (Pierce) with personal notice in the tax foreclosure action resulted in his being deprived of his property without due process of law (syl. 8). There as here—the whereabouts and residence of Pierce could have been ascertained by the very simple expedient of examining the courthouse records. It is quite true, as urged by plaintiffs here—that in the Pierce case the action to set aside the sheriff’s sale was brought within twelve months from the date of confirmation of sale, and therefore this court was not called upon to decide the precise question presented here as to the application of the limitation period when the action to set aside is brought after that period. In the Pierce case, syl. 2 and corresponding portions of the opinion of the Phillips case were disapproved. Syl. 5 and 6 of the Pierce case read: “The requirements of due process contemplate that, where feasible, notice of legal proceedings be given by means reasonably calculated to inform all parties having legal rights which might be directly and adversely affected thereby. “Where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal Constitution or § 2 of the Bill of Rights of the Kansas Constitution.” Notwithstanding the purpose and legislative intent of K. S. A. 79-2804b to bring about finality and stability to tax titles unless attacked within the twelve-months period—we hold that the provision in question must give way to a situation where the facts clearly establish a denial of due process of law. We do not mean to imply—nor has the supreme court of the United States ever declared—that constructive service by publication will never satisfy constitutional requirements of due process. Indeed, there undoubtedly are many instances where the notice provided by publication service is the only method possible. But—just as in the Pierce case—such was not true in the case before us. We hold, therefore, that as to the intervening defendants Lies— the proceedings in the tax foreclosure action resulted in their being deprived of their property without due process of law—and that the twelve-months time limitation provision of 79-2804b is inapplicable. Other questions raised in the pleadings and briefs thus become moot and require no discussion. The trial court was correct in ruling that the sale of the mineral interest owned by the intervening defendants Lies was void and that they were not barred from attacking it by the twelve-months time limitation provision of K. S. A. 79-2804b. The judgment is affirmed.

The opinion of the court was delivered by Schroeder, J.: This is a proceeding instituted pursuant to K. S. A. 60-1507 to vacate a judgment and sentence to life imprisonment upon the defendant’s conviction of murder in the first degree in the year 1956. Appeal has been duly perfected from the refusal of the trial court to grant relief. The underlying questions are whether a confession made by the appellant while in custody and prior to trial was properly admitted into evidence before the jury in the trial of the criminal action, and whether the error, if any, was waived by the appellant’s failure to take an appeal from the conviction. On the 3rd day of April, 1956, a complaint was filed in the district court of Sedgwick County, Kansas, by Detective Floyd Hannon of the Wichita police department. The complaint charged Robert E. Lee Barnes and his wife with first degree murder. Pursuant to a warrant Detective Hannon was dispatched to Miami, Florida, where Barnes and his wife were in custody. As a result of conversations between Barnes and Hannon at the Miami, Florida, police station, Barnes gave both an oral and a written confession which is the subject of this litigation. As a result of the statements made by Barnes in Florida the charges against Barnes’ wife were dropped and only Barnes was returned to the state of Kansas. Barnes contends by reason of threats designed to implicate his wife, and the statement of Hannon that their child would be placed in the custody of juvenile authorities, his confession was involuntarily made. At the trial of the criminal action the voluntariness of Barnes’ confession was determined by the trial court in a collateral proceeding, but the trial court admitted only the testimony of Detective Hannon, holding that all the state was required to do was make a prima facie showing that the confession was voluntarily made. The trial court refused to hear the testimony of Barnes in the collateral proceeding conducted in the absence of the jury. The trial court held if Barnes desired to present testimony challenging the voluntary character of his confession it was defensive matter for the jury to hear. It also ruled that if Barnes took the stand to testify he would be subject to cross examination on all matters in connection with the offense charged. This was the situation presented in State v. Milow, 199 Kan. 576, 433 P. 2d 538, where this court held such procedure violated the requirements of Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205. There the Supreme Court of the United States held a collateral proceeding to determine the voluntariness of a confession, where the inquiry was not based upon a consideration of the totality of the circumstances, violated the due process clause of the Fourteenth Amendment to the Federal Constitution. In the 1507 proceeding presently before this court on appeal the trial court granted the appellant an evidentiary hearing at which he was present and testified. His court-appointed counsel also testified. The hearing was conducted on the 13th day of January, 1968, and the appellant was assisted by court-appointed counsel. As a result of such evidentiary hearing the trial court found “A proper hearing was not held” at the trial of the criminal action to determine the voluntariness of the appellant’s confession, as required by Jackson v. Denno, supra, and it ordered that such hearing be granted. On the date set for such, hearing, January 19, 1968, the trial court reconsidered its ruling and reversed its position, holding the appellant had waived the constitutional issue by failing to take an appeal from the conviction. The trial court said: “. . . In view of my finding that it was the movant’s decision to let the judgment and verdict stand as it was, I certainly can’t find that there were any exceptional or that there are any exceptional circumstances excusing the failure to appeal. Based upon Rule 121 (c) and the cases cited by the state this morning, if there is not an exceptional circumstance excusing failure to take an appeal, then even constitutional issues have been waived.” At the evidentiary hearing in the 1507 proceeding both the appellant’s two court-appointed counsel and the appellant testified as to discussions concerning an appeal from the murder conviction. As a result of the evidence presented the trial court found the appellant’s final determination not to appeal was based upon the law involved and the evidence presented at the time of the trial in the criminal action, and his decision was not based upon lack of funds. The record discloses letters were written by counsel appointed for the appellant in the criminal proceeding for the purpose of obtaining money to file an appeal, but his 1956 counsel testified at the hearing in the 1507 proceeding the appellant was unable to obtain any money. These letters were proffered at the motion for rehearing of the 1507 proceeding but were not admitted. The record further discloses that early in 1960 the appellant wrote a letter to his court-appointed attorney in the 1956 trial who responded as follows: “. . . You will recall that no appeal was ever taken, largely because I defended you on an appointment basis for a total fee of $140.00, and at that time there was no provision for an appointment counsel for appeals. As a consequence so far as I know, no transcript of the case was ever prepared.” On appeal the appellant contends his right to due process of law as provided by the Fourteenth Amendment to the Federal Constitution was violated during the trial in 1956. This point is well taken in the light of Jackson v. Denno, supra, State v. Milow, supra, and subsequent federal decisions. Under State v. Seward, 163 Kan. 136, 181 P. 2d 478, and State v. Hayes, 106 Kan. 253, 187 Pac. 675, as construed in State v. Milow, supra, it was trial error under existing Kansas law to admit the appellant’s confession upon the limited evidence presented in the collateral proceeding. Viewed as of the time the appellant’s 1507 hearing was conducted before the trial court in 1968, the limited collateral proceeding conducted by the trial court at the appellant’s murder trial in 1956 to determine the voluntariness of the appellant’s confession also violated the appellant’s constitutional right because Jackson v. Denno, supra, has been given retroactive application. The Jackson decision was held applicable to another case involving a federal habeas corpus proceeding which was pending at the time it was rendered. (McNerlin v. Denno, Warden, 378 U. S. 575, 12 L. Ed. 2d 1041, 84 S. Ct. 1933.) In Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772, the Supreme Court said: “. . . Similarly, Jackson v. Denno, 378 U. S. 368 (1964), which involved the right of an accused to effective exclusion of an involuntary confession from trial, was itself a collateral attack. In each instance we concluded that retroactive application was justified because the rule affected ‘the very integrity of the fact-finding process’ and averted ‘the clear danger of convicting the innocent.’ Linkletter v. Walker, 381 U. S., at 639; Tehan v. Shott, 382 U. S., at 416.” (pp. 727, 728.) Further in the opinion the court stated: “Finally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. We gave retroactive effect to Jackson v. Denno, supra, because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature. . . .” (pp. 728, 729.) The appellant also contends his right to the effective assistance of counsel and equal protection under the due process clause of the Fourteenth Amendment to the Federal Constitution was denied and thereby deprived him of a constitutional right in 1956, because the Kansas law at that time did not authorize the appointment of counsel to assist him in the perfection of an appeal from his conviction and sentence. This point is well taken. In 1956 G. S. 1949, 62-1701 provided that an appeal to the Su preme Court of the state of Kansas may be taken by a defendant as a matter of right from any judgment against him, but no statute or rule of the Supreme Court of the state of Kansas required the appointment of counsel on appeal, except in a case where an indigent defendant had been found guilty of murder in the first degree and his punishment fixed at death. (Smith v. Crouse, 192 Kan. 171, 176, 386 P. 2d 295.) After the appellant’s conviction of murder in the first degree he filed no notice of appeal and made no request for the appointment of counsel to assist him in an appeal. The latter, of course, would have been futile. His then court-appointed counsel filed a motion for a new trial raising as one of the trial errors the admission of the appellant’s confession in evidence at his trial in 1956. At the hearing in the 1507 proceeding the appellant’s court-appointed counsel in 1956 testified they did not think the collateral hearing on voluntariness of the confession was sufficient to comply with Kansas law and might have constituted error. Since the appellant’s conviction in 1956 the Supreme Court of the United States in Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814, rehearing denied 373 U. S. 905, 10 L. Ed. 2d 200, 83 S. Ct. 1288, ruled that it was a denial of the equality demanded by the Fourteenth Amendment to deny an indigent defendant the right to counsel to assist in the perfection of his appeal from an adverse judgment. The court there stated: “. . . There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.” (pp. 357, 358.) The United States Court of Appeals elaborated on Douglas v. California, supra, in Chase v. Page, 343 F. 2d 167 (10th Cir. 1965), where it said: “We know that the State of Oklahoma may, consistently with Fourteenth Amendment due process, fail to provide for appeal in criminal cases, or it may provide for an appeal upon such terms as it deems appropriate. [Citations omitted.] But, once an appeal as of right is recognized, it must be afforded to the rich and the poor alike. To that end an indigent person is constitutionally entitled to the assistance of counsel to insure the equal exercise of the right. Specifically, the convicted person is entitled to advice of counsel on the issue of his financial ability to provide an adequate record to enable the appellate court to determine the merits of his appeal as if he were a non-indigent person. See Douglas v. People of the State of California, 372 U. S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811, rehearing denied 373 U. S. 905, 83 S. Ct. 1288, 10 L. Ed. 2d 200; Lane v. Brown, 372 U. S. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892; Draper v. State of Washington, 372 U. S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899.” (p. 170.) The court there further said in speaking of the federal law: “. . . This court has recently held that the time for filing an appeal under Rule 37 (a) (2) of the Federal Rules of Criminal Procedure does not commence to run until a federally convicted defendant has been advised of his right to appeal and effective assistance of counsel afforded. And, a convicted, confined person who has not been afforded the assistance of counsel concerning his right of appeal and the exercise thereof may collaterally attack his judgment of sentence. . . .” (pp. 170, 171.) In accordance with the import of the Douglas decision, the Supreme Court of Kansas adopted Rule No. 56 on April 16, 1963, (now appearing in Prefatory Rule No. 1 [f], 201 Kan. xv), which reads: “ ‘When any defendant has been convicted of a felony and he is without means to employ counsel to perfect an appeal to the supreme court, he may make affidavit to that effect, stating that he intends to appeal and requesting the appointment of counsel. The judge of the court in which such defendant was convicted shall, when satisfied that the affidavit is true, appoint competent counsel to conduct such appeal.’ ” The effect of the Douglas decision was discussed in Porter v. State, 196 Kan. 732, 414 P. 2d 56. There it was held “the failure to prosecute a pro se appeal, . . . due to the lack of advice or assistance of counsel at any time concerning the appeal, constitutes a denial of due process.” (p.734.) (Emphasis added.) Furthermore, Douglas v. California, supra, has been given retroactive application. The Kansas Supreme Court in Smith v. Crouse, supra, ruled that Douglas v. California, supra, was not entitled to be applied retroactively, but was promptly reversed in Smith v. Crouse, Warden, 378 U. S. 584, 12 L. Ed. 2d 1039, 84 S. Ct. 1929, in a per curiam opinion. The retrospective application of Douglas v. California, supra, is also affirmed by Daegele v. Kansas, 375 U. S. 1, 11 L. Ed. 2d 44, 84 S. Ct. 89, which reversed the Kansas Supreme Court without an opinion, citing the Douglas case. For other federal decisions touching upon the point, see Spaulding v. Taylor, 234 F. Supp. 747 (D. Kan. 1964); and Donnell v. Swenson, 258 F. Supp. 317 (W. D. Mo. 1966). It follows any attempt the appellant might have made for the assistance of counsel to perfect an appeal from his murder convic tion in 1956 would have been futile. It cannot be said he had the effective benefit of counsel after his trial and conviction. The trial court found the appellant’s constitutional right to have counsel appointed to assist him in an appeal was immaterial because the appellant had decided to let the judgment and verdict stand without taking an appeal. Did the appellant waive any reviewable error by failing to perfect an appeal to the Kansas Supreme Court within tihe statutory period after the 1956 judgment of conviction and sentence? When the remedy afforded a prisoner in custody under sentence of a court of general jurisdiction, claiming the right to be released, may be invoked under K. S. A. 60-1507 is set forth in Supreme Court Rule No. 121 (c) (201 Kan. xxxiii). Insofar as this proceeding is concerned Rule No. 121 (c) (3) is pertinent. It provides: “. . . (3) a proceeding under section 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” (Emphasis added.) The appellant argues the provisions of K. S. A. 60-1507 are relatively new to Kansas law, having been enacted as a part of the Laws of 1963, ch. 303, which became effective January 1, 1964. To implement the proceedings under 60-1507 the Supreme Court on the 16th day of October, 1964, promulgated Rule No. 121 (201 Kan. xxxii). The appellant argues there was no restriction on the filing of a motion for relief under the statute as is presently made by Rule No. 121 (c) (3), and he contends the limitations imposed by the rule cannot be applied retroactively to prohibit rights existing under the statute prior to October 16, 1964. (Citing McQueeney v. State, 198 Kan. 642, 426 P. 2d 114.) A similar contention was made in King v. State, 195 Kan. 736, 408 P. 2d 599. There the appellant contended Rule No. 121 (c) (2) should not have been applied- to him because it was adopted after his action was filed. There the court said: “. . . We find no merit in this claim, for we believe the rule is but declarative of the law which long has been applicable to actions of this character. “In our judgment, it was the intention of the legislature when it enacted K. S. A. 60-1507 that proceedings brought thereunder should be coextensive with habeas corpus proceedings. . . .” (p.738.) The court then points out the law in habeas corpus was in accord with the rule. The scope of collateral attack under habeas corpus prior to the enactment of Rule No. 121 was the same as the rule. (Strong v. Edmondson, 177 Kan. 247, 277 P. 2d 585; and Lee v. Hoffman, 179 Kan. 303, 293 P. 2d 1010.) The exception to the rule noted by the court in Perrin v. State, 196 Kan. 228, 410 P. 2d 298, and in McQueeney v. State, supra, was based on a portion of the rule which was not declaratory of the law in existence. Prior to the rule there was no form in habeas corpus proceedings prescribed by law requiring the petitioner to list all of his grounds for relief. Here the scope of the petitioner’s remedy was not changed by Rule No. 121. The errors with which we are concerned in the instant case affect the appellant’s constitutional rights, and the immediate question posed is whether there are exceptional circumstances excusing the appellant’s failure to appeal. The appellant analyzes the cases in which Rule No. 121 (c) (3), formerly No. 121 (c) (4), has been cited, and concludes that no definition or standard has been set forth concerning “exceptional circumstances.” Without burdening our opinion by a review of these cases, it may be conceded our decisions under this rule have heretofore established no definite guidelines to follow. This has been occasioned by several factors. The statutory provisions of K. S. A. 60-1507 are relatively new; recent decisions of the United States Supreme Court regarding indigent persons accused of crime have changed existing law; and the United States Supreme Court has enlarged the federal constitutional rights of persons accused of crime by construction of the United States Constitution. These changes have resulted in the presentation of unique questions in criminal appeals and in appeals from proceedings instituted pursuant to 60-1507, supra. To avoid proliferating litigation and give meaningful review in such cases, this court has attempted to consider points raised by persons accused of crime at the first opportunity, where it appears they are entitled to a review. Accordingly, the “exceptional circumstances” affording review in a 1507 proceeding, where the errors have not been raised on appeal, have in the past been rather loosely construed. (For the most recent cases, see Holt v. State, 202 Kan. 759, 451 P. 2d 221; Bush v. State, 203 Kan. 494, 454 P. 2d 429; and Peterson v. State, 203 Kan. 959, 457 P. 2d 6.) On this point what the Supreme Court of Pennsylvania has said in Com. ex rel. Harbold, Appellant v. Myers, 417 Pa. 358, 207 Atl. 2d 805, is expressive of the action heretofore taken in Kansas. The court there said: “. . . This Court has exercised particular vigilance to see that, on both direct and collateral review, claims of federal, as well as state, constitutional rights are comprehensively and justly entertained and decided by our state courts. Federal rights concern us as much as any other rights which we are charged to enforce. This practice has frequently been maintained even where established post-trial procedures may have been negligently or inadvertently ignored. Indeed, the practice has been followed even where there has been some possibility of a conscious choice to forgo the usual direct review provided, but where the record nevertheless does not clearly support a finding of intelligent, understanding waiver of orderly review procedures. . . .” (p. 366.) As the criminal law becomes more settled, guidelines will gradually emerge. This court in State v. Richardson, 194 Kan. 471, 399 P. 2d 799, recognized that 60-1507, supra, was new to Kansas law and followed the language of a federal statute. (28 U. S. C. § 2255, originally enacted in 1948.) The court then said, “It may therefore be said the body of federal law which has developed under § 2255, supra, should be given great weight in construing the provisions of 60-1507, supra, in the Kansas law.” (p. 472.) Looking then to the federal law to see whether the appellant’s failure to appeal his 1956 conviction constituted a waiver of his constitutional rights which had been denied him, as heretofore indicated, we find some landmark cases in point. In Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, the court was confronted with the question as to whether a petitioner had waived his constitutional right. In the opinion the court summarized the federal law to be: (1) That courts will indulge every reasonable presumption against a waiver of fundamental rights, and do not presume acquiescence in their loss; (2) that a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; (3) that the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused; and (4) that federal habeas corpus is available to a defendant who, without having effectively waived his constitutional rights, has been convicted and sentenced, and to whom expiration of time has rendered relief by an application for a new trial or by an appeal unavailable. The Supreme Court of the United States in Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822, after an exhaustive discussion of the question of waiver and the citation of many prior decisions of that court, held that a defendant who had been convicted by the use of a coerced confession in a state court could obtain relief in a federal habeas corpus proceeding, notwithstanding the fact of a procedural defect in the state courts which barred any challenge to the conviction in state courts. In the opinion the court said: “. . . We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. “But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U. S. 458, 464—‘an intentional relinquishment or abandonment of a known right of privilege’—furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits—though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default. Cf. Price v. Johnston, 334 U. S. 266, 291. At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. Cf. Carnley v. Cochran, 369 U. S. 506, 513-517; Moore v. Michigan, 355 U. S. 155, 162-165. A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court’s finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question. E. g., Rice v. Olson, 324 U. S. 786. “. . . Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus. Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. . . .” (pp. 438-441.) The state relies upon Thornton v. United States, 368 F. 2d 822 (D. C. Cir. 1966), and quotes at length from the language in the opinion. In a five to three decision in Kaufman v. United States, 394 U. S. 217, 22 L. Ed. 2d 227, 89 S. Ct. 1068, the United States Supreme Court rejected the rule announced in the majority opinion in Thornton and adopted the reasoning of the dissent. In Kaufman the court held: (1) That a federal prisoner’s claim that he was convicted on evidence obtained in an unconstitutional search and seizure was cognizable in a postconviction proceeding under 28 U. S. C. § 2255, it not being necessary that there be a showing of special circumstances; and (2) that failure to appeal from a conviction did not deprive a federal postconviction court of power to adjudicate the merits of constitutional claims. It is the state’s contention that Kansas follows the Thornton rule— that there must be exceptional circumstances excusing the failure to appeal, to authorize collateral attack upon a judgment, even as to errors affecting constitutional rights. The effect of a change in constitutional law or a change in the interpretation of constitutional law on waiver has been considered in a number of cases. After the exclusionary rules announced in Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961), applied retroactively to cases that had not become final at the time of the decision, courts have held that failure to object to the introduction of illegally obtained evidence did not constitute a waiver of the accused’s right. (See United States v. Maroney, 339 F. 2d 710 [3rd Cir. 1965]; and Dillon v. Peters, 341 F. 2d 337 [10th Cir. 1965].) The decided cases apply the same principle of nonwaiver to constitutional changes of law or interpretation brought about by the Jackson v. Denno decision which is retroactively applied. Perhaps the most persuasive authority for the proposition that Jackson v. Denno is to be applied to convictions already finalized, even though no specific objection was made that the judge did not rule on voluntariness prior to submitting the confession to the jury, is Jackson v. Denno itself. Jackson was convicted in 1960 or 1961. Although an objection was made as to the confession of Jackson, the objection was on the ground that the confession was involuntary, not the jury determination of voluntariness on which Jackson was ultimately decided. An appeal was taken, but this point was not raised until later during federal habeas corpus proceedings. In fact, the dissenting opinions commented on the failure to raise the question at trial and on appeal and on the fact that the question was not properly before the court or properly briefed. Before the Jackson v. Denno decision was a day old, it was relied upon to reverse eleven cases in which the Jackson v. Denno principle was not the principal point, if raised at all. (See Jackson v. Denno, supra, footnote 9, p. 406.) Justice Black, with whom Justice Clark joined, dissenting in part and concurring in part, stated: “. . . Certainly if having the voluntariness of their confessions passed on only by a jury is a violation of the Fourteenth Amendment, as the Court says it is, then not only Jackson but all other state and federal prisoners already convicted under this procedure are, under our holding in Fay v. Noia, 372 U. S. 391, entitled to release unless the States and Federal Government are still willing and able to prosecute and convict them. Cf. Doughty v. Maxwell, 376 U. S. 202; Pickelsimer v. Wainwright, 375 U. S. 2. . . .” (p. 406.) Without further burdening this opinion with federal decisions, counsel for the appellant in a commendable brief cite numerous federal decisions in which relief was granted on writs of habeas corpus from pre Jackson v. Denno trials, and also in which relief was granted on appeals from pre Jackson v. Denno trials. The brief may be found on file in the state library for those interested. In connection with this point two cases deserve mention. In Proctor v. Anderson, 361 F. 2d 557 (D. C. Cir. 1966), the matter came before the court on a writ of habeas corpus raising the Jaclcson issue. The petitioner had been tried and sentenced in 1963 and appealed raising the contention that a statement had been taken in violation of Mallory v. United States, 354 U. S. 449, 454, 1 L. Ed. 2d 1479, 77 S. Ct. 1356. Although Jackson v. Denno, supra, had been decided before the appeal was completed, it was not considered because the petitioner at no stage of the proceedings sought a hearing and determination on the issue of voluntariness of his confession. Two weeks after that decision the petitioner filed a petition for rehearing en banc. There was no suggestion whatever of a claimed Jackson v. Denno issue. The petition for rehearing en banc was denied and the petitioner sought certiorari. One month before the Supreme Court denied certiorari, the petitioner raised the Jackson v. Denno issue by filing a supplemental petition for rehearing en banc. In it he claimed, for the first time, that the district court had erred in submitting to the jury the issue of voluntariness of his confession. The supplemental petition was denied in Proctor v. United States, 343 F. 2d 317 (D.C. Cir. 1955), and no appeal was taken from that order of denial. In the dissenting opinion Judge Bazelon stated: “. . . This claim, it is further alleged was not argued on appeal because it was not supported by then-existing law, and was not argued in the earlier petition for rehearing en banc because counsel was not then aware of the Supreme Court decisions in Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 1028 (1964); and Muschette v. United States, 378 U. S. 569, 84 S. Ct. 1927, 12 L. Ed. 2d 1039 (1964). Petitioner’s claim appears to have substantial merit. . . .” (p. 317.) One month later in Proctor v. Anderson, supra, the petitioner filed a petition for a writ of habeas corpus again raising the Jackson v. Denno issue. That petition was treated as a motion for relief under § 2255, and the United States Court of Appeals for the District of Columbia Circuit held that relief should be granted. In the opinion it was stated: “It appearing that the trial judge referred the question of voluntariness of the confession to the jury without first making that determination himself. “It is ordered that this case be, and it is hereby, remanded to the District Court for hearing on voluntariness of the confession admitted in evidence. Jackson v. Denno, . . .” (p.558.) A case decided by the Supreme Court of Michigan bearing on the point presently before this court is People v. Ubbes, 374 Mich. 571, 132 N. W. 2d 669. The appellant had no appeal from his conviction as a matter of right because the trial took place in 1961. The court granted leave to appeal upon application, but limited the appeal to three questions raised in the application: (1) Was defendant’s confession obtained while defendant was held in custody without being taken before a magistrate admissible? (2) was defendant’s confession involuntary as a matter of fact? and (3) was there an illegal search and seizure? The court stated: “Diligent defense counsel, both after the preliminary examination and in advance of trial, by proper motion, raised all the obvious constitutional issues: illegal search and seizure, illegal arrest, and illegal confinement, and by motion sought to suppress the admission of the arc welder and defendant’s alleged confession.” (p. 575.) Further in the opinion it was said: “While we granted a limited review of this case on application for leave to appeal, the advent of the decision of the United States Supreme Court in Jackson v. Denno, . . . mandates our expansion of the scope of review. Under the rule we adopted after Jackson, supra, (see our decision on rehearing in People v. Walker, 374 Mich. 331), we perforce must remand here, at least for a separate determination of the issue of voluntariness. . . .” (pp. 575, 576.) (Emphasis added.) A good discussion on the waiver of the Jackson v. Denno issue may be found in United States v. Brierly, 269 F. Supp. 753 (E. D. Pa. 1967). In view of the federal decisions we are not inclined to dispose of the Jackson v. Denno issue presented on any theory of waiver. In spite of the trial court’s finding, we hold the state has not as a matter of law met the heavy burden cast upon it to show that the appellant intentionally relinquished or abandoned a known right or privilege. In 1956 at the time of the appellant’s trial, Stein v. New York, 346 U. S. 156, 97 L. Ed. 1522, 73 S. Ct. 1077, was the law of the land. Among other things it held due process was not violated by state law under which the question of voluntariness of an accused’s confession is left to a jury for ultimate determination by a general verdict, even though a general verdict of guilty afforded no basis to determine whether the confession issue was decided in the accused’s favor. In 1956 Kansas law was governed by the evidentiary rule set forth in State v. Seward, supra, which is said to support the “Wig-more” or “Orthodox” rule whereby the judge makes a ruling on voluntariness prior to admission into evidence, and the jury considers voluntariness as it affects credibility or weight to be given to the confession. However, the opinion in State v. Seward, supra, does not go into the degree or manner in which evidence is to be received in the collateral proceeding, and it cannot be said with certainty the ruling on voluntariness made by the trial judge in the trial of the appellant in 1956 would have been stricken down as an inadequate hearing prior to the Jackson v. Denno decision. The trial judge in the appellant’s 1956 trial did hold a collateral hearing out of the presence of the jury and made a finding of voluntariness. (This is argued by the state to uphold the trial court’s decision.) A collateral hearing almost identical to that given the appellant in 1956 was first stricken down by the Kansas Supreme Court in State v. Milow, supra, in 1967. In Milow the state in its brief argued and contended that such hearing met the necessary requirements of Jackson v. Denno on voluntariness. In Milow this court specifically ruled for the first time that the trial court must hear more than the state’s evidence in determining voluntariness. At the hearing granted the appellant in his 1507 proceeding there was no testimony, nor was any offered, which comes close to meeting the requirements o£ waiver set forth in Fay v. Noia, supra, and Johnson v. Zerbst, supra. There has been no testimony or evidence that the specific issue concerning the lack of a Jackson v. Denno hearing was raised during the trial, in the motion for a new trial, or if discussed with the appellant. In other words, there is no showing that the appellant was informed of the issue—that he had been denied due process of law in the 1956 trial—and it cannot, therefore, be said he made an “intentional relinquishment or abandonment of a known right or privilege,” (p. 464) as required by Johnson v. Zerbst, supra. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights. It cannot be overlooked that at the time of the appellant’s trial in 1956 the state of Kansas had no procedures or laws in existence by which the appellant, an indigent, could have had the assistance of counsel on appeal, or a copy of the transcript of the trial. Another facet of this case parallels Fay v. Noia, supra. On November 14, 1956, the appellant was tried for first degree murder in Wichita, Kansas. Following the trial and before argument on the motion for a new trial, the rumor spread that eleven members of the jury voted for the death penalty on the first ballot; ten on the second ballot; and on the third ballot all jurors voted in favor of the life sentence. This was confirmed by notes made on the jury sheet of the appellant’s trial counsel. In the November 28, 1956, issue of the Wichita Reacon newspaper, an article appeared which stated: “An all male jury found Barnes guilty of first degree murder November 20 after deliberating but four hours. “The hangman’s noose hung over Barnes with eleven men on the twelve man jury voting in favor of the death penalty for the first half hour. “The second ballot shówed ten men in favor of the death penalty.” This must have been known to the appellant although the record does not disclose that he did. The record does not disclose the reasons for the appellant’s failure to take an appeal. The existence of exceptional circumstances in such a situation is illustrated in Fay v. Noia, supra, where the defendant had intentionally chosen not to appeal, but the waiver was held not to be binding on him. In the opinion the court there said: “The application of the standard we have adumbrated to the facts of the instant case is not difficult. Under no reasonable view can the State’s version of Noia’s reason for not appealing support an inference of deliberate bypassing of the state court system. For Noia to have appealed in 1942 would have been to run a substantial risk of electrocution. His was the grisly choice whether to sit content with life imprisonment or to travel the uncertain avenue of appeal which, if successful, might well have led to a retrial and death sentence. See, e. g., Palko v. Connecticut, 302 U. S. 319. He declined to play Russian roulette in this fashion. This was a choice by Noia not to appeal, but under the circumstances it cannot realistically be deemed a merely tactical or strategic litigation step, or in any way a deliberate circumvention of state procedures. This is not to say that in every case where a heavier penalty, even the death penalty, is a risk incurred by taking an appeal or otherwise foregoing a procedural right, waiver as we have defined it cannot be found. Each case must stand on its facts. In the instant case, the language of the judge in sentencing Noia, see note 3, supra, made the risk that Noia, if re-convicted, would be sentenced to death, palpable and indeed unusually acute.” (pp. 439, 440.) Noia had stated that while he was aware of his right to appeal, he did not appeal because he did not wish to saddle his family with an additional financial burden and he had no funds of his own. The gist of his lawyer’s testimony was that Noia was also motivated not to appeal by fear that if successful he might get the death sentence if convicted on a retrial. The trial judge, not bound to accept the jury’s recommendation of a life sentence, had said when sentencing him, “ 1 have thought seriously about rejecting the recommendation of the jury in your case, Noia, because I feel that if the jury knew who you were and what you were and your background as a robber, they would not have made a recommendation. But you have got a good lawyer, that is my wife. The last thing she told me this morning is to give you a chance.’” (Fay v. Noia, supra, footnote 3, p. 397.) If the belief that the jury almost hanged the appellant entered into a decision not to appeal, exceptional circumstances exist under the doctrine of Fay v. Noia, supra, and waiver cannot be found. But the appellant’s choice was more tragic than Noia’s, because the record discloses, according to members of the jury who were recently found and questioned, the rumor was totally untrue. While the question of the voluntariness of the appellant’s confession has not reliably been determined, the point is inextricably interwoven with the question of waiver. For if any part of the appellant’s determination not to appeal was based upon the fear that his wife, though not involved, would be drawn into the second trial as a co-defendant—a circumstance which the appellant contends so completely destroyed his ability to maintain his constitutional right against self-incrimination, when presented with the proposition by Detective Hannon that if the appellant did not confess his wife would be retained in custody on the first degree murder warrant— a voluntary waiver by the appellant of his right to a review of constitutional errors must be ruled out in this postconviction proceeding. Under all of the facts and circumstances presented by the record in the instant case exceptional circumstances are shown to exist which meet the requirement of Rule No. 121 (c) (3), and upon review of the constitutional issues presented in this proceeding we hold the appellant is entitled to relief. We now turn to a consideration of the disposition of this case. The provisions of K. S. A. 60-1507 specifically authorize the appellate court to grant the appellant a new trial, upon finding that the judgment in a criminal case is open to collateral attack or that, there has been a denial or infringement of constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. The disposition of the case, therefore, in accordance with the opinion and directions in State v. Milow, supra, is indicated. At this point the appellant has not yet had an adequate evidentiary hearing productive of reliable results, to which he is constitutionally entitled, concerning the voluntariness of his confession. Accordingly, the case is remanded to the sentencing court with directions to proceed in accordance with the decision in State v. Milow, supra.

The opinion of the court was delivered by Fontron, J.: The defendant was charged with second degree burglary and larceny. On January 25, 1968, he appeared before the district court of Sedgwick County, Kansas, with retained counsel, and entered a plea of guilty to both charges. He was thereupon sentenced to the Kansas State Industrial Reformatory for terms of five to ten years for burglary and one to five years on larceny, the sentences to run concurrently. This appeal followed. On appeal the defendant contends the trial court erred in the following particulars: (1) Failing to ascertain adequately whether his plea was entered voluntarily and with understanding of its consequences; (2) failing to ascertain whether there was a factual basis for his plea of guilty; (3) accepting the plea and imposing sentence thereon when the crime was the subject of a controlling federal statute. We shall consider the first two contentions together pausing first to observe, parenthetically, that Reid does not argue that his guilty plea was entered involuntarily or induced by improper means. The record reflects that the following proceedings were had at the time of arraignment, plea and sentence: “The Court: Case No. CR 4765, The State of Kansas vs. Eulysess M. Reid, R-e-i-d. “The Defendant: (Standing before the Court.) “The Court: Is that your correct name? “The Defendant: Yes. “The Court: And Mr. Watson is your attorney? “The Defendant: Yes. “The Court: You waive arraignment? “Mr. Watson: We waive arraignment and waive a jury trial, Your Honor. “The Court: How does your client desire to plead? “Mr. Watson: My client desires to plead guilty at this time, Your Honor. “The Court: Mr. Reid, you are charged with, on the 28th day of December of last year, entering in the nighttime a boxcar of the Santa Fe Railway located up at approximately 3333 North Mead here in the City of Wichita and stealing sugar from the car. “How do you plead, guilty or not guilty? “The Defendant: Guilty. “The Court: Pleading guilty because you are guilty? “The Defendant: Yes. “The Court: In other words, you did actually break into the car and in the night time take the sugar? “The Defendant: Yes. “The Court: How old are. you? “The Defendant: Twenty-two. “The Court: Twenty-two? “The Defendant: Yes. “The Court: Do you know of any legal reason why the Court should not pronounce sentence at this time? “Mr. Watson: There is none, Your Honor. “The Court: It is the sentence of this Court that you be taken from this courtroom to the Sedgwick County jail, there to be held by the Sheriff until such time as he can transport you to the Kansas Industrial Reformatory at Hutchinson, there to serve not less than five (5) nor more than ten (10) years on the burglary and not less than one (1) nor more than five (5) years on the larceny, the two sentences to run concurrently. “Mr. Watson: If it please the Court, could we cause the sentence imposed to run with the possible parole revocation and — “The Court: From where? “Mr. Watson: —and perhaps the Court should sentence him to Lansing. “He doesn’t want to go to Lansing. “The Court: I will sentence him to Hutchinson and let it run concurrently with any parole revocation he may have. “Is this an institutional parole? “Mr. Watson: Institutional parole. “The Court: From Hutchinson. “The Defendant: Sir, what happened, I was sixteen when I got this charge, and I went to Hutchinson, and consequently I got—there was a mixup, too—I was sentenced to Lansing. Then they sent me to Hutchinson. And I got to Hutchinson and then they sent me to Lansing. I used to be the youngest inmate at Lansing. I don’t want to go through that again. I would like to go to Hutchinson if possible. “The Court: I am going to send you to Hutchinson. If the Board of Administration decides to transfer you to Lansing, I can’t help that. “Mr Watson: For the record, I would like it to be put on the record you were aware of the fact that I was not going to make an application for parole on this sentence and plea, is that correct? “The Defendant: Yes.” Although the dialogue between the court on one hand, and the accused and his counsel on the other, was not as extended as some we have examined, and may be more cursory than we might commend, still we cannot say the brevity of the proceedings is so extreme as to impugn the validity of the defendant’s plea of guilt. There are a number of reasons which compel this conclusion. It is obvious that Mr. Reid was thoroughly advised as to the offenses with which he was charged and, when queried in detail about them, admitted the crimes. The court had every reason to believe that the defendant’s personal plea of guilty was entered because he was, in fact, guilty. In other words there was a factual basis for the court’s acceptance of the defendant’s plea of guilty. In this respect the circumstances are quite similar to those found in Sharp v. State, 203 Kan. 937, 457 P. 2d 14; Mathues v. State, 204 Kan. 204, 460 P. 2d 545: and Griffin v. State, 204 Kan. 340, 461 P. 2d 550. While it is true the record reveals no advice by the court as to the effect and meaning of a guilty plea, or as to the defendant’s right to trial by jury, the defendant was accompanied throughout the arraignment and sentencing procedures by his retained counsel. It is fair to presume that counsel, whose competency is not questioned, had adequately informed the defendant as to his legal rights and of the effect and consequences of a guilty plea. (Toland v. State, 200 Kan. 184, 186, 434 P. 2d 814.) It is significant, in this connection, that defense counsel expressly waived a jury trial on behalf of and without objection by his client. Moreover, at the time of allocution, when the court inquired if there was any legal reason why sentence should not be pronounced, defendant’s counsel replied, with no remonstrance from his client, “There is none, Your Honor.” In Walsh v. State, 195 Kan. 527, 407 P. 2d 516, this court spoke in words we deem appropriate here: “The allocution affords an accused the chance to present before sentence, either in person or through his counsel, whatever grounds he claims may exist for impugning the integrity of the proceedings. No inference can be drawn from the record in this case that either the accused or his counsel, whose competency is not here in question, ever proposed any reason whatsoever why sen tence should not be pronounced in accordance with the plaintiff’s plea of guilty.” (p. 529.) The defendant was not exactly a novice in the area of criminal procedure when he appeared in court for arraignment. On at least one prior occasion he had pleaded guilty to identical charges and had been sentenced to the reformatory. Thus he must have been fully aware, from bitter personal experience, of the meaning of his guilty plea and of the consequences which would flow therefrom. We do not suggest that the procedure followed in this case be adopted as a model for future use. Nonetheless we consider it sufficient, under the circumstances shown here, to guard against substantial prejudice to the defendant’s legal rights. The final point raised by the defendant, i. e., that error was committed in accepting his plea because of a controlling federal statute, is strictly without merit. We assume the statute to which the defendant refers is 18 U. S. C. § 659 which makes it a federal offense to steal from any railroad car any goods or chattels which are part of or which constitute an interstate shipment of freight, express or other property. This statute, however, contains the following specific provision: “A judgment of conviction or acquittal on the merits under the laws of any State shall be a bar to any prosecution under this section for the same act or acts. Nothing contained in this section shall be construed as indicating an intent on the part of Congress to occupy the field in which provisions of this section operate to the exclusion of State laws on the same subject matter, nor shall any provision of this section be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this section or any provision thereof.” We find no errors to the prejudice of the defendant’s substantial rights and the judgment of the trial court is affirmed.

The opinion of the court was delivered by Schroeder, J.: This is an action by the plaintiff to recover permanent and total disability benefits of $6,500 under a group insurance policy issued by the Aetna Life Insurance Company (defendant-appellee). The case was submitted to a jury which returned a verdict in favor of the defendant Aetna. Appeal has been duly perfected by the plaintiff. The only issue presented is whether the trial court applied the proper rule of law to determine if the appellant was totally disabled within the meaning of the group insurance policy issued by Aetna. Willis D. Woods (plaintiff-appellant) is forty-two years of age with a formal education consisting of the first seven grades and two weeks of the eighth grade. In 1961 he received a certificate equivalent to a high school diploma. Prior to military service his occupation consisted of hauling freight, service station work, and a few months as a welder’s tacker. In 1945 he entered the Army and worked as a supply clerk. He was released from active duty with the Army in 1951 as a Corporal, but joined the Army Reserve in 1954 and attained the rank of Staff Sergeant. In 1951 the appellant went to work for the Boeing Company at Wichita, Kansas. He worked regularly for Boeing until August, 1963, except for two occasions when he was hospitalized for approximately one month on each occasion for a back condition diagnosed as rheumatoid spondylitis, also known as Marie-Striimpell’s arthritis. X-ray treatments arrested the disease, but it was necessary for him to return to the hospital for treatments. His last date of employment with Boeing was August 13, 1963, after which he was hospitalized from August 23, 1963, to October 11, 1963. Upon release Boeing placed him on the inactive payroll because of his lifting restrictions of not over thirty to thirty-five pounds, which were later reduced to lifting not more than ten to fifteen pounds. At all times material hereto the appellant was subject to the provisions of a disability insurance policy issued by Aetna providing for a lump sum benefit of $6,500 in the event of total disability. Pursuant to the appellant’s application for workmen’s compensation benefits, he was examined by an orthopedic surgeon, Dr. Robert A. Rawcliffe, Jr., in February, 1964, who stated in an opinion that he then thought claimant was disabled from doing any but light desk-type work. His disability was then rated about thirty-five to forty percent, and he was awarded maximum compensation payments of $42 weekly payable for 415 weeks. Dr. Rawcliffe again examined the appellant as of June 24, 1967, and stated: “I took a history from plaintiff during my 1967 examination of him during which he told me he had gotten worse since my 1964 examination. During my 1967 examination, however, I found no evidence of muscle atrophy, but that plaintiff did not exert normal strength during the test for muscle power in the upper extremities. Since he had no muscle atrophy, there is no reason he could not exert normal strength unless he did not want to do it. Plaintiff also registered inconsistencies in leg raising tests designed to ascertain nerve irritation, when the results of the different tests should have been consistent. Plaintiff also claimed to have a sensory loss in the lower extremities, but I could find no medical basis for it. Incidentally, arthritis does not usually produce any change in sensation in the extremities in any event. These findings during my examination suggested to me a deliberate attempt on the part of plaintiff to exaggerate his disability. “It is my medical conclusion that 'there are a number of Findings on the physical examination which suggest a deliberate attempt on the part of the patient to exaggerate his disability. The finding of decrease in sensation cannot be explained on the basis of rheumatoid arthritis. The patient very obviously does not attempt to exert normal muscle power when I am testing for muscle strength, and this suggests a deliberate attempt to exaggerate his disability. On the basis of these findings, it is my impression that this patient very definitely does not have total disability. In other words, it is my opinion that this person is not totally and permanently disabled according to the definition given as being “unable to engage in employment or occupation for compensation or profit.” I do believe that the patient has some partial disability, but I am not convinced that this would keep him from engaging in any type of occupation. Furthermore, there is some evidence that the patient deliberately exaggerates his symptoms; and to this degree, at least, he is deliberately malingering.’ . . .” At the time of trial Dr. Rawcliffe was of the opinion the appellant could do heavier work than he had concluded in 1964. On July 6, 1964, the appellant was examined in behalf of the Social Security Administration by an orthopedic surgeon, Dr. Eugene E. Kaufman of Wichita, Kansas, for the purpose of evaluating him for social security benefits. Pursuant to the findings and examinations of Dr. Kaufman the claimant was granted compensation for himself, his wife and four children totaling $296.40 monthly. Subsequent to the appellant’s release from the hospital on October 11, 1963, Boeing on at least two occasions requested a status report from the appellant in order to maintain him on Boeing’s inactive payroll. Status reports were requested in a letter dated July 6, 1965, indicating that the appellant had not contacted Boeing since April, 1964, and in another letter dated October 10, 1966, indicating that Boeing had not heard from him since July, 1965. In addition to examinations by Dr. Kaufman on July 6, 1964, and June 17, 1965, and the examinations of Dr. Rawcliffe, the appellant was examined by Dr. Gerald E. Cronk of Tulsa, Oklahoma, Dr. Charles Phillip Rhodes and Dr. Jack E. Moseley, both of Wichita, Kansas. All of the medical examiners concurred with the diagnosis of Marie-Striimpell’s arthritis of the sacroiliac, also known as rheumatoid spondylitis; that the appellant could not do the heavy type of lifting work he was previously doing at his job with the Boeing Company, but that he could do some type of light work and obtain gainful employment. The record discloses Dr. Moseley’s notes which show that on March 14, 1966, the appellant told the doctor he was working twelve to fourteen hours a day that Boeing did not know about. Dr. Kaufman, who examined the appellant in 1964 and 1965, stated the appellant could lift more than fifteen pounds to which Boeing restricted him, and there was no reason why he could not do light work. Dr. Charles Phillip Rhodes, a specialist in internal medicine, who examined the appellant in 1967, testified the appellant’s condition of rheumatoid spondylitis was arrested or inactive, and that the appellant was certainly not totally disabled for many types of work. He also concluded the appellant was “probably malingering.” Dr. Cronk, who examined the appellant in 1964, stated the appellant certainly could be gainfully employed at some type of work and would make a good candidate for vocational rehabilitation. A doctor’s certification dated December 10, 1963, from L. G. Schulze of the Veterans Administration discloses the appellant was released by the doctor “as able to work” on October 14, 1963. The appellant is currently receiving more from workmen’s compensation and social security than he has ever earned at employment in his lifetime, according to his own testimony. He presently owns five lots in Ketchum, Oklahoma, and raises thirty-five to forty rabbits as a hobby. He has averaged a dozen or more hunting trips during the past three hunting seasons. He fishes and is able to start the thirty horsepower, manual start motor, on his sixteen-foot boat. He is able to work in his garden, mow his yard, and do repair jobs on his house. He admits there are all kinds of jobs available that he has not even explored, investigated or attempted to undertake. He has made no inquiry about becoming a welder, for which he has had some training, a bailiff, a salesman servicing racks in drug stores, or about undertaking similar jobs. He openly admits he could probably do such jobs as being a night watchman where he could sit and walk around at his leisure. The appellant’s real complaint is that he could not return to the identical job he had at Boeing, and he will not work for less money. After being fully instructed the case was submitted to the jury, and it returned a verdict for the Aetna Life Insurance Company. The issue to be determined on this appeal is focused in the following instruction submitted to the jury: “You are instructed that the Boeing Company group policy with defendant provides a lump sum benefit of $6,500.00 in the event an employee, such as Willis Woods, proves that he has become: “ ‘. . . totally disabled by illness or injury and that the disability has existed continuously for a period of six months or more and will presumably prevent the employee, for life, from engaging in employment or occupation for compensation or profit.’ “You are instructed that a total disability is one which results from an illness or injury and which makes it impossible for a person to follow continuously a substantially gainful occupation at any kind of work for which he is competent or qualified, physically and mentally, or for which he could qualify himself by a reasonable amount of study and training. Total disability, within the meaning of insurance policies, does not necessarily mean utter helplessness, nor inability to perform any task, or even in some cases, usual tasks for a limited period. An insured need not be absolutely helpless before he is entitled to the benefits for total and continuous disability. It is only necessary that the disability render him unable to perform the substantial and material acts of his business or occupation in the usual and customary way. The word ‘continuously’ means with reasonable regularity. It does not preclude periods of disability which are ordinarily incident to activities of persons in generally sound health, for nearly all persons are at times temporarily incapacitated by injuries, or poor health, from carrying on an occupation. A disability is permanent when it is of such a nature that it is reasonably certain it will continue throughout a person’s lifetime.” (Emphasis added.) The provision of the insurance policy in question is correctly set forth in the above instruction. It does not limit the meaning of total disability merely to the inability of the insured to perform the work of “his” former occupation, nor does it mean he must receive the same monetary benefits. This was recognized by the trial court which, after stating the provision of the policy in question, instructed as indicated in the first italicized portion of the above instruction. It is this portion of the instruction to which the appellant objected at the time of trial, and for which he now contends the trial court erred. The appellant relies upon Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219, contending the meaning of total disability was settled therein once and for all. The language in the Wolf case upon which the appellant relies is as follows: “Total disability, within the meaning of insurance policies, does not necessarily mean utter helplessness, nor inability to perform any task, or even in some cases, usual tasks for a limited period. It has been said, to hold otherwise would be to penalize every effort of the insured person to rehabilitate himself. (Hodgson v. Mutual Benefit H. & A. Ass’n, 153 Kan. 511, 112 P. 2d 121.)” (p. 706.) The appellant contends the court then broadened its interpretation of total disability in the Wolf decision by the following statement: “. . . An insured need not be absolutely helpless before he is entitled to the benefits for total and continuous disability. It is only necessary that the disability render him unable to perform the substantial and material acts of his business or occupation in the usual and customary way. (Pearson v. Prudential Ins. Co., supra [214 La. 220, 36 So. 2d 763].)” (p. 710.) (Emphasis added.) The appellant contends the trial court in the first italicized portion of the instruction quoted interpreted the words “total disability,” as defined in Berry v. United States, 312 U. S. 450, 85 L. Ed. 945, 61 S. Ct. 637. The Berry case was cited in Hodgson v. Mutual Benefit H. & A. Ass’n, 153 Kan. 511, 112 P. 2d 121, with approval, and the definition of “total disability” set forth in the Berry case was quoted with approval in Wolf v. Mutual Benefit Health & Accident Association, supra, at page 707. The appellant argues the Wolf case merely acknowledged the foregoing definition of total and permanent disability in Berry, but refused to follow the broad term “any kind of work,” and required that the disability render the workman unable to perform “his business or occupation.” He contends the requirement provided by the Hodgson and Berry cases of “any kind of work” has now been modified by the Wolf case to “his business or occupation.” The appellant has misconstrued the decision in Wolf by taking the expression in Wolf upon which he relies out of context. Contrary to the situation in the case at bar, there was nothing whatever in the record in Wolf to disclose whether the insured could work at any other occupations which would not require him to be on his feet for long periods of time. Without such evidence before it the court, in determining whether the insured was totally disabled, had only one occupation to refer to—the insured’s occupation at the time the alleged disability occurred. On the facts in Wolf it was natural for the court to refer to “his” occupation, without intending to limit the test for total disability to the ability to perform “his” former business or occupation. This interpretation of the Wolf opinion is apparent when consideration is given to syllabus ¶ 5, where the court defines “total dis ability” as the inability to perform “a” business or occupation, rather than the ability to perform “his” business or occupation. The most significant aspect of the Wolf holding is its reliance upon the definition of “total disability” contained in Berry v. United States, supra. In Berry the United States Supreme Court approved the following instruction which this court quoted in Wolf: “ ‘ “A total disability is any physical or nervous injury which makes it impossible for a person to follow continuously a substantially gainful occupation at any land of work for which he was competent or qualified, physically and mentally, or for which he could qualify himself by a reasonable amount of study and training. . . (p. 707.) (Emphasis added.) The holding of this court in the Wolf case is consistent with its prior holdings in Maresh v. Peoria Life Ins. Co., 133 Kan. 191, 299 Pac. 934; and Fricke v. Mut. Life Ins. Co., 152 Kan. 525, 106 P. 2d 677. The facts in the Fricke case are similar to those in the instant case. Actually the instruction given by the trial court in the instant case, as heretofore quoted, is more advantageous to the appellant than it should have been. The second italicized portion quoted makes reference to “his” business or occupation, thus making it inconsistent with the rest of the instruction. The appellee objected to this portion of the instruction in the trial court, but it was given over objection. We hold the instruction given by the trial court did not prejudice the appellant in the trial of this action. There was abundant evidence to support the jury’s finding that the appellant was not totally disabled within the meaning of the test for total disability consistently applied by this court in such decisions as Fricke and Wolf—that the appellant was not disabled to such an extent that he was prevented from performing any work for compensation, gain or profit. Upon the record presented the jury may well have believed the appellant was not totally disabled, but was in fact a malingerer. Under the circumstances it would have been error for the trial court to take the issue from the jury and direct a verdict for the appellant. (Baker v. Western Casualty & Surety Co., 196 Kan. 345, 411 P. 2d 711; McKinney v. Cochran, 197 Kan. 524, 419 P. 2d 931; and Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P. 2d 591.) The judgment of the lower court is affirmed. Fatzer, J., dissenting.

The opinion of the court was delivered by Fatzer, J.: This was an action to recover monthly benefits under a health and accident disability income insurance policy. The case was here previously and the facts and issues giving rise to the present appeal are stated in the court’s opinion in Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P. 2d 798, and will not be repeated here. The opinion is incorporated herein by reference. The plaintiff claimed total disability from accidental injury to his back while lifting a 50-pound sack of feed on September 8, 1960, and that he had not worked since September 14, 1960. He applied for his health and accident disability insurance on July 17, 1960. After keeping the completed application form overnight, on July 18, 1960, the plaintiff’s brother, Frank Schneider, delivered the signed application form to the defendant’s agent Robert H. Bridewell. The policy was issued and delivered to the plaintiff by Bridewell on September 13, 1960, and a copy of the application was attached. The plaintiff made application for monthly benefits on October 24, 1960, based on the injury to his back on September 8. The claim was supported by a doctor’s certificate of disability and defendant commenced paying the disability benefits of $400 per month effective as of September, 1960. The defendant ceased the benefit payments August 4,1961, having paid a total of $4,280, and the plaintiff commenced this action to recover benefits for total permanent disability. In discovery proceedings, the defendant discovered several false answers in plaintiff’s application, which are set forth in our previous opinion. The defendant counterclaimed, seeking rescission of the policy. When the false answers were discovered, the plaintiff admitted the answers were false and claimed they were inserted by the defendant’s agent Bridewell, without his knowledge. Bride-well asserted the answers were given by plaintiff and that he wrote them in the application as given by the plaintiff. The plaintiff also asserted his brother who signed the application for the insurance policy, did so without authority. Following reversal of this case, the district court which previously tried the case disqualified, and the Honorable Jay Sullivan was assigned. A pretrial conference was had at which the district court stated the reporter’s transcript of the pretrial conference would serve as the pretrial order. We point out the best practice of pretrial procedure is that a specific order be prepared and approved by counsel and signed by the district court in which the issues are fully stated. However, the statement of the district court at the conclusion of the pretrial conference fingered the issues presented as follows: “The Court: When you speak of defenses you are referring to each question as being an affirmative defense. Their defense is that false answers were given in the application. If truthful answers had been given, the policy would not have been issued. That is one of their defenses. This is your case, based on this contract of insurance, and it provides for many things. I am sure that it provides that the application is a part of the contract along with the various types of disability benefits. The defendant contends that the plaintiff was not disabled; and that, if he was disabled, it was the result of sickness rather than accident and also that if he was disabled, that it was a partial disability. Insofar as the sickness part is concerned, it is confined to just one thing here, and that is as to the deterioration of the disc. It was the disc or was around the disc or, in any event, something was caused by the aging process rather than from a blow or twist or some type of trauma. That is the only part of sickness that enters into this picture. The court is going to submit general verdicts and also special verdicts. I am going to submit general verdict. We are going to either decide it for the plaintiff or for the defendant. Then, we will have a special verdict; but, I am going to submit now, under this policy, the terms of this policy as to whether or not this person is totally disabled or whether or not he was partially disabled, or whether or not it was a result of accident or a result of this sickness. I don’t think that the defendant has waived any defenses that he has on this policy and the matter in which the evidence has been introduced here. It is complicated enough. I am going to try to simplify it if I can. I am not satisfied with the definition of total disability, so I will have to do a little research on it before I can determine in my own mind how to draw that instruction. I don’t believe there is much question as to where the proof lies. The burden of proof is with the plaintiff to prove first, that he was disabled; and, secondly, that this was the result of a twist or fall that occurred on September 8, 1960, that disabled him. Right here is something I would like to inquire about. We tried this case, as I understand, from the time of September 8, 1960, to the time of the alleged accident on November 15, 1965, and that there was no question but that is on which it is to be submitted to the jury, is there? “Mr. Siefkin: That is correct. “The Court: Okay. The defendant has the burden of proving first, that the plaintiff answered the questions asked by the agent and those answers were correctly written into the application and the plaintiff’s brother, who had authority, signed his name to the application. “Mr. Siefkin: All right. “The Court: That is about it, Gentlemen.” At the conclusion of the evidence of both parties, the district court instructed the jury in accordance with the issues as disclosed by the evidence and pretrial order so as to enable it to make answers to six written interrogatories and to render a general verdict. The jury returned its verdict and answered the special interrogatories as follows: “VERDICT “We, the jury empaneled and sworn in the above entitled cause, do upon our oath find Plaintiff is entitled to recover from defendant in the amounts as provided in the insurance policy for partial disability.” “The Court’s Interrogatories “1. Do you find that the plaintiff was totally disabled from performing the work of his usual occupation between August 4, 1961 and November 15, 1965 as a result of a twist or fall while lifting a bag of seed or feed? “Answer: No. “2. If your answer to the above question is no’, do you find that the plaintiff was partially disabled from performing the work of his usual occupation between August 4, 1961 and November 15, 1965 as a result of a twist or fall while lifting a bag of seed or feed? “Answer: Yes. “3. If your answer to Question No. 1 or No. 2 is ‘No’, do you find that the plaintiff was totally or partially disabled from performing the work of his usual occupation between August 4, 1961 and November 15, 1965 as a result of degeneration of an intervertebral disc? “Answer: No. “4. Do you find that the plaintiff gave defendant’s agent false answers to questions contained in the application for the insurance policy? “Answer: Yes. “5. If your answer to Question No. 4 is ‘Yes’, did such false answers materially affect the risk assumed by defendant in issuing the policy? “Answer: No. “6. Did plaintiff’s brother, Frank Schneider, have authority to sign his brother’s name to the application for insurance? “Answer: Yes.” The general verdict and the answers being harmonious, the district court directed the entry of the appropriate judgment upon the verdict and answers. (K. S. A. 60-249 [b].) Thereafter, the plaintiff filed an amended motion for a new trial and a motion to set aside the verdict and for judgment notwithstanding the verdict. The defendant filed a motion for judgment notwithstanding the verdict, contending judgment should be rendered rescinding plaintiff’s insurance policy. Counsel presented arguments and authorities on the respective issues, and upon consideration, the district court overruled all motions. The plaintiff has appealed from the judgment, and from the order of the district court refusing to set aside the verdict and answers to special interrogatories, and for a new trial. The defendant has cross-appealed from the order overruling its motion for judgment for rescission based upon plaintiff’s fraud, and the entry of judgment against it for benefits applicable to partial disability. Most of the plaintiff’s contentions here advanced were decided adversely to him in the previous appeal. It may be generally said, the instructions given by the district court complied with the issues as delineated in our previous opinion. There was ample evidence to support the jury’s finding on special interrogatory No. 4 that the plaintiff gave the defendant’s agent false answers to questions contained in the application for the insurance policy. Likewise, the defendant’s denial of total disability from accidental injury fairly encompasses the subsidiary question of partial disability. The plaintiff’s only objection to instruction No. 9, submitting partial disability to- the jury, was on the ground there was no evidence to support such an instruction. Without reviewing all the evidence, it is sufficient to say our examination of the record indicates there was some evidence the plaintiff was able to continue to work in an administrative or managerial capacity in keeping with his background as part owner of a feed and grain business. Movies showing the plaintiff s activities were admitted in evidence and the jury was advised of his capabilities. There was other medical testimony the plaintiff could do supervisory and light work, and that he was only partially disabled. Moreover, the issue of partial disability was noted in our former opinion as an issue in the case (p. 401), and there was no error in submitting the issue to the jury. The plaintiff claims his brother was not authorized and had no authority to sign the application for the insurance policy on his behalf. A considerable portion of his brief is devoted to the question. A short answer to the claim is that it is refuted in the plaintiff’s pretrial deposition quoted in Schneider, supra, pages 383, 384. The plaintiff urges, as he did in the first appeal, the district court erred in not requiring responses to certain requests for admission filed by him prior to the first appeal, and of the refusal of the district court to permit him to read to the jury portions of pleadings and answers to interrogatories for the purported purpose of establishing that the defendant admitted liability. With respect to the first matter, it is obviously one within the discretion of the district court. (Wood v. Gautier, 201 Kan. 74, 339 P. 2d 73.) The record in this case is voluminous, and it cannot be contended the plaintiff was not given every reasonable opportunity to explore and establish all relevant facts. The defendant made its position clear on all issues involved in the requests, in its pleadings, answers to interrogatories, various pretrial proceedings, and in documents, as well as in the evidence presented during the trials, and we cannot say the plaintiff’s rights were substantially prejudiced as to- constitute reversible error. Likewise, and with respect to the refusal to permit counsel to read from pleadings and answers to interrogatories to the jury to establish that defendant admitted Lability, it may simply be said the defendant, in its answer, denied the plaintiff was totally disabled; denied he was totally disabled from accidental cause, and denied liability. The claim is made the district court unduly limited the plaintiff’s cross-examination of three witnesses for the defendant. The point is not well taken. In the first place, the extent of cross-examination is a matter within the discretion of the district court, but the record shows extreme liberality and fairness of the court in this respect. In addition, we think there was no error in refusing plaintiff’s request to supplement his petition asking for installment payments to the date judgment would be rendered. The motion is now moot because the jury found partial disability as a result of the plaintiff’s accidental injury which benefits expire six months after August 4, 1961. Further, the time involved was limited to the period between August 4, 1961, and November 15, 1965. That was the period for which all medical information had been discovered and clarified, and it would have necessitated a delay in the trial to inquire into the subsequent period. Moreover, the defendant agreed that if the jury brought in a verdict of total disability as a result of the plaintiff’s accident on September 8, 1960, the court should order benefits paid up to the date the verdict was rendered. No error was committed. The plaintiff also complains concerning the court’s instruction with respect to total disability. It is unnecessary to set forth the instruction, but consideration of all the facts and circumstances disclosed in the record, which we have carefully read, convinces us the instruction, if faulty, did not substantially prejudice the plaintiff’s rights in any respect. The record indicates there was one factual issue delineated in our former opinion which was not submitted to the jury by special interrogatory. That issue was whether there was sufficient evidence of knowledge by the defendant of the falsities of the plaintiff’s answers in the application to serve as a basis for application of waiver. In our former opinion we pointed out there was some evidence of knowledge on the part of the defendant’s underwriter, Borgeson, whose authority was unquestioned, (pp. 398, 399.) In his deposition, Borgeson admitted the company files contained a previous application of plaintiff made in 1957 and an inspection report by an insurance service bureau which reflected discrepancies from statements made in the present application. However, the plaintiff did not request that the district court submit the issue to the jury, nor did he submit an interrogatory in that respect. In Bott v. Wendler, 203 Kan. 212, 453 P. 2d 100, it was held: “Where a district court requires a special verdict and neglects to include an issue of fact raised by the pleadings, the pretrial order, and the evidence, a party waives his right to a jury trial on the issue unless he demands its submission before the jury retires. (K. S. A. 60-249 [a].) The rule applies where a party has requested submission of a particular issue, and he will be held to have waived his right to trial by jury as to it unless he objects to the failure to submit it before the jury retires.” (Syl. ¶ 4.) We turn to the defendant’s cross-appeal, that the district court erred in not rendering judgment rescinding the plaintiff’s insurance policy. The contention revolves around the district court’s submission of special interrogatory No. 4 to the jury which found the plaintiff gave defendant false answers to questions contained in the application. The defendant contends the district court should not have submitted the question of materiality of the false answers to the jury in special interrogatory No. 5 in view of our former holding the answers were material as a matter of law. At the trial, the defendant called its witness Borgeson, and offered extensive evidence as to the materiality of the plaintiff’s answers. We think the defendant made the issue one of fact, and hold the district court did not err in submitting special interrogatory No. 5. This lawsuit has involved protracted litigation. Our previous opinion delineated the issues to be submitted to the trier of the facts. The jury heard the evidence of both parties and made its answers on those issues. While error may have occurred in the trial below, we think no substantial prejudice resulted to the rights of either party. As has been often said, the law does not guarantee to every litigant a “perfect” trial; it does guarantee him a fair trial. K. S. A. 60-2105 provides: “The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it, the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.” See, also, K. S. A. 60-261. The verdict and the answers have been approved by the district court and the plaintiff and the defendant have failed to affirmatively establish irregularities which prejudicially affected the substantial rights of either party. We are compelled to sustain the judgment entered by the district court under the unequivocal language of the statute above quoted and the many decisions construing it. The judgment is affirmed.

The opinion of the court was delivered by Hatcher, C.: This is an appeal from an order overruling a motion for judgment against a non-answering garnishee because of improper service of the order of garnishment. The facts are not in dispute. The appellants, J. B. Briscoe and his wife, obtained a money judgment against the defendants, Richard Getto and his wife. Richard Getto was an employee of B. J. King-don, an architect with offices on the third floor of the Beacon Building, Wichita, Kansas. In an effort to collect on their judgment, the appellants started garnishment proceedings. The first order of garnishment was issued June 28, 1967, directed to B. J. Kingdon, and he was personally served at his office. A second order of garnishment was issued on January 11, 1968, and Kingdon was again personally served at his office. The third order of garnishment, the one out of which the present controversy arises, was issued by the appellants on April 11, 1968, and was again directed to Kingdon at his address in the Beacon Building. This order of garnishment was served on Kingdon s secretary, D. J. Blasdel, on April 12, 1968, and it was so stipulated. It was also stipulated that Kingdon came to his office after the garnishment order had been served on his secretary April 12, 1968, and at that time was told by his secretary that he had again had garnishment papers relating to the lawsuit. On the same day King-don told Getto of the garnishment papers and in that connection testified as follows: “I called him (Getto) in the office and told him about it and in the past, he had been calling—getting ahold of Mr. Seeber and it had been handled in that manner, and I told him to get ahold of Mr. Seeber and see what the problem was now, and he said all right. He (Getto) left my office, went back into the draft room. And when I left for my appointment, that’s the last—really it just slipped my mind. I didn’t do anything about it.” It was further stipulated that on each of the two previous occasions when the orders of garnishment were served on Kingdon, he withheld money until such time as an order had been obtained from the Court releasing the garnishment and authorizing him to pay the money to Getto and the Clerk of the Court. However, on this occasion Kingdon did not secure an order of the court or file an answer as required by K. S. A. 1967 Supp. 60-718. It is conceded that the secretary, D. J. Blasdel, had never been appointed as process agent for B. J. Kingdon and that Kingdon’s residence was not located at the Beacon Building. On May 16, 1968, appellants filed their motion for judgment against the garnishee, Kingdon, for the amount due and owing on the Getto judgment in the sum of $3,002.82. The motion alleged the failure of the garnishee to respond to the garnishment order of April 12, 1968. Following a hearing the trial court stated in a letter opinion: “It is the judgment of this Court that plaintiffs’ motion for judgment against B. J. Kingdon be denied. “This Court finds that the garnishee in the Order of Garnishment dated April 11, 1968, was B. J. Kingdon, an individual. “The Return on Service of Garnishment shows that the Order of Garnishment was delivered to or served on R. J. Hasdel [D. J. Blasdel], Secretary, on April 12, 1968. “This Court finds that B. J. Kingdon was not served with the Order of Garnishment as provided by law for personal service upon an individual (KSA 60-304 (a)), on April 11, 1968 or April 12, 1968.” The trial court, after stating that appellants relied on K. S. A. 60-204 and quoting the statute, further ruled: “It is this Court’s opinion and finding that B. J. Kingdon was not made aware that an action was pending in a specified Court in which his person, status or property were subject to being affected by the service of the Order of Garnishment on April 12, 1968.” The appellants, on appeal, continue to rely on K. S. A. 60-204 and challenge the trial court’s finding that the garnishee was not made aware of the garnishment proceeding. We might be inclined to agree with appellants’ criticism of the trial court’s finding as to the garnishee’s awareness of the garnishment proceeding. However, the finding is immaterial here. The trial court’s finding that the garnishee “was not served with the order of garnishment as provided by law for personal service upon an individual” disposes of this controversy. Service of process is the statutory method of obtaining jurisdiction over the person of a defendant and the method of service provided by statute must be substantially complied with. In Butler County Comm’rs v. Black, Sivalls & Bryson, Inc., 169 Kan. 225, 227, 217 P. 2d 1070, we stated: “In any action, it is essential that the trial court have jurisdiction not only over the subject matter thereof, but of the parties to the action. Jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by the statute or by voluntary appearance, and this statutory method is exclusive of any other method of service. . . .” The appellants contend: “It is obvious from the wording of the section [K. S. A. 60-204] that the legislature intended and has plainly stated that in any case where there is an irregularity, such as a service of process on an individual at his place of business hv serving his secretary, the service shall be valid if ‘the party served was made aware that an action or proceeding was pending in a specified court in which his person, status or property were subject to being affected.’ ” We cannot agree with appellants’ contention. Before there can be a valid personal service of process there must be a substantial compliance with some method of process provided in K. S. A. 60-301, et seq. It is only after substantial compliance that irregularities and omissions are cured by awareness of a pending proceeding. K. S. A. 60-204, insofar as material here, provides: “. . . In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his person, status or property were subject to being affected.” This is a case of first impression and we find no precedent to guide us. However, as we read the statute it seems clear that new methods of service were not anticipated. There must first be substantial compliance with some statutory method of service. Irregularities or omissions will then be ignored if the court finds that the party to be served was made aware that an action or proceeding was pending, etc. The appellants were attempting personal service under K. S. A. 1967 Supp. 60-304 (a). In order to effect service of process directed to a natural person, the summons must be personally served on such person, or left at his dwelling house or usual place of abode with some person of suitable age and discretion, or served upon an agent authorized by appointment or law, or upon special order of the trial court by leaving a copy of the summons at his dwelling house or usual place of abode. There is no provision for service of summons by leaving a copy with the secretary of the person to be served or by leaving a copy at the place of business of the person to be served. Such new method of service cannot be originated by K. S. A. 60-204. There was no method of statutory service that was substantially complied with. The provision for ignoring irregularities or omissions, if the trial court finds that the party was aware that an action or proceeding was pending in a specified court in which his person, status or property was subject to being affected, was not brought into operation. The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Kaul, J.: Plaintiff-appellee, Peoples State Bank, instituted this action, originally in replevin, to recover possession from defendants-appellants of an oil rig and equipment in which plaintiff claimed a special ownership by virtue of a chattel mortgage, executed by Joe K. Branum, d/b/a Terrel Producing and Drilling Company. When the action was filed plaintiff gave a bond for possession; defendant Mountain Iron & Supply Company, who had taken possession, gave a redelivery bond and thereafter caused the property to be sold. The property having been sold, plaintiff filed an amended petition seeking recovery of the amount claimed under the notes and mortgages and interest, costs and attorney fees. Defendants, Mountain Iron & Supply Company and Intercontinental Leasing, Inc., filed separate answers alleging rights of possession by virtue of chattel mortgages held by each of them. As thus framed, after a pretrial conference, the action proceeded to trial without a jury. Defendants have appealed from an adverse judgment. For convenience, the appelee will be referred to as plaintiff or bank, the appellants as Mountain and Intercontinental, or collectively as defendants, and Joe K. Branum, d/b/a Terrel Producing and Drilling Company, as Branum. The overall issue is whether the chattel mortgages of defendants, each of which was acknowledged at the time of execution to be junior to a chattel mortgage held by the bank, were raised to a status of priority by the conduct of the bank in its transactions with Joe and Mary Branum. On September 13, 1961, Branum purchased from the bank an oil rig and equipment which will be referred to as Rig No. 1. The purchase price was $25,000. Branum made a down payment of $5,000 and executed a note and mortgage on the rig for the balance. Payments were made on the old note and a renewal note was executed which included additional advances by the bank to Branum for the purchase of equipment. Further payments were made on the renewal note. On November 20, 1962, a renewal note and mortgage were executed in the amount of $29,000. The increase was for the purchase by Branum of two rebuilt GM diesel engines and other equipment to be placed on Rig No. 1. The trial court found the note was reduced by payments and renewed for increases in several transactions. On the date of trial, October 31, 1966, there was a balance due of $14,866.50, which sum included interest to date. Following his purchase of Rig No. 1 from the bank, Branum bought two other rigs from defendants which are referred to as Rigs No. 2 and No. 3. Apparently, defendants retained a security interest in rigs No. 2 and No. 3 as collateral to secure the balance of the purchase price. On June 8, 1962, Branum executed a note in favor of Intercontinental and a mortgage covering a Model U-10 drawworks, Serial No. 105, and a schedule of equipment. The mortgage provided that it was junior and subordinate to the first mortgage of the bank. On August 31, 1964, Branum executed a promissory note to Mountain and a mortgage covering a Model U-10 Unit, Serial No. 105, with schedule attached. This mortgage also provided that it was subject and junior to the now existing mortgage held by the bank. In 1965 Branum became so involved in financial difficulties that he was unable to carry on the drilling contracts under which he was obligated. An arrangement was arrived at between Branum, his wife Mary, and the bank to the effect that the rig was to be used by Branum’s wife Mary, d/b/a Merry “A” Drilling, Inc., so that Mary could complete the contracts without the interference of her husband’s creditors. Actual possession never left the control of Joe Branum and he continued to operate the rig. The trial court found the arrangement was carried out as follows: On March 10, 1965, Mary Branum, d/b/a Merry “A” Drilling, Inc., executed a note and mortgage on Rig No. 1 and equipment in favor of the bank in the amount of $19,275.00, the same amount as the balance due on Branum’s note to the bank at the time. On the same date, Branum executed a bill of sale with the grantee’s name omitted to be held by the bank until further payment of the outstanding indebtedness was made by either Merry “A” Drilling, Inc., or Terrel Producing and Drilling Company (Branum). If payment was not made by either of them, then tire bill of sale was to be the written instrument conveying title to the rig to any purchaser that the bank might find. The notes and mortgages in favor of the bank, previously executed by Branum, were not cancelled, released or delivered to Branum but remained in the bank’s possession. The word “collateral” was written on the front of all of the notes involved. On the same date, March 10, 1965, the indebtedness, evidenced by notes and mortgages, was transferred by the bank from Joe’s liability ledger to Mary’s. The trial court found this was accom plished by showing on Joe’s individual liability ledger payment of a note in the amount of $19,275 and by an entry of like amount on Mary’s individual ledger with a notation “Due As Spec. Chat. Mtg.” It appears that later in 1965 the financial affairs of Joe Branum deteriorated and defendants took possession first of Rigs No. 2 and No. 3 and shortly thereafter of Rig No. 1. When the bank learned defendants had taken possession of Rig No. 1 á demand was made upon defendants for possession on August 3, 1963. The bank’s demand was refused by defendants and this lawsuit followed. Pretrial proceedings, consisting of discovery depositions and several conferences before the court, were concluded and finalized by a pretrial order, entered on September 9, 1966, in which agreed facts were set out and the issues of fact and law were carefully identified and listed. Following the trial, the court filed comprehensive findings of fact and conclusions of law. After a motion for a new trial was heard, the court filed a further memorandum decision amending one finding of fact but otherwise overruling defendants’ motion for a new trial. The defendants do not challenge the trial court’s findings of fact but direct their appeal at the conclusions of law. On appeal defendants raise four points, three of which go to the central issue whether the original mortgages executed by Joe Branum, upon which the bank based its claim, were waived, discharged or paid prior to the filing of this action. The three points referred to will be collectively discussed and resolved. Defendants first contend the petition and amended petition failed to state a claim for relief because, they assert, the bank sued on the wrong mortgage. Defendants argue the bank’s claim, if any, arises under the Mary A. Branum mortgage, rather than under the mortgage executed by Joe, which the defendants claim was discharged. This question was resolved by the trial court’s determination that Joe’s mortgage was not discharged. Under the facts as found, we believe the trial court’s ruling to be correct. The trial court made twenty-eight findings of fact, which we believe resolved all factual questions relative to the issues involved. The court found that all moneys loaned by the bank to Branum were for the rig, equipment or repairs and replacements; that the Branums knew at all times the notes and mortgages of Joe Branum were security for the payment of the obligation of Mary A. Branum, d/b/a Merry “A” Drilling, Inc.; that the word “collateral” was written on the front of all of the notes and meant that the notes were secured by collateral in the form of chattel mortgages, and in this instance by the original note and mortgage of Joe K. Branum; that the debt of Joe K. Branum was not extinguished by the transactions between the bank and Branums; and that the bank and Branums did not intend, nor even consider, that the debt of Joe K. Branum to the bank had been paid. The trial court concluded as a matter of law: “The note dated September 13, 1961, and the mortgage securing said note dated October 1, 1961, executed by Joe K. Branum, d/b/a Terrel Producing and Drilling Company, to the plaintiff Bank is a valid and existing lien upon the property involved and is a first and prior lien on said property specifically described. The notes, mortgages and leases executed by Joe K. Branum and made in favor of the defendants, Mountain Iron and Supply Company and Intercontinental Leasing, Inc. are inferior, junior and subordinate to the lien of the plaintiff Bank. The plaintiff’s lien covers only the property described in the plaintiff’s mortgages, and does not include additions and substitutions. The note and mortgage to the plaintiff dated November 20, 1962, is a renewal note of the orginial, and the mortgage includes purchase money for replacement of engines and equipment, the same being a valid lien in favor of the plaintiff and superior to defendants as to said replaced motors and 4700 feet of 4K" drill stem pipe.” The trial court further concluded that the value of the chattels, which defendants converted and sold, exceeded the maximum amount of damages to which the bank was entitled. On this point, the court found the value of the items identified, as those covered by the bank’s mortgage, of which defendants acquired possession and on which the bank had a lien, to be $16,320. The court found the balance due on Branum’s note, on the date of trial, to be $14,866.50 which included interest to date of trial. The cotut further found the defendants should have credit for storage, insurance and trucking in moving the rig and equipment to their yard preparatory for sale, in the amount of $1,441. The sum was stipulated to by the parties and was offset by the court against the sum found due the bank, resulting in a net judgment of $13,425.50 in favor of the plaintiff bank. Defendants argue that the debt of Joe Branum was extinguished and the mortgage terminated by a merger of rights in the mortgagee bank, effected by Joe’s delivery of a bill of sale executed in blank during the course of the transactions between the bank and Branum on March 10,1965. Whether a debt is extinguished by a conveyance of the security from the mortgagor to the mortgagee is determined by the intention of the parties. The rule is stated in 15 Am. Jur. 2d, Chattel Mortgages, § 190, p. 358: “Unless it is the intention of the parties, the passing of the interest of both the mortgagor and the mortgagee to the same person does not result in a discharge of a chattel mortgage on the theory of merger and a resultant loss of the favored position of the mortgagee. So, a merger will not be presumed because of the taking of legal title by the mortgagee or his assignee, where it is to his interest that there should be no merger. . . .” See, also, 14 C. J. S., Chattel Mortgages, § 343, p. 994. In the instant case the trial court specifically found no intention by the bank and Branum to extinguish and terminate the original note and mortgage. While the record discloses some inconsistency in the testimony of Joe Branum on this point, the testimony of M. A. Isem, President of the Peoples State Bank, was clear and definite. We believe the evidence quite sufficient to support the trial court’s finding. The principle that the doctrine of merger does not work a cancellation of a mortgage, unless an intention to release the mortgage is shown, is followed in Kansas. (Rath v. Ponsor, 114 Kan. 370, 219 Pac. 285.) We have examined the cases cited by defendants from this and other jurisdictions. We find none which control the issues presented in the instant case. Some cases, in which a merger in the mortgagee was held to cancel the original mortgage, disclose a transfer of physical possession to mortgagee along with a bill of sale as in Hansen v. Daniels et al., 73 Utah 142, 272 P. 941, or where the mortgagee recorded the bill of sale and thus became the record owner as in Northwest Hay Association v. Slayton, 137 Wash. 248, 242 P. 354. Other cases, where the intention of the parties to cancel the original mortgage was found, are, of course, distinguishable from the instant case. Defendants cite cases supporting the proposition that there is no legal restraint against a mortgagor’s selling the mortgaged property to the mortgagee in satisfaction of his debt. (Jones v. Franks, 33 Kan. 497, 6 Pac. 789, and Amos, Adm’r, v. Livingston, 26 Kan. 106.) We have no quarrel with the proposition as stated. However, as we have pointed out, cancellation of a mortgage by the application of the doctrine of merger will not be presumed and if applied it must be supported by a finding of intention. We agree that the maxim “once a mortgage, always a mortgage” does not prevent a mortgagor from selling the mortgaged property to the mortgagee in satisfaction of the debt, where the parties intended that the lender should take the property in satisfaction of the debt and where the transaction was found to be fair and reasonable to both parties. The proposition is not applicable in the face of an expressed finding that the parties did not intend to cancel the original debt and mortgage. The trial court adopted the theory that there was always a debt due the bank by Joe Branum and that by the later transactions Mary also became obligated for the same debt in addition to Joe’s continuing obligation. Under the facts, we believe the trial court was correct. A new promissory note is not payment of an old one, where each is evidence of the same debt, and the old note is retained by the payee thereof as security for the new one; and a chattel mortgage given to secure the payment of the debt, evidenced by the old note, remains as security for the payment of that debt. (Bank v. George, 105 Kan. 129, 181 Pac. 574; Fourth National Bank v. Hill, 181 Kan. 683, 314 P. 2d 312; 15 Am. Jur. 2d, Chattel Mortgages, § 196, p. 363.) On appeal, as well as before the trial court, defendants rely heavily on Woodman v. Hunter, 53 Kan. 393, 36 Pac. 713. There this court reversed a trial court’s holding that an old note and mortgage were not extinguished when the mortgagee surrendered the note and mortgage and a third party gave a new note and mortgage on new and different security, all without the knowledge and consent of the original mortgagor. The holding of the court is set out in paragraph two of the syllabus: “A mortgagee of personal property who surrenders the note secured and cancels the mortgage, in consideration of the note of a third party, secured by a new mortgage, including new and different security, -without the knowledge or consent of the original mortgagor, is bound by his own bargain, and cannot thereafter resort to the first mortgage as security for the debt.” Obviously, the facts in Woodman are clearly distinguishable from the facts as found by the trial court here. In the instant case Joe Branum, the original mortgagor, had full knowledge of the entire transaction. The new note and mortgage by Mary covered the same, rather than a new debt and different security, and the old note and mortgage were retained by the bank and not surrendered. Since no intention to cancel Joe’s original note and mortgage was found from any of the transactions between the bank and Branums, the trial court properly concluded the bank’s chattel mortgage was prior and superior to the liens of defendants. One further point requires some attention. In its memorandum decision following the trial, the trial court included a discussion of the issues and evidence and, with reference to the transactions between the bank and Branums, commented: ". . . The plaintiff Bank did not lose its prior lien on the property specifically described in its mortgage by its transaction with Mary K. Branum. The formation of a new company was merely a subterfuge to confuse and harass the creditors of Joe K. Branum, and while it might have deterred some creditors it would hardly phase a diligent one. The debt was not paid by that transaction. The parties did not intend, nor did they even seriously consider that the debt of Joe K. Branum to the Bank had been paid. Therefore, the contention of the defendants that the original chattel mortgage given by Branum to the Bank was no longer a lien on the property described therein because the debt was paid is not accepted by this Court.” Defendants latch on to the comment of the trial court and assert that it amounts to a finding of fraudulent conduct on the part of the bank, by which it is estopped to assert any right based on the mortgage obtained from Mary since it was executed for the purpose of hindering creditors. The bank’s suit and its recovery were based on Joe’s notes and mortgages, rather than on Mary’s. Joe’s mortgages, concerning which there was no suggestion of fraud, were executed in 1961 and 1962, long before the transaction with Mary in 1965. The validity of Joe’s mortgages, if not discharged, was not affected by the subsequent transactions with Mary. We find the applicable rule stated in 37 Am. Jur. 2d, Fraudulent Conveyances, § 108, p. 790, as follows: “If the intent of the parties at the time of transfer of the property appears to have been honest and lawful, the transaction cannot be held to have been fraudulent or illegal because of subsequent acts or conduct. . . .” Moreover, neither of defendants alleged fraud in either of their respective answers (see K. S. A. 60-208 and 209), nor was it suggested or claimed as a defense at any of the pretrial conferences. We believe the posttrial position taken by defendants in this regard to be wholly untenable. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Schroeder, J.: This is an appeal in a K. S. A. 60-1507 action by the petitioner from the refusal of the trial court to grant relief. Most points asserted by the petitioner stem from his failure to have a transcript of the trial in the criminal proceedings available. On the 29th day of April, 1959, the petitioner was charged in an information with statutory rape alleged to have been committed upon one Gloria Walker, a female child of the age of nine years, and with the crime of burglary and grand larceny committed in connection therewith. All of such offenses are alleged to- have been committed on the 1st day of February, 1959. In due course the jury found the petitioner guilty of an attempt to commit statutory rape embraced in the first count of the information, and guilty of grand larceny as charged in the second count. A motion- for a new trial was filed and upon hearing overruled, following which the petitioner was sentenced under the habitual criminal act to a term of not less than three years nor more than thirty-one years for the crime of attempting to commit statutory rape, and a term of not less than three years nor more than fifteen years for the crime of grand larceny, said sentences to run consecutively. No appeal was ever taken to the Supreme Court of Kansas from the judgment of conviction or the imposition of sentence. It was not until the 17th day of August, 1968, nearly ten years after his conviction, that the petitioner filed his motion to set aside the sentences pursuant to K. S. A. 60-1507 in the district court of Wyandotte County, Kansas. The trial court appointed counsel and ordered an evidentiary hearing which was set for October 8, 1968. The petitioner alleged in his motion that: “1. The State of Kansas had unconstitutionally suppressed the evidence and testimony of one Dr. A. P. Taliaferro, M. D. “2. The State of Kansas had unconstitutionally secured his conviction by the use of perjured testimony. “3. The appellant had twice been put in jeopardy for the same offense. “4. The evidence did not support a conviction of larceny of an item or items of the value of $50.00 or more.” After hearing the evidence the sentencing court denied the petitioner’s motion to set aside the sentence, and appeal has been duly perfected. The first point asserted by the petitioner is that the trial court erred in refusing to grant his motion for continuance of the 60-1507 hearing, when it became apparent he was unable to obtain a transcript of the original trial in the Wyandotte County district court. When the petitioner filed his handwritten notice to vacate the sentence, he also filed and made a request for a transcript of the original proceedings, but no transcript of the trial proceedings was prepared or available at the time of the evidentiary hearing conducted by the trial court. The record discloses his petition to set aside the sentence was filed August 17, 1968, and the petitioner was notified by the trial court in a letter on September 5, 1968, that counsel (naming him) was appointed as his attorney to represent him at the hearing which would be held on October 8, 1968. The trial court in its letter advised the petitioner to contact his attorney immediately and give him “names of witnesses that you want to call, their addresses and telephone numbers, if available, and any other relevant matters which you feel your attorney needs in presenting this case.” The record discloses the court reporter at the original trial passed away prior to the filing of the petitioner’s 1507 motion, and the court reporter’s notes had not been transcribed. Furthermore, no one was found who could read the Pittman shorthand notes taken by the deceased reporter. The trial court found the petitioner had been in correspondence with the court prior to the filing of his petition in the 1507 proceeding and knew there was no transcript available of the original trial in the criminal action, and consequently no useful purpose would be served by granting a continuance of his hearing -until a transcript of the criminal trial could be obtained. The trial court thereupon concluded the denial of the petitioner’s request for a continuance was not prejudicial. Among the statements made by the petitioner’s counsel in arguing the motion for a continuance to the trial court was the following: “. . . principally and most importantly we need a record in order to properly set out any constitutional infringements that may have occurred at Mr. Lonnie Jackson’s trial. . . .” (Emphasis added.) The record discloses petitioner’s counsel at the 1507 proceeding was aware of the fact that no record of the criminal proceedings was available and the reasons therefor. This is not a case where the trial court refused to grant the petitioner’s request for a transcript. The court is therefore confronted with the proposition that the petitioner does not allege specific errors were made in the course of the criminal proceeding, but only that infringements of his constitutional rights may have occurred. At no pont had the petitioner previously asserted this issue because no direct appeal was taken in the criminal proceeding. In Minor v. State, 199 Kan. 189, 428 P. 2d 760, the court said: “Rule No. 121 (c) (4) (194 Kan. XXVII) specifically prohibits the use of a 60-1507 proceeding as a substitute for direct appeal involving trial errors, . . . The rule requires that trial errors be corrected on direct appeal; but in the event no appeal is taken, trial errors affecting constitutional rights may be raised in this type proceeding only if there are exceptional circumstances excusing the failure to appeal.” (p. 190.) The foregoing rule now appears in the rules of the Supreme Court as Rule No. 121 (c)(3). (201 Kan. xxxiii.) Here no effort whatever has been made by the petitioner to show that exceptional circumstances existed excusing the petitioner’s failure to appeal in the criminal proceeding. (See Barnes v. State, 204 Kan. 344, 461 P. 2d 782.) Even assuming a transcript of the criminal proceedings was available, there would be no duty on the court to furnish the petitioner a copy of it. The law is quite clear that K. S. A. 1968 Supp. 62-1304 relates only to appeals and not to 60-1507 hearings. In State v. Chance, 190 Kan. 661, 662, 378 P. 2d 11, it was held the district court was not required to order the county to1 furnish the defendant a transcript of the proceeding of his trial, because the defendant did not perfect his direct appeal, citing State v. Shores, 187 Kan. 492, 357 P. 2d 798. In Stiles v. State, 201 Kan. 387, 389, 440 P. 2d 592, the petitioner in a 60-1507 hearing was denied copies of the trial transcript where no appeal had been perfected. It was said the district court was not required to order the county to furnish the defendant a transcript of his trial proceedings absent an appeal. It is to be noted K. S. A. 62-1304 was amended by Laws of 1968, ch. 130, § 1, and repealed by Laws of 1969, ch. 291, § 16. In its place the “Aid to Indigent Defendants” act was enacted by Laws of 1969, ch. 291. (See K. S. A. 1969 Supp. 62-3101, et seq., and in particular K. S. A. 1969 Supp. 62-3106; see, also, State v. Jefferson, 204 Kan. 50, 460 P. 2d 610.) The petitioner also contends the trial court erred in refusing to grant a continuance because three witnesses subpoenaed by the petitioner to testify at the 60-1507 hearing were not present. The sheriff returned the subpoenas stating he had been unable to locate them. These witnesses were named as Mr. and Mrs. Gus Wooden (parents of the complaining witness in the criminal proceedings) and Gloria Walker (complaining witness). K. S. A. 60-240 (c) provides that the granting of continuances by the court based on the absence of a material witness shall in all cases be discretionary. A proceeding conducted pursuant to 60-1507 is a civil proceeding and the foregoing section applies. K. S. A. 62-1414 provides that continuances may be granted in criminal cases for like causes and like circumstances as in civil cases. Thus, the discretionary portion of 60-240 (c), supra, applies to both criminal and civil trials. (See State v. Zimmer, 198 Kan. 479, 486, 426 P. 2d 267, cert. denied 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298; and State v. Hickock & Smith, 188 Kan. 473, 482, 363 P. 2d 541, cert. denied 373 U. S. 544, 10 L. Ed. 2d 688, 83 S. Ct. 1545.) K. S. A. 60-240 (c) also states the court need not entertain any motion for a continuance based upon the absence of a material witness, unless supported by an affidavit which shall state: “. . . the name of the witness, and, if known, his residence, a statement of his expected testimony and the basis of such expectation, a statement that the aiEant believes it to be true, and the efforts which have been made to procure his attendance or deposition. . . .” Since the petitioner has made no attempt to support his motion for a continuance with an affidavit, as contemplated by the statute, the state had no opportunity to admit that the absent witnesses would, if present, testify as stated in an affidavit, and that the testimony could be received and considered in evidence. (See State v. Milum, 202 Kan. 196, 200, 447 P. 2d 801.) The petitioner in his motion filed pursuant to 60-1507 alleged: “. . . Mr. Gus Wooden was a close friend, who served tíme with him at the Jefferson City, Missouri state prison and that it was with Mr. Gus Wooden’s permission that he “borrowed’ certain merchandise listed in Count II of the information, which was to be pawned to a Mr. Joe Fletcher and repayable to Mr. Gus Wooden upon defendant’s payday. “By establishing the fact that Mr. and Mrs. Gus Wooden ‘deliberately lied’ as to defendant’s relationship with them—defendant thus presents a prima facie case as to whether the merchandise was obtained with or without permission. “It is also relevant to note that Mr. Joe Fletcher (whom the merchandise was recovered from) was fully aware of the relationship between the defendant and Mr. and Mrs. Gus Wooden.” In view of the petitioner’s contention there was perjured and suppressed testimony, it is argued by his counsel that the tremendous significance of acquiring a trial transcript and of procuring the testimony of the three complaining witnesses, needs no extended-elaboration. Without them, it is argued, the appellant’s so-called right to a full and fair evidentiary hearing was hollow and meaningless. The burden of proof in a proceeding conducted pursuant to K. S. A. 60-1507 is upon the petitioner. Allegations by the petitioner in his motion which have no foundation in fact do not give rise to a basis for relief. For example, the petitioner alleged in his motion that the state had deliberately suppressed the testimony of Dr. A. P. Taliaferro, a doctor for the Kansas City police department; that had he been called to testify at the criminal proceedings he would have given full authoritative support to the proposition that no crime of attempted rape ever occurred upon the person of one Gloria Walker. This witness was subpoenaed by the petitioner and testified at the 1507 proceeding. Nowhere in the record is Dr. Taliaferro’s testimony abstracted. The trial court found the testimony of Dr. Taliaferro did not change the facts upon which the petitioner was convicted in the first instance. In other words, the petitioner’s charge on this point was frivolous. The appellant’s failure to bring a sufficient record before this court to disclose the nature of the testimony expected of the absent witnesses likewise suggests the petitioner’s contentions are frivolous. This is fortified by the fact that the petitioner’s testimony is not even disclosed in the record brought to this court on appeal. At the 1507 proceeding the court received the testimony of Walt Meyers, Kansas City, Kansas, municipal court clerk; Boston Daniels, Kansas City, Kansas, police department detective; Wayne Phillips, appellant’s court-appointed counsel in the original trial; the appellant, Lonnie Jackson; and Dr. A. P. Taliaferro, a police department doctor. Upon all of the circumstances presented herein, it cannot be said the trial court erred in the exercise of its power of discretion in refusing to grant the appellant a continuance of the hearing in the 1507 proceeding. The appellant contends the trial court erred in its conclusion of law that the appellant was not twice placed in jeopardy for the same offense. It is disclosed the appellant was arrested by Kansas City, Kansas, police and charged with vagrancy, rape and burglary. Subsequently, on the 25th day of February, 1959, the appellant was convicted of petty larceny in the Kansas City,- Kansas, municipal court and fined $25. Thereafter the appellant was turned over to the state and charged and convicted of grand larceny, among other things. The appellant is aware of this court’s decisions in Earwood v. State, 198 Kan. 659, 426 P. 2d 151; and Lawton v. Hand, 186 Kan. 385, 350 P. 2d 28, which hold that a defendant may be prosecuted for his actions under both a city ordinance and state statute. But the appellant requests the Supreme Court to reappraise this rule, contending the state acts at its peril in choosing the forum in which to prosecute the accused. Unfortunately the court does not reach this point. Nowhere in the record does the appellant show that the two larceny charges arose out of the same incident. He does not show anywhere that the convictions in both jurisdictions arose out of stealing the same property, and the trial court so found. Assuming the petitioner testified in support of the allegations of his petition, this court has held that a petitioner’s uncorroborated statements in a 1507 proceeding will be deemed insufficient to sustain the burden of proof. (Stiles v. State, supra; and Chambers v. State, 199 Kan. 483, 485, 430 P. 2d 241.) Furthermore, double jeopardy is an affirmative defense that a defendant waives by failing to raise it in a timely manner. (State v. Ward, 198 Kan. 61, 64, 422 P. 2d 961; and Cox v. State, 197 Kan. 395, 416 P. 2d 741.) Here the appellant did not appeal his conviction in the criminal proceeding. Assuming the appellant had the defense of double jeopardy, we must conclude he waived this affirmative defense. We hold the trial court did not err in denying the appellant’s motion to vacate his sentence pursuant to K. S. A. 60-1507. The judgment of the lower court is affirmed.

The opinion was delivered by Luckert, J.: This case involves five consolidated telecommunication cases where the Board of Tax Appeals (BOTA) upheld the Department of Revenue’s (Department) denial of refund claims. Five telecommunication companies seek a refund of the sales tax paid on purchases of telecommunication equipment in Kansas during the time period of March 1994 through March 2000 of telecommunication equipment which “consists of, among other things, switches, computers, and related peripheral equipment (including repair and replacement parts and accessories)” which is “utilized either in engineering a finished telecommunications product or in controlling or measuring the process of manufacturing such a product.” The refund claims are based on the manufacturing exemption contained in K.S.A. 79-3606(kk). The controversy focuses on whether the equipment was machinery and equipment utilized to manufacture tangible personal property for resale or to provide a service. The taxpayers are Sprint Communications Company, L.P.; United Telephone Co. of Kansas; United Telephone Co. of Missouri; United Telephone Co. of Arkansas; and United Telephone Co. of Iowa (Taxpayers). It is undisputed that Taxpayers provide intrastate and interstate telecommunication services in the state of Kansas which are subject to the Kansas retailers’ sales tax pursuant to K.S.A. 2003 Supp. 79-3603(b). The designee of the Secretary of Revenue denied Taxpayers’ claims for refunds of sales and use tax, and Taxpayers timely appealed to BOTA. The Department filed a motion for summary judgment with BOTA, arguing that, as a matter of law, Taxpayers’ machineiy and equipment did not qualify for exemption under K.S.A. 79-3606(kk) because Taxpayers do not manufacture tangible personal property for resale. Rather, Taxpayers’ telecommunication product is statutorily defined as a service under K.S.A. 79-3602(k) and 79-3603(b). Taxpayers filed a response and cross-motion for summary judgment, arguing that their machineiy and equipment qualifies for exemption under K.S.A. 79-3606(kk) because it is used in the process of manufacturing telecommunica- lions, which are comprised entirely of tangible personal property— electricity. In their response to the Department’s motion for summaiy judgment and cross-motion for summary judgment, Taxpayers asserted the following facts: “1. A telecommunication is similar, if not identical, to electricity in its composition. . . . “2. The conversion of electrical signals from analog to digital and back to analog results in a physical change to tangible personal property.. . . “3. A telecommunication is comprised entirely of electricity.” In support of these statements of fact, Taxpayers attached the affidavit of Charles Bell, a Senior Network Evolution Planner for Sprint, which stated: “A telecommunication is comprised entirely of electricity. Sprint must convert electricity provided by its supplier from AC current to DC current in order to be able to process a call through the central office switch. The conversion from DC current to AC current takes place via a battery bank maintained at the central office switch.” The affidavit also quoted the following passage from Southwestern Bell Tel. v. Director of Rev., 78 S.W.3d 763, 764-68 (Mo. 2002), as an' accurate explanation of the creation of a telecommunication: “When a person picks up a telephone, a dial tone is produced by electrical currents flowing between the telephone and the central office switch. [Footnote omitted.] Once the customer inputs the desired number, the central switch analyzes the electrical pulses or tones to determine the proper routing of the call. A separate system . . . sends out a data message, which is used by the receiving switch to determine whether the line is free or busy. The caller then hears either the familiar ring or busy signal. If the person on the receiving end picks up the telephone, a voice connection is established. The vibrations of a person's voice are converted by the telephone into an analog signal. Depending on the type of switching office, the signal remains analog as it is transmitted or is converted into a digital signal. “An analog signal travelling over a telephone wire loses strength because of the resistance of the wires. The signal, along with any additional noises on the circuit, must be amplified to travel over long distances. If the switching office is analog, the signal is transported across the wire, amplified as necessary and then reconverted into a voice signal for the other listener. “If the switching office is digital, the analog signal is ‘sampled’ at a very high rate into a digital signal. [Footnote omitted.] This signal goes through the system and is converted into a voice signal on the other end. Instead of being a sound wave, a digital signal is transported as a package of data. Because it is digital data that can be regenerated, instead of being amplified, there is no risk of other noises being amplified with the voice data.” “. . . The listener requires that the voice be ‘manufactured’ into electronic impulses that can be transmitted and reproduced into an understandable replica. The end ‘product’ is not the same human voice, but a complete reproduction of it, with new value to a listener who could not otherwise hear or understand it. . . . “Basic telephone service . . . [is] manufactured.” 78 S.W.3d at 764-68. The Department responded that the Taxpayers’ three statements of fact were controverted and irrelevant. The Department argued that the technicalities of the telecommunications process were irrelevant to the question of law before BOTA because the Kansas Retailers’ Sales Tax Act defines telecommunications as a service. Nonetheless, the Department also contested Taxpayers’ factual allegations. As to Taxpayers’ first and third statements that “[a] telecommunication is similar, if not identical, to electricity in its composition” and “[a] telecommunication is comprised entirely of electricity,” the Department responded: “The term ‘telecommunication’ is a generic term describing one-way and two-way transmission of information by means of electromagnetic and/or electro-optical systems. Electricity is used in telecommunication.” According to the Department, the information being conveyed and the entirety of the information transmission system and its processes cannot be described as “similar, if hot identical, to electricity in composition,” nor are they “comprised entirely of electricity” as alleged by Taxpayers. As to Taxpayers’ second statement that “[t]he conversion of electrical signals from analog to digital and back to analog results in a physical change to tangible personal property,” the Department responded: “Converting a signal ‘from analog to digital and back to analog’ results in no change. The signal is received as analog and is ultimately delivered as analog. And, the information carried by the signal is preserved as closely to the original as possible.” The Department also asserted additional facts in opposition to Taxpayers’ cross-motion for summaiy judgment. The Department’s additional facts related to the nature of telecommunications, the use of electrical current in telecommunication services, the function of telecommunication services users’ equipment, and the telecommunication companies’ delivery of service. On March 18, 2003, BOTA issued a 3-2 opinion in favor of the Department, ruling that Taxpayers’ machinery and equipment did not qualify for the manufacturing exemption from sales tax under K.S.A. 79-3606(kk) because other provisions of the Kansas Retailers’ Sales Tax Act define telecommunications as a service. BOTA also ruled that the Department’s application of K.S.A. 79-3606(Wc) to exclude telecommunications companies did not violate the Equal Protection Clauses of the United States and Kansas Constitutions. The two dissenting members of BOTA believed that there remained “genuine controverted mixed issues of law and fact” relating to whether telecommunications is a service or whether it involves the manufacturing of tangible personal property. The dissenters would have denied both motions for summary judgment and allowed the case to proceed to a full evidentiary hearing. BOTA denied a timely motion for reconsideration, and Taxpayers timely appealed. Taxpayers’ appeals were consolidated by the Court of Appeals, and the case was transferred to this court on its own motion pursuant to K.S.A. 20-3018(c). Did BOTA Err in Determining That Appellants Were Not Eligible for the Sales Tax Exemption Under KS. A. 79-3606(kk)P BOTA orders are subject to review under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. K.S.A. 77-621 sets out the scope and standard of review. The provisions relevant to our review of the issues raised in this case restrict our granting of relief except where: “(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied” or “(4) the agency has erroneously interpreted or applied the law.” K.S.A. 77-621(c). This court recently restated some of the principles governing appellate review of a BOTA decision, In re Tax Appeal of Colorado Interstate Gas Co., 276 Kan. 672, 682-83, 79 P.3d 770 (2003): “BOTA is a specialized agency and is considered to be the paramount taxing authority in this state. [Citation omitted.] BOTA is a specialized agency that exists to decide taxation issues. [Citation omitted.] Its decisions are given great weight and deference when it is acting in its area of expertise. [Citation omitted.] The party challenging BOTA’s decisions has the burden to prove that the action taken was erroneous. [Citation omitted.] However, if BOTÁ’s interpretation of law is erroneous as a matter of law, appellate courts will take corrective steps. [Citation omitted.]” In resolving Taxpayers’ claim for exemption from taxes, we must also consider special principles applicable to judicial construction of tax statutes. “When construing tax statutes, statutes that impose the tax are to be construed strictly in favor of the taxpayer. Tax exemption statutes, however, are to be construed strictly in favor of imposing the tax and against allowing the exemption for one who does not clearly qualify. [Citation omitted.]” In re Tax Exemption Application of Central Illinois Public Services Co., 276 Kan. 612, 616, 78 P.3d 419 (2003). Taxpayers claim the exemption under K.S.A. 79-3606(kk), seeking refund for the time period from March 1994 through March 2000. Although the provision has been amended since 1997, the parties agree that the amendments are inapplicable. In relevant part, K.S.A. 79-3606(kk) provides: "The following shall be exempt from the tax imposed by this act: “(kk) on or after January 1, 1989, all sales of machinery and equipment used directly and primarily for the purposes of manufacturing, assembling, processing, finishing, storing, warehousing or distributing articles of tangible personal property in this state intended for resale by a manufacturing or processing plant or facility or a storage, warehousing or distribution facility: “(2) For purposes of this subsection ‘machinery and equipment used directly and primarily’ shall include, but not be limited to: “(D) computers and related peripheral equipment that directly control or measure the manufacturing process or which are utilized for engineering of the finished product.” Taxpayers argue that their machinery and equipment are exempt from taxation under this provision because they are used primarily and directly to produce telecommunications, which should be considered tangible personal property. Taxpayers argue that, since telecommunications are comprised entirely of electricity, they should be treated as tangible personal property in the same way as electricity. See In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 238, 891 P.2d 422 (1995) (finding it was undisputed that electricity is “tangible personal property” subject to the sales tax exemption pursuant to K.S.A. 79-3602[m][B]). Taxpayers seek a judicial determination that the manufacturing of telecommunications constitutes manufacturing of tangible personal property for resale as a matter of law. The Department responds that the legislature has conclusively defined telecommunications as a service, not tangible personal property, for purposes of the Kansas Retailers’ Sales Tax Act; therefore, Taxpayers’ machinery and equipment cannot meet the requirements of the K.S.A. 79-3606(kk) manufacturing exemption as a matter of law. Thus, the Department contends that Taxpayers’ explanation of the technicalities of the telecommunication process is immaterial and irrelevant. K.S.A. 79-3602(k) provides that “service” means those services described in and taxed under K.S.A. 79-3603. K.S.A. 79-3603 imposes a tax “for the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable under this act.” (Emphasis added.) Subsection (b) imposes the tax on “(1) the gross receipts from intrastate telephone or telegraph services and (2) the gross receipts received from the sale of interstate telephone or telegraph services.” (Emphasis added.) BOTA relied upon these provisions in ruling that the Taxpayers did not qualify for the exemption in K.S.A. 79-3606(kk). We agree with BOTA’s conclusion that the language of the Kansas Retailers’ Sales Tax Act is plain and unambiguous in that it defines telecommunication services to be a service and not tangible personal property. Further, the legislature did not reference telecommunication services in K.S.A. 79-3606(kk). Many of the various tax exemptions contained in K.S.A. 79-3606 do use the term “services.” For example, K.S.A. 79-3606(m) provides an exemption for “all sales of tangible personal property which become an ingredient or component part of tangible personal property or services produced, manufactured or compounded for ultimate sale at retail within or without the state of Kansas.” (Emphasis added.) K.S.A. 79-3606(n) provides an exemption for “all sales of tangible personal property which is consumed in the production, manufacture, processing, mining, drilling, refining or compounding of tangible personal property, . . . [or] the providing of services ... for ultimate sale at retail within or without the state of Kansas.” (Emphasis added.) Clearly, the legislature knows how to draft an exemption which applies to the providing of services when it so intends. Nonetheless, Taxpayers urged BOTA and now this court to look beyond legislative definitions to the actual process used in the creation of telecommunications. According to Taxpayers, it is undisputed that disturbances in an electric current are what form a communication signal. Because electricity is tangible personal property for sales tax puiposes, telecommunications must also be tangible personal property. The first problem with this argument is that the facts regarding the actual telecommunications process and the role of electricity were controverted; the Department believed the technicalities of the telecommunications process were irrelevant but it contested the Taxpayers’ factual allegations as to how a telecommunication was created. The second problem with Taxpayers’ argument is that electricity is tangible personal property because the legislature defined it as such for purposes of the Kansas Retailers’ Sales Tax Act. In Col-lingwood Grain, the case relied upon by Taxpayers, the issue was whether the sale of electricity consumed in grain elevator operations for the aeration, blending, cleaning, and drying of grain was exempt from sales tax pursuant to K.S.A. 79-3602(m)(B) and 79-3606(n). The latter provision provides for a sales tax exemption on “all sales of tangible personal property which is consumed in the production, manufacture, processing, mining, drilling, refining or compounding of tangible personal property ... for ultimate sale at retail within or without the state of Kansas.” K.S.A. 79-3606(n). K.S.A. 79-3602(m) defines “[property which is consumed” as: “[T]angible personal property which is essential or necessary to and which is used in the actual process of and immediately consumed or dissipated in (1) the pro duction, manufacture, processing, mining, drilling, refining or compounding of tangible personal property ... for sale in the regular course of business, and which is not reusable for such purposes. The following items of tangible personal property are hereby declared to be ‘consumed’ . . . (B) electricity, gas and water.” It was not disputed that electricity was “tangible personal property” under this provision. 257 Kan. at 238. Rather, the issue was whether the aeration, blending, cleaning, and drying of grain constituted production, manufacturing, processing, refining, or compounding for purposes of the tax exemption statute. BOTA held that to qualify for the exemption, the product need not be transformed into a substantially different product; rather, transformation into an improved marketable product was sufficient. 257 Kan. at 244. This court agreed, finding that the grain was of a different quality after the processes were performed and holding that the electricity used by the taxpayers in performing those processes was exempt from sales tax. 257 Kan. at 251r52. Hence, all that Collingwood Grain instructs us is that the legislature included electricity in its definition of tangible personal property for purposes of determining what constitutes exempt “property which is consumed” under K.S.A. 79-3606(n). However, the legislature did not include telecommunications within its definition of “property which is consumed” at K.S.A. 79-3602(m)(B), nor within its definition of “tangible personal property” at K.S.A. 79-3602(f). Rather, the legislature has defined telecommunications as a service pursuant to K.S.A. 79-3602(k) and 79-3603(b). Taxpayers urge this court to apply the same analysis as did the Minnesota Supreme Court in Sprint v. Commissioner of Revenue, 676 N.W.2d 656 (Minn. 2004). In Sprint, several telecommunication companies claimed refunds of sales taxes paid on capital equipment purchases. The companies argued that equipment used for their local exchange, wireless, and long distance services qualified for an exemption as capital equipment “used to manufacture Tangible personal property ... to be sold ultimately at retail/ See Minn. Stat. § 297A.01, subd. 16(a) (2000); Minn. Stat. § 297A.01, subd. 16(d)(4) (2000).” 676 N.W.2d at 657. The relevant Minnesota statute defined “tangible personal property” as “cor poreal personal property of any kind whatsoever.” 676 N.W.2d at 657. See Minn. Stat. § 297A.01, subd. 11 (2000). The Minnesota Supreme Court found that the telecommunications companies were eligible for the exemption because “[their] telecommunications equipment manufactures a product by converting voice and other raw data into a form that can be conveyed, measured, sold, and is perceived by the senses. The matter is transformed, processed, refined, amplified, packetized,’ routed, reconstructed, regenerated, and delivered into digital and optical forms in order to send sound waves, analog signals, and light pulses to the receiver. The form produced can be heard, seen, felt, and received by human senses under certain circumstances and can be precisely measured. As with electricity, telecommunications is corporeal personal property ‘of any kind whatsoever’ [footnote omitted] and includes all things which may be perceived by any of the bodily senses, including, but not limited to, touch, sight, hearing and, in this case, can be precisely measured, directed and delivered for use by a retail customer. Our traditional analysis and precedent would categorize this telecommunications equipment as refining or manufacturing a product ‘to be sold ultimately at retail.’ [Citation omitted.]” 676 N.W.2d at 663-64. Like Minnesota, Kansas defines “tangible personal property” as “corporeal personal property.” K.S.A. 79-3602(f). While Sprint does support Taxpayers’ argument that the creation of telecommunications constitutes the manufacturing of tangible personal property for resale, it is not binding precedent and is distinguishable because of the unique language of the Kansas Act which defines telecommunications as services. The parties have also cited cases from other jurisdictions, including Southwestern Bell Tel. v. Director of Rev., 78 S.W.3d 763, 768 (Mo. 2002) (telecommunications are intangible products that are manufactured and not tangible personal property), and Bell Atlantic Mobile Systems, Inc., v. Com., 799 A.2d 902 (Pa. Commw. 2002), aff'd 577 Pa. 328, 845 A.2d 762 (2004) (telecommunications are tangible personal property but are not manufactured). These cases are also dependent on the language of the state tax statutes at issue and those statutes are even less comparable to the Kansas statutes than are the Minnesota statutes at issue in Sprint. Our conclusion is governed by the plain and unambiguous language of the Kansas Retailers’ Sales Tax Act, which defines telecommunications as a service and not tangible personal property. Therefore, we conclude that equipment utilized in engineering a telecommunication product or in the process of controlling or measuring the telecommunication process is not exempt from sales taxation under the exemption provision of K.S.A. 79-3606(kk), which applies, in relevant part, to purchases of machineiy and equipment used in the manufacture of tangible personal property. Did the Department of Revenue’s Application of K.S.A. 79-3606(kk) to Deny Refunds Violate the Equal Protection Clauses of the Kansas and United States Constitutions P Next, Taxpayers argue that the Department’s interpretation of K.S.A. 79-3606(kk) to deny them the exemption violates the Equal Protection Clauses of the United States and Kansas Constitutions because it treats similarly situated taxpayers differently. Specifically, Taxpayers complain that the Department allows the exemption for machineiy and equipment used by electric companies to manufacture electricity. The Department denies this, claiming it allows the exemption for machinery and equipment which generates electricity but not for machinery and equipment which transmits or distributes electricity. With regard to the Taxpayers’ equal protection argument, BOTA determined that while it did not have authority to declare a statute unconstitutional, it did have authority to determine whether the Department’s application of a statute was unconstitutional. However, BOTA found the Taxpayers’ argument to be without merit. BOTA stated: “The Act is clear that telecommunication services are not included in K.S.A. 79-3606(kk). Further, as the Department points out, electricity companies and telecommunication providers are treated equally. Specifically, the machinery used by electric companies in the service of delivering electricity is not exempt. See K.S.A. 79-3603(c). Consistently, the machineiy used by telecommunication providers in the service of delivering information is also not exempt. As such, all delivery service machinery is taxed. Therefore, the Department’s interpretation and application of K.S.A. 79-3606(kk) has not violated the constitutional rights of the Taxpayers.” The Fourteenth Amendment to the United States Constitution guarantees equal protection of the laws, and the Kansas Consti tution provides virtually the same protection. See Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, 609, 24 P.3d 113 (2001). “If similarly situated taxpayers receive disparate treatment, the one receiving the less favorable treatment may have been denied equal protection of the law even if the taxpayer receiving the less favorable tax is taxed according to the law. [Citation omitted.] However, the taxpayer seeking to establish a violation of the Equal Protection Clause must demonstrate that his or her treatment is the result of a ‘deliberately adopted system’ which results in intentional systematic unequal treatment. [Citation omitted.]” In re Tax Appeal of City of Wichita, 274 Kan. 915, 920, 59 P.3d 336 (2002). This court has stated the following rules with regard to its consideration of a claim that a tax statute violates equal protection: “ ‘A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.’ Syl. ¶ 2. “ ‘Equal protection is implicated when a statute treats “arguably indistinguishable” classes of people differently. . . . ’ Syl. ¶ 3. “ ‘The rational basis standard (sometimes referred to as the reasonable basis test) applies to laws which result in some economic inequality. Under this standard, a law is constitutional, despite some unequal classification of citizens, if the classification bears a reasonable relationship to a valid legislative objective.’ Syl. ¶4\ “ “ ‘The reasonable basis test is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ Syl. ¶ 5. “ ‘A plaintiff asserting the unconstitutionality of a statute under the rational basis standard has the burden to negate every conceivable basis which might support the classification.’ Syl. ¶ 6. “ ‘In taxation, even more than in other fields, legislatures possess the greatest freedom in classification.’ Syl. ¶ 7.” In re Tax Appeal of Alsop Sand Co., Inc., 265 Kan. 510, 522, 962 P.2d 435 (1998) (quoting Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 930 P.2d 1 [1996], cert. denied 520 U.S. 1229 [1997]). Applying these principles, we conclude that Taxpayers have failed to establish an equal protection violation. First, as the De partment points out, beyond comparing electricity and telecommunications, Taxpayers have failed to demonstrate that they are similarly situated to electric companies or that they have been the victim of any “deliberately adopted system” resulting in intentional unequal treatment. Nor have Taxpayers negated every conceivable basis which might support the classification differentiating between telecommunications companies and electric companies. The Department contends the legislative intent is clear that the tax exemption contained in K.S.A. 79-3606(kk) was intended to benefit manufacturers of goods rather than service providers. In Alsop Sand, this court discussed the legislative history of K.S.A. 79-3606(kk) and stated that its purpose was “to make the expense of expansion or modernization of a Kansas manufacturing plant competitive with the expense in neighboring states and ... to assist in attracting new manufacturing plants to this state.” 265 Kan. at 520. As noted by the Department, telecommunications companies are simply not the equivalent of manufacturing plants and have never been viewed as such. Taxpayers counter that electric companies provide both the product of electricity and the service of delivery and transmission of electricity, just as telecommunications companies provide both the product of telecommunications and the service of delivery and transmission of telecommunications. However, the Department points out that these industries are, in fact, different because electric companies sell electricity to their customers for consumption whereas telecommunication companies only use electricity to deliver telecommunication services to their customers. In conclusion, Taxpayers have failed to meet their burden of establishing an equal protection violation. Did BOTA Properly Apply the Rules Applicable to Summary Judgment When it Rendered its DecisionP As an alternative argument, Taxpayers point out that two dissenting BOTA members concluded there was insufficient evidence in the record to decide the issues in the case and that summary judgment was not appropriate. The dissenting opinion stated: “In our opinion, neither party has provided expert testimony vis-a-vis their respective affidavits that unequivocally refutes the other parties’ expert testimony on the key issues before the Board in these matters. In fact, there appear to be genuine controverted mixed issues of law and fact that preclude either party from satisfying the standards for summary judgment under K.S.A. 60-256(c), and amendments thereto. Such issues include: (1) whether telecommunications is purely a service or whether it involves the processing of tangible personal property, in whole or part; (2) whether the delivery of information via a telecommunications signal constitutes manufacturing’ or 'processing’ under K.S.A. 79-3606(kk); (3) an identification of all processes that occur during a telecommunications call and the relevance of those processes to exemption availability under K.S.A. 79-3606(kk); and, (4) the intent of the Legislature in enacting K.S.A. 79-3606(kk).” The dissenters noted the Department’s argument that telecommunications are defined as services as a matter of law, but they apparently also found persuasive the Taxpayers’ electricity argument. The dissenters concluded that the issue should be resolved in a full evidentiary hearing. Taxpayers contend that this court could reach the same conclusion and reverse and remand the case to BOTA for a full evidentiary hearing. The Department points out that, in oral argument before BOTA, both sides agreed that the dispositive issue could be determined by BOTA as a matter of law. Furthermore, Taxpayers filed a motion to stay discovery, which asserts that none of the discovery responses are needed to decide the legal issue before BOTA. The Department also contends that BOTA applied the correct standard of review in determining that telecommunications are services as a matter of law. BOTA ruled that Taxpayers’ machinery and equipment did not qualify for the manufacturing exemption from sales tax under K.S.A. 79-3606(kk) because other provisions of the Kansas Retailers’ Sales Tax Act define telecommunications as a service. Because the issue before BOTA was framed as a question of law, and BOTA ruled only on that question of law, there was no need for BOTA to delve into the actual telecommunications process. Although the facts regarding the telecommunications process were controverted, those facts were irrelevant given the way BOTA resolved the legal issue. Accordingly, BOTA did not err in its application of summary judgment rules. Affirmed.

The opinion of the court was delivered by Beier, J.: Lloyd Messer appeals his conviction of misdemeanor false impersonation of a Kansas Bureau of Investigation (KBI) agent. He claims the governing statute, K.S.A. 21-3824, is unconstitutional and the evidence against him insufficient. We affirm. The conviction arose out of a conversation between Messer and his neighbor, Michael Kirch. The details of the conversation were disputed. Kirch reported to authorities that Messer brought up Kirch’s ex-wife and children, saying he knew where she lived, where she worked, the places she frequented, and with whom she associated. When Kirch asked how Messer knew these things, Messer responded that he was a “triple agent” with the KBI. Messer went on to allege that there was a fencing operation under way at an antique mall where Kirch’s ex-wife worked and that she was under investigation. Messer declared that he was a “profiler” and that he used to be a “bounty hunter.” When Kirch asked to see Messer’s identification, Messer said he did not carry a badge because he was undercover. Kirch also testified that Messer requested a picture of Kirch’s ex-wife, which Kirch did not provide. Kirch pondered his conversation with Messer for a few days before reporting it to the police. He was motivated to make the report by fear for his ex-wife’s and children’s safety. A KBI agent testified that Messer had never worked for the KBI and that the KBI does not have a position called “triple agent.” He also testified that there was no investigation involving the antique mall and that the KBI did not hire its own profilers. An investigator testified that Messer told him he had associated with people with the KBI. Messer also told the investigator that he had “profiled” for attorneys in the past and that he was good at it. The investigator testified that Messer knew information about Kirch’s ex-wife, including where she lived, and that Messer had purchased items from a garage sale at her house. Messer testified that the conversation started, when Kirch asked about the neighborhood. Messer told Kirch that his home had been burglarized but, because there were no signs of forced entry, the police had been unable to help him retrieve the stolen items. Mes-ser claimed that he purchased some of the stolen items back from a garage sale and an antique mall. At trial, Messer argued that he did not know that the garage sale he mentioned happened to be close to Kirch’s ex-wife’s house or that Kirch’s ex-wife worked at the antique mall. He also asserted that he had never been a “profiler” for the KBI, and denied knowing any information about Kirch’s ex-wife. He said he had called himself a “profiler” because he was good with details, had a good memory, could put information together, and could easily remember faces. He maintained that he had always been a “profiler” but had never worked for any law enforcement agency. Messer also testified that Kirch brought up the KBI. Kirch had wondered why Messer did not work, and stated: “[Y]ou’ve got to be either working undercover or doing something illegal.” Messer explained he had worked as an independent remodeling contractor, but too many injuries had forced him to stop working. Messer told Kirch that he had been interviewed by KBI agents regarding a death in Ottawa. He denied working for the KBI but told Kirch about his “profiling” abilities and said he had been a “bounty hunter” in the early 1970s. By “bounty hunter,” Messer meant that he had worked with a bail bondsman. The district court held that K.S.A. 21-3824 “merely requires a holding out that one is a public officer or public employee. Nobody has to rely on that holding out.” Noting the different versions of the conversation, the district court emphasized that the investigator s testimony supported Kirch’s version of the facts and found Messer guilty of false impersonation of a KBI agent. K.S.A. 21-3824 provides in pertinent part: “False impersonation is representing oneself to be a public officer or public employee or a person licensed to practice or engage in any profession or vocation for which a license is required by the laws of the state of Kansas, with knowledge that such representation is false.” Messer asserts that this statute is unconstitutionally overbroad, unduly burdening his free speech rights. He argues that he was merely telling stories and should be entitled to exaggerate. Although he acknowledges that he does not have the right to say “I am an agent working for the KBI,” he contends K.S.A. 21-3824 must be construed to require proof of an overt act or a specific intent to deceive before he can be convicted. The State first asserts that Messer failed to preserve this constitutional argument for appeal. “ ‘[W]hen constitutional grounds are asserted for the first time on appeal, they are not properly before [this court] for review.’ ” State v. Conley, 270 Kan. 18, 30, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001) (quoting State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 [1996]). We regard Mes-ser’s counsel’s argument to the district court that a guilty verdict “would be criminalizing what would otherwise be free speech” adequate to preserve the overbreadth argument. Messer’s argument nevertheless fails on the facts and the law. Factually, acceptance of Messer’s overbreadth argument would require this court to reweigh Messer’s and Kirch’s credibility. This is not our function. See State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000). The district judge who heard and observed both men’s testimony found Kirch’s version of the conversation more believable. This version included Messer representing himself as an agent of the KBI with information about Kirch’s ex-wife. We cannot reject Kirch’s version of the conversation and adopt Mes-ser’s on appeal. Legally, our standard of review is de novo. See State v. Maass, 275 Kan. 328, 64 P.3d 382 (2003) (interpretation of statute); State v. Seck, 274 Kan. 961, 964, 58 P.3d 730 (2002) (determination of statute’s constitutionality). Messer relies upon Kansas’ prior false impersonation statute, Kansas’ felony false impersonation statute, and other jurisdictions’ false impersonation statutes to argue that our current statute requires proof of an overt act or a specific intent to mislead another. “In Kansas, all crimes are statutory and the elements necessaiy to constitute a crime must be gathered wholly from the statute.” State v. Sweat, 30 Kan. App. 2d 756, 760, 48 P.3d 8 (2002) (quoting State v. Crockett, 26 Kan. App. 2d 202, 205, 987 P.2d 1101 [1999]). There is nothing ambiguous or unclear about the language of the statute before us. We need not employ canons of statutory construction to discern its meaning or the legislative intent supporting its passage. We also need not compare it to other current or repealed statutes from this or any other jurisdiction. The statute’s plain language does not require proof of an overt act beyond the false representation itself, and it does not require proof of a specific intent to deceive. Furthermore, both the Court of Appeals and this court have previously rejected an argument that the statute requires proof of an overt act beyond the making of a false representation. In State v. Marino, 23 Kan. App. 2d 106, 929 P.2d 173 (1996), the defendant was a Harvard Law School graduate but not licensed to practice in Kansas. He appeared on television, stating he had practiced law in Kansas City “off and on for about the last 8 years,” handling criminal and divorce cases. 23 Kan. App. 2d at 107. He appealed his later false impersonation conviction based on this statement, including an argument that the statute was overbroad. Marino’s challenge failed. The Court of Appeals did not require proof that Marino had actually tried to practice law in Kansas, or that anyone had relied on his statements, to uphold the conviction. Marino, 23 Kan. App. 2d at 111. In Seek, 274 Kan. 961, the defendant was suspended indefinitely from the practice of law. During the suspension, he used letterhead with “Kenneth P. Seek, Attorney and Counselor at Law” printed on it to send a letter to the owner of a newspaper, threatening to bring a lawsuit. 274 Kan. at 962. This court held that the prohibited act in Seek’s case was to represent that he was licensed to practice law when he was not. “There is no constitutionally protected act which is prohibited or curtailed [by the statute]. The statute is not constitutionally overbroad.” 274 Kan. at 965. Here, according to Kirch’s version of the conversation, Messer made an unequivocal false representation that he was a “triple agent” for the KBI. This was not mere puffing. It did not test the outer limits of constitutionally protected speech. We see no reason to reconsider our earlier holding that the statute is not unconstitutionally overbroad. Finally, Messer also argues there was insufficient evidence to find him guilty of false impersonation. When the sufficiency of the evidence is challenged, “the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). Because Messer’s sufficiency claim relies upon elements of the crime that we refuse to read into the legislature’s choice of statutory language, his claim fails. The State presented ample evidence of the elements actually required, and wé have no trouble concluding that a rational factfinder could have found Messer guilty beyond a reasonable doubt. Affirmed.

The opinion was delivered by Luckert, J.: This is a dispute between an ex-wife and the second wife over federal survivor benefits. The ex-wife had been awarded a percentage of the benefits as part of a property settlement agreement at the time of divorce. The husband subsequently tried to change the beneficiary when he remarried but his request was denied by the Merit Systems Protection Board. Following husband’s death, the second wife filed this action as a postdivorce motion to intervene. The district court ordered the ex-wife to pay a portion of the survivor benefits to the second wife. The ex-wife refused to comply and was found in contempt of court. She appeals. Facts Jacqueline Kay Shevling (Kay) and Harley Eugene Shevling (Gene) divorced in 1985 after 25 years of marriage. Their Property Settlement Agreement (PSA), which was incorporated into the di vorce decree, provided that Gene would allocate to Kay “the maximum survivor annuity” under his Civil Service Retirement. Gene’s retirement benefits accrued while Gene was working for the federal Food and Drug Administration where he was employed during his marriage to Kay and after the divorce until his retirement. On the same day that Gene and Kay signed the PSA, they also signed an agreement stating that, in the event Gene retired or remarried, Kay agreed to modify the original divorce decree so that, rather than receiving full survivor benefits, she would receive an amount at least equal to 55% of a base rate of $5,000 per year. This separate agreement was not attached to or filed with the original divorce decree and PSA. Kay testified that she agreed to sign the separate agreement because Gene was refusing to sign the original PSA unless she agreed to the change. Kay was getting ready to leave for a job in Europe and the divorce had already “dragged out for a year.” Kay realized she was giving up the maximum survivor benefits and would only receive $200 per month if Gene retired or remarried, but she was “desperate for a divorce.” Kay also testified that Gene told her the reason he wanted to reduce her survivor benefits was that giving her the maximum survivor benefits would reduce the amount of benefits he would receive when he retired. Gene retired in 1989 and shortly thereafter realized that the Office of Personnel Management (OPM) was calculating his benefits based upon full survivor benefits to Kay rather than partial survivor benefits as contemplated by his June 1985 agreement with her. He wrote to the OPM about this perceived mistake. OPM responded that it was calculating Gene’s benefits correctly based upon the divorce decree which provided for full survivor benefits to Kay and that Kay’s notarized letter documenting her agreement to a lesser amount of benefits was not sufficient. Gene then provided OPM with an agreed court order, signed by Kay and filed on June 18, 1990, which purported to correct the original PSA and reflected tire parties’ separate agreement wherein Kay agreed to the reduction in her survivor benefits. The agreed order stated that the parties had intended to incorporate the sep arate agreement into the original PSA but had failed to do so as a result of inadvertence or mistake. In September 1990, Gene married Judith Shevling (Judy). Gene attempted to elect full survivor benefits for Judy with the exception of that portion allocated to Kay under their agreement. OPM informed Gene that, under federal law, it must honor the provisions of Gene and Kay s divorce decree and not the agreed order modifying the divorce decree because that order was not filed until after Gene’s retirement. Thus, Kay was entitled to the maximum survivor annuity and Judy was entitled only to a contingent survivor annuity, i.e., if Kay died or remarried. Gene appealed OPM’s decision to the Merit Systems Protection Board which affirmed OPM’s decision. Kay attempted to assist Gene in the appeal process by writing a letter to the Board affirming that, at the time of the divorce, she had agreed to receive reduced survivor benefits in the amount of approximately $200 per month. Gene did not further appeal the Board’s decision. When Gene died in April 2001, the government began sending full survivor benefits to Kay. In August 2001, Judy filed a motion to intervene in Gene and Kay’s divorce seeking to enforce the prior agreement regarding the survivor benefits. One month later Judy filed a limited actions petition in which she alleged that Kay “had agreed and promised in writing and orally that the Plaintiff would be entitled to the death survivor benefits of Harley Eugene Shevl-ing.” The actions were consolidated. After an evidentiary hearing, the district court ruled that Kay was bound by her agreement with Gene to waive all but 55% of the base rate of $5,000 in survivor benefits. The court found the fact that the federal government could not malee the payments in the manner the parties had agreed did not excuse Kay from following the agreement. Accordingly, the court ordered Kay to pay Judy all but $229.17 per month of the survivor benefits she was receiving. The court also awarded Judy a money judgment of $17,504 for accrued past payments. Kay filed a motion for reconsideration which the court ultimately denied in January 2003. On January 7, 2003, the district court filed an amended journal entry of judgment, from which Kay timely appeals. In April 2003, Judy filed an accusation in contempt alleging that Kay had refused to abide by the district court’s order and had taken affirmative steps to hide assets and income. The district court held a contempt hearing and, on June 26, 2003, ruled that Kay was willfully violating the court’s order by failing to send Judy her portion of the survivor benefits. The court found Kay to be in contempt of court and sentenced her to jail until she complied with the court’s order. The court stayed execution of the jail sentence until July 7, 2003, in order to give Kay the opportunity to purge herself of contempt by complying with the court’s order. The case was transferred to this court on its own motion pursuant to K.S.A. 20-3018(c). Was the Second Wife a Third-Party Beneficiary of the Agreement Between the Ex-Wife and HusbandP Although the parties raise several issues, we begin our analysis with the one critical to Judy’s ability to recover. Judy, according to her motion, sought intervention in the divorce action “for the purpose of enforcing certain amendments to the Decree of Divorce and Property Settlement Agreement that were to benefit the proposed intervenor.” Judy argues that she was a donee beneficiary (one of three classes of third-party beneficiaries) and the only possible intended beneficiary of Gene and Kay’s agreement. Kay responds that Judy was not an intended beneficiary and has no right to enforce the contract. First we must consider a procedural argument. Judy contends that Kay never raised the defense that Judy was not a third-party beneficiary before the district court, thus she has waived it. This is inaccurate. In Kay’s “Answer in Opposition to Motion of Inter-venor for Judgment Against the Petitioner,” Kay alleged that “any agreement by and between the parties to this divorce did not contemplate provisions for the care and comfort of some future surviving spouse.” Although it appears counsel did not argue the issue during the hearing, Kay also raised the issue in her motion for reconsideration. Thus, we will consider the substance of Kay’s assertion that because Judy was only an incidental beneficiary of the 1985 agree ment between Gene and Kay, she had no standing to bring an action to enforce that agreement. This court gave an extensive recitation of the law regarding third-party beneficiaries in Martin v. Edwards, 219 Kan. 466, 548 P.2d 779 (1976): “Generally, where a person makes a promise to another for the benefit of a third person, that third person may maintain an action to enforce the contract even though he had no knowledge of the contract when it was made and paid no part of the consideration [citations omitted]. But it is not everyone who may benefit from the performance of a contract between two other persons, or who may suffer from its nonperformance, who is permitted to enforce the contract by court action. Beneficiaries of contracts to which they are not parties have been divided into three classes: Donee beneficiaries, creditor beneficiaries and incidental beneficiaries. Only those falling within the first two classes may enforce contracts made for their benefit (17A C.J.S. Contracts § 519(4) b., p. 964; Accord: Burton v. Larkin, [36 Kan. 246, 13 Pac. 398 (1887)]). These third person beneficiaries are defined in 2 Williston on Contracts, 3d ed., § 356, as follows: \ . . (1) Such person is a donee beneficiary if the purpose of the promisee in obtaining the promise of all or part of the performance thereof, is to make a gift to the beneficiary, or to confer upon him a right against the promisor to some performance neither due [nor supposed] or asserted to be due from the promisee to the beneficiary; (2) such person is a creditor beneficiary if no intention to make a gift appears from tire terms of the promise, and performance of the promise will satisfy an actual [or supposed] or asserted duty of the promisee to the beneficiary; (3) such person is an incidental beneficiary if the benefits to him are merely incidental to the performance of the promise and if he is neither a donee beneficiary nor a creditor beneficiary.’ (pp. 824-827.) “(Accord: Restatement of the Law of Contracts, § 133, pp. 151-152. Restatement, Contracts, 2d, Revised Tentative Draft, 1973, § 133, pp. 285-286, divides contract beneficiaries into the classes' — intended and incidental). “The rule respecting incidental beneficiaries is stated in 17 Am. Jur. 2d, Contracts, § 307, as follows: ‘. . . A mere incidental, collateral, or consequential benefit which may accrue to a third person by reason of the performance of contract, or the mere fact that he has been injured by the breach thereof, is not sufficient to enable him to maintain an action on the contract. Where the contract is primarily for the benefit of the parties thereto, the mere fact that a third person would be incidentally benefited does not give him a right to sue for its breach. . . .’ (p. 733.) “Various tests have been used elsewhere in drawing the line between classes ofbeneficiaries. In Burtonv. Larkin, supra, this court held: Tt is not every promise made by one to another from the performance of which a benefit may inure to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited in order to be entitled to sue upon it’ (Syl. para. 3.) (Emphasis supplied.) Under this test a beneficiary can enforce the contract if he is one who the contracting parties intended should receive a direct benefit from the contract [citation omitted]. We think this test is sound and are content to reaffirm it. Contracting parties are presumed to act for themselves and therefore an intent to benefit a third person must be clearly expressed in the contract [citation omitted]. It is not necessary, however, that the third party be the exclusive beneficiary of all the promisor’s performance. The contract may also benefit the contracting parties as well (17 Am. Jur. 2d, Contracts, § 306, pp. 731-732; 17A C.J.S. Contracts § 519[4] £, p. 983). “The determination of the intent of the contracting parties as to rights of a third party beneficiary is a question of construction for the court and the general rules for the construction of contracts apply. The intention of the parties and the meaning of the contract are to be deduced from the instrument where its terms are plain and unambiguous [citation omitted]. However, facts and circumstances surrounding its execution become competent in the event the instrument is ambiguous on its face and requires aid to clarify its intent.” 219 Kan. at 472-74. Kay points out that Judy was not an intended beneficiary because, at the time of the agreement in 1985, Judy was “not even in the picture.” Kay testified that Gene did not know Judy at that time, to her knowledge. According to Kay, the reason Gene wanted to reduce Kay’s survivor benefits was to increase the amount of benefits Gene would receive. Under the federal pension benefit system, the retirement annuity is reduced to allow for a survivor annuity if at the time of retirement the employee is married, unless both parties sign a waiver, or if a former spouse is entitled to the survivor annuity under a divorce decree. 5 U.S.C. § 8339 (2000). Under 5 U.S.C. § 8341(h)(1) (2000), a former spouse of a deceased retiree is entitled to a survivor annuity “if and to the extent expressly provided for . . . in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree.” However, subsection (h)(4) of the same statute further provides: “[A] modification in a decree, order, agreement, or election referred to in paragraph (1) of this subsection shall not be effective — (A) if such modification is made after the retirement or death of the employee or Member concerned, and (B) to the extent that such modification involves an annuity under this subsection.” The Merit Systems Protection Board relied on the above provisions in determining that Kay was entitled to a full survivor annuity. In addition, the Board cited a regulation then in effect, 5 C.F.R. § 831.1704(e) (1989), captioned “Qualifying court orders.” The subject matter of that regulation is now covered by 5 C.F.R. § 838.1004 (2003), which provides in relevant part: “(e)(1) For purposes of awarding, increasing, reducing, or eliminating a former spouse survivor annuity, or explaining, interpreting, or clarifying a court order that awards, increases, reduces or eliminates a former spouse annuity, the court order must be — (i) Issued on a day prior to the date of retirement or date of death of the employee; or (ii) The first order dividing the marital property of the retiree and the former spouse. “(e)(3) In paragraphs (e)(1) and (e)(4) of this section ‘issued’ means actually filed with the clerk of the court, and does not mean the effective date of a retroactive court order that is effective prior to the date when actually filed with the clerk of the court (e.g., a court order issued nunc pro tunc). “(e)(4)(i) In paragraph (e)(l)(ii) of this section, the ‘first order dividing the marital property of the retiree and the former spouse’ means- (A) The original written order that first ends (or first documents an oral order ending) the marriage if the court divides any marital property (or approves a property settlement agreement that divides any marital property) in that order, or in any order issued before that order; or (B) The original written order issued after the marriage has been terminated in which the court first divides any marital property (or first approves a property settlement agreement that divides any marital property) if no marital property has been divided prior to the issuance of that order. (ii) The first order dividing marital property does not include — (A) Any court order that amends, explains, clarifies, or interprets the original written order regardless of the effective date of the court order making the amendment, explanation, clarification, or interpretation; or (B) Any court order issued under reserved jurisdiction or any other court orders issued subsequent to the original written order that divide any marital property regardless of the effective date of the court order.” The language of the above statute and regulation makes clear that OPM correctly applied federal law in determining that the 1990 order purporting to modify Gene and Kay’s original divorce decree and property settlement agreement was not effective to reduce Kay’s survivor annuity because the order was filed after Gene’s retirement in 1989 and the order was not the first order dividing marital property! The parties cite no authority and we find none establishing that OPM would allow an employee to adjust the amount of benefits received by the employee/member or the survivor annuitant. See 5 U.S.C. § 8339(j)(4) (specifying reduction in pension if survivor annuity). But, even if Kay and Gene’s contract was enforceable, the result would have been that Gene would have received more during his lifetime and Kay would have received less as a survivor. This also means that if Judy begins to receive her contingent survivor benefit should Kay remarry or predecease Judy, Judy will receive more than she would have had the survivor benefit been reduced and Gene received a larger retirement benefit. Under these circumstances, Judy is an incidental, rather than an intended, third-party beneficiary of Gene and Kay’s 1985 agreement. As such, she has no ability to enforce that agreement. Although it is mentioned only in passing in Judy’s brief, Judy does point out that the district court made some findings regarding a conversation between Kay, Gene, and Judy in 1995 after Gene’s retirement and marriage to Judy. According to Judy, the three of them had a telephone conversation wherein Kay promised to send Judy the payments Kay received from the government. Kay admitted that the telephone call took place, but did not recall having agreed to share the benefits with Judy. Regarding the conversation, the district court stated: “Certainly, I think it’s more probably true than not that she had the telephone conversation . . . , but whether that happened or not really doesn’t matter. ” (Emphasis added). The court made no findings regarding whether this conversation constituted an enforceable contract, specifically whether there was a meeting of the minds as to the terms of or consideration for the oral agreement. Judy did not ask the district court to make specific findings regarding the alleged oral contract. Nor has Judy presented any argument, either before the district court or on appeal, that the conversation is an alternative basis for the district court’s determination. A point incidentally raised but not argued is deemed abandoned. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 40, 59 P.3d 1003 (2002). Thus, we hold that under the facts of this case, Judy has not established a contract between her and Kay nor one to which she was a third-party beneficiary entitled to enforce the contract. Consequently, we do not reach the other issues raised by the parties regarding whether federal law preempted the court’s order; whether the federal board’s order was binding upon Judy on the basis of estoppel, waiver, laches, or acquiescence; whether Judy’s claim was barred by duress or fraud; whether the statute of limitations had expired; whether equity should be invoked; and whether the district court exceeded its authority in finding Kay in contempt. Reversed.

The opinion of the court was delivered by Gernon, J.: The State Self-Insurance Fund appeals the district court’s decision to disqualify administrative law judge (ALJ) Bruce Moore from this case and any other case in which the claimant is represented by attorney Roger Riedmiller. Lois Sander filed a workers compensation action against the State of Kansas and its insurer, the State Self-Insurance Fund (Fund). ALJ Moore was assigned as the ALJ to hear Sander’s case. During the course of the litigation, Sander has filed three motions to disqualify ALJ Moore. In March 2001, Sander filed her first motion seeking to disqualify ALJ Moore from her case. ALJ Moore denied the motion. Sander then requested the Workers Compensation Board (Board) to review ALJ Moore’s denial and filed a petition to the Director of the Division of Workers Compensation seeking ALJ Moore’s disqualification. Both the Board and the Director denied Sander’s requests to disqualify ALJ Moore. Sander also filed a motion to disqualify ALJ Moore with the Shawnee County District Court, consolidating it with 11 other cases in which Sander’s attorney, Riedmiller, was seeking ALJ Moore’s disqualification. The district court ultimately dismissed the motions for lack of jurisdiction, and the Court of Appeals affirmed the dismissal. Cagle v. Kansas Dept. of Human Resources, No. 88,236, unpublished opinion filed June 14, 2002. Sander filed her second motion to disqualify ALJ Moore in December 2001. After ALJ Moore denied Sander’s motion, Sander sought review of her motion by the Director of the Division of Workers Compensation. The assistant director affirmed ALJ Moore’s denial of Sander’s motion. Sander then sought review by the Board, and the Board affirmed the assistant director’s ruling. Sander appealed the Board’s decision to the Court of Appeals, but her appeal was ultimately dismissed for lack of jurisdiction. In November 2001, the Court of Appeals issued Riedmiller v. Harness, 29 Kan. App. 2d 941, 34 P.3d 474 (2001), rev. denied 273 Kan. 1037 (2002), which involved an earlier attempt by Riedmiller to have ALJ Moore disqualified as the ALJ in one of his cases. In that case, Riedmiller filed a petition for review with the Shawnee County District Court regarding the ALJ’s denial of his motion for disqualification. The district court concluded that it lacked juris diction. 29 Kan. App. 2d at 942. The Riedmiller court affirmed the district court, stating: “Obviously, it would be preferable for the legislature to specifically set out the procedures for seeking the recusal of an ALJ and for appeals from the granting or denying of such motions. However, in the absence of such procedures the Board has the authority under its broad legislative mandate to review decisions of an ALJ granting or denying such motions. Although at this stage in the process, sending the matter back to the Board may frustrate the parties, the remedy lies with the legislature, not the courts.” 29 Kan. App. 2d at 946. In response to Riedmiller, the legislature amended K.S.A. 44-523(e) to establish a procedure for the district court to review an ALJ’s decision regarding disqualification. The new statute became effective on July 1, 2002. L. 2002, ch. 122, sec. 7. Sander filed the third motion to disqualify ALJ Moore immediately before the regular hearing was scheduled on September 4, 2003, without providing any notice to either ALJ Moore or the State and the Fund. After ALJ Moore denied the motion, Sander filed an affidavit with the Ellis County District Court seeking ALJ Moore’s disqualification. The district court concluded that Sander’s affidavit created a reasonable doubt concerning ALJ Moore’s impartiality and ordered that he be disqualified from Sander’s case. The district court stated that “the issue of bias pervades, and is such a distraction that an objective person would could [sic] not help but question the fairness of the entire proceedings.” However, the court denied Sander’s motion to disqualify ALJ Moore from any case in which a claimant is represented by Riedmiller. Sander filed a motion requesting the district court to reconsider its decision regarding the blanket disqualification of ALJ Moore from any of Riedmiller’s cases. The Fund filed a motion to alter or amend the court’s decision to disqualify ALJ Moore from Sander’s case. Upon rehearing, the district court granted Sander’s motion for a blanket disqualification, and the Fund appealed. On August 3, 2004, the Court of Appeals issued an order requiring the parties to brief the issue of whether the appellate courts have jurisdiction. On August 24, 2004, we transferred the case to this court on our own motion pursuant to K.S.A. 20-3018(c). In accordance with the Court of Appeals’ order, both parties briefed the issue of jurisdiction. The right to appeal is purely statutory. Without a statute authorizing an appeal, no appeal is available. Nguyen v. IBP, Inc., 266 Kan. 580, 588, 972 P.2d 747 (1999). An appellate court has a duty to question jurisdiction on its own initiative. If the record demonstrates that there is no jurisdiction for the appeal, the appeal must be dismissed. Cole v. Mayans, 276 Kan. 866, 870, 80 P.3d 384 (2003). The issue of appellate jurisdiction is a question of law over which this court has de novo review. Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, 205, 50 P.3d 66 (2002). The district court’s jurisdiction for disqualifying an ALJ is found in K.S.A. 2003 Supp. 44-523(e), which provides in pertinent part: “(1) ... If the administrative law judge refuses to disqualify the administrative law judge’s self, the party seeking a change of administrative law judge may file in the district court of the county in which the accident occurred the affidavit provided in subsection (e)(2). If an affidavit is to be filed in the district court, it shall be filed within 10 days. “(2) If a party or a party’s attorney files an affidavit alleging any of the grounds specified in subsection (e)(3), the chief judge shall at once determine, or refer the affidavit to another district court judge for prompt determination of, the legal sufficiency of tire affidavit. If the affidavit is filed in a district court in which there is no other judge who is qualified to hear the matter, the chief judge shall at once notify the departmental justice for the district and request the appointment of another district judge to determin[e] the legal sufficiency of the affidavit. If the affidavit is found to be legally sufficient, the district court judge shall order the director to assign tire case to another administrative law judge or to an assistant director.” The plain language of K.S.A. 2003 Supp. 44-523(e) does not provide for an appeal of the district court’s decision to an appellate court. Nevertheless, the Fund argues that this court has jurisdiction pursuant to K.S.A. 60-2101, which provides in pertinent part: “(a) The court of appeals shall have jurisdiction to hear appeals from district courts, except in tiróse cases reviewable by law in the district court and in those cases where a direct appeal to the supreme court is required by law. The court of appeals also shall have jurisdiction to hear appeals from administrative decisions where a statute specifically authorizes an appeal directly to the court of appeals from an administrative body or office. In any case properly before it, the court of appeals shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse. . . . “(b) The supreme court shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court or court of appeals in order to assure that any such act, order or judgment is just, legal and free of abuse. . . . Cases appealed to the court of appeals may be transferred to the supreme court as provided in K.S.A. 20-3016 and 20-3017, and amendments thereto, and any decision of the court of appeals shall be subject to review by the supreme court as provided in subsection (b) of K.S.A. 20-3018, and amendments thereto.” Essentially, the Fund argues that the appellate courts have jurisdiction over any final decision of a district court. However, the plain language of K.S.A. 60-2101 does not support that interpretation. K.S.A. 60-2101 specifically excludes cases that are reviewable by law in the district court and limits appeals from administrative decisions to those situations specifically authorized by statute. Because this case arises from a workers compensation claim, K.S.A. 2003 Supp. 44-556 controls the parties’ right to appeal, providing in pertinent part: “(a) Any action of the board pursuant to the workers compensation act, other than the disposition of appeals of preliminary orders or awards under K.S.A. 44-534a and amendments thereto, shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions by appeal directly to the court of appeals.” (Emphasis added.) K.S.A. 2003 Supp. 44-556 specifically limits the appellate courts to review of decisions of the Board; it does not authorize review of district court decisions. The legislature did not amend K.S.A. 2003 Supp. 44-556 to include a review of the district court’s decisions pursuant to K.S.A. 2003 Supp. 44-523(e). In Jones v. Continental Can Co., 260 Kan. 547, 557, 920 P.2d 939 (1996), this court noted the long-standing rule that the Workers Compensation Act is complete and exclusive and does not incorporate the Code of Civil Procedure unless specifically stated. Because neither K.S.A. 2003 Supp. 44-523(e) nor K.S.A. 2003 Supp. 44-556 incorporate the Code of Civil Procedure, the Fund’s reliance on K.S.A. 60-2101 is misplaced. The Fund argues that appellate courts have previously resorted to the Code of Civil Procedure to resolve workers compensation issues, so the rule of Jones is overbroad. In support of this argument, the Fund cites Bain v. Cormack Enterprises, Inc., 267 Kan. 754, 986 P.2d 373 (1999), and McIntyre v. A.L. Abercrombie, Inc., 23 Kan. App. 2d 204, 929 P.2d 1386 (1996). However, both Bain and McIntyre can be distinguished. Bain and McIntyre apply K.S.A. 2003 Supp. 60-206 in determining how to count the time limitations specified in workers compensation statutes. K.S.A. 2003 • Supp. 60-206(a) provides in pertinent part: “In computing any period of time prescribed or allowed by this chapter, by the local rules of any district court, by order of court, or by any applicable statute . . . .” (Emphasis added.) K.S.A. 2003 Supp. 60-206 is an exception to the general rule against using the Code of Civil Procedure because the phrase “any applicable statute” includes any workers compensation statutes that prescribe a time period, thereby incorporating them into 60-206. The Fund also cites Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975), to support its argument. The Olathe Hospital Foundation case involved a decision by the Mid-America Comprehensive Health Planning Agency (MACHPA), an administrative agency designated by the Kansas Department of Health, regarding the issuance of a certificate of need to build a hospital. MACHPA’s decision was appealed to an agency appellate panel, then to the district court pursuant to statutory authority, and then to the Kansas Supreme Court. Because the statutoiy authority did not provide for an appeal beyond the district court, Extendicare argued that the Kansas Supreme Court did not have jurisdiction for the appeal. The Olathe Hospital Foundation court held that the Kansas Supreme Court had jurisdiction to review the district court’s decision pursuant to K.S.A. 60-2101, regardless of the lack of statutory authority within the certificate of need legislation. 217 Kan. at 551. However, Olathe Hospital Foundation is not on point. It does not address the appellate jurisdiction for workers compensation appeals or the changes to the Workers Compensation Act since 1975. Jones, however, is directly on point, addressing both appellate jurisdiction for workers compensation cases and the legislative amendments to the Workers Compensation Act since 1975. The legislature has not amended the Workers Compensation Act to invalidate Jones. Thus, Jones is controlling, not Olathe Hospital Foundation. K.S.A. 2003 Supp. 44-523(e) does not provide any authority for a review of the district court’s disqualification decision, and such a decision is not included in K.S.A. 2003 Supp. 44-556. Neither K.S.A. 2003 Supp. 44-523(e) nor K.S.A. 2003 Supp. 44-556 refer to the Code of Civil Procedure, so K.S.A. 60-2101 is not applicable to establish appellate jurisdiction. Consequently, this court does not have jurisdiction to hear the Fund’s appeal. Appeal dismissed.

The opinion of the court was delivered by Beier, J.: Benny Ray Smith was convicted of premeditated first-degree murder and sentenced to life in prison. This is his direct appeal. We affirm. Smith’s conviction arose out of the shooting death of Michelle Scott. Evidence presented at trial demonstrated that Scott was shot in the head at close range. The entrance wound was behind her left ear. Smith lived with Scott and her 12-year-old son. Smith kept his gun under the bed in the bedroom he shared with Scott. On the evening of the shooting, Smith, Scott, and a friend, Judy Perry, were drinking alcohol and smoking crack cocaine in that bedroom. Smith and Scott left the bedroom, and there were different versions of the events that followed. Perry testified that Smith and Scott were not arguing when they left the bedroom. She heard Scott’s body hit the ground but did not hear a gunshot. After she heard Scott fall, Scott’s son told Perry: “I think he done shot my mama . . . She done fell on the ground.” Smith was gone. After a few moments, the boy called 911. The boy testified that he woke up to the sound of Smith and Scott screaming at each other. He went to the door of his bedroom but could not see them. He could see Perry. He returned to his bed and heard Smith say twice, “I’m going to shoot you.” He said he then saw Smith look under the bed in the adults’ bedroom and walk toward the living room. The boy heard a gunshot and his mother’s body fall. As he went to call 911, he heard a screen door shut. Smith testified that, on the night of the shooting, Scott had learned a nearby drug bust was being blamed on her. She had seen a strange car in front of the house, and she told Smith to get his gun because she was nervous. He therefore put the gun in his pants. Smith said Perry started to yell for Scott to bring a pipe to her. When Smith gave Perry a pipe off of the floor, Scott became upset; and Smith decided to leave to avoid an argument. He walked onto the front porch to see if the strange car was still there. When he turned to reenter the house to get some clothes, Scott tried to grab the gun from his pants. Smith continued: “I had her wrist like this (indicating) trying to get it out, and I had on the stretch pants. I dropped my pants down like this (indicating) to get it out, and we was tussling with the gun. I had her wrist most of the time. She had her hand on the grip of the gun and stuff. We tussled like that for a bit. I kept saying to myself, 'Get the clip out. Get the clip out.’ When I got the clip, I knew when it hit the porch. . . . [S]he quits fighting. I’m leaning up against the storm door. She brushed past me . . . and she walked in the living room, and she just fell down, collapsed. ... I don’t know if she hit her head or what. ... I just left.” Smith went to Namon Battle’s house. Battle would not let Smith in. Smith then went to Charlie’s Loudermilk’s house, leaving the gun in Battle’s front yard. When Smith arrived at Loudermilk’s house, he said, “I think I shot her.” Scott’s son gave the police Battle’s address. When they arrived, Battle informed the police that Smith might be at Loudermilk’s house. Loudermilk let the police into his house, and they saw a man lying on a couch who fit the description of Smith given to them by Scott’s son. When the police asked the man to identify himself, he said his name was “Rodriguez.” When Loudermilk correctly identified the man as Smith, the police placed Smith under arrest. They photographed Smith in jail clothing, and the photographs were later used at trial to show that Smith had not sustained injuries to his hands, neck, or face when he struggled with Scott. The gun was recovered from Battle’s yard and examined. One officer testified that blood and hair were on the gun. Another officer testified that there was a crack on the magazine of the gun and that it took 7.8 pounds of pressure to pull its trigger. The medical examiner testified that she found it “highly improbable that [Scott’s] contact gunshot wound occurred during a struggle.” Scott also had sustained other injuries, including a laceration on her forehead consistent with the length of the gun’s magazine, bruises on her head and lips, and “defensive” wounds on her hand and arm. In an interview with police, Battle stated he had seen Smith’s gun in the past. Battle said Smith had asked him to hold the gun because Smith was in trouble for having fired it at someone. Scott’s son also had been interviewed by police. At first he claimed that he saw Smith put the gun to the back of Scott’s head. He later admitted he had not seen the shooting. Scott’s son also told police that Smith had fired the gun in the past. Before trial, Smith requested discovery of records from the Kansas Department of Social and Rehabilitation Services (SRS) regarding Scott and her son. The district court denied the request, holding Smith had not demonstrated the records’ relevance. During voir dire, Smith made a Batson challenge to one of the State’s peremptory strikes. See Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The prosecutor stated the juror was struck because she was unmarried, not because of her race, noting the State was “interested in having someone who has at least been in a . . . long-term relationship.” The prosecutor also pointed out that she and the defense had each struck other single venire members and that two African-Americans remained on the jury. The district court rejected Smith’s Batson challenge. Issues in Appellate Counsel’s Brief Smith’s original appellate counsel briefed 11 issues for our consideration. That lawyer was later permitted to withdraw. After two replacements also withdrew, the lawyer ultimately appointed to represent Smith appeared at oral argument and said she had been specifically instructed by her client to argue none of the issues briefed by original appellate counsel and to focus only on issues raised in Smith’s pro se supplemental brief. Although we would generally discourage such a course of action on the part of a criminal defendant, Smith’s explicit abandonment of the 11 issues briefed by his first lawyer caused him no legal prejudice in the unique circumstances of this case. None would have led to reversal. Despite the abandonment, the gravity of Smith’s crime and the likelihood that he will pursue future collateral challenges to his conviction prompts us to address each of the 11 issues briefly in the following list. (1) The district court did not abuse its discretion by refusing to allow discoveiy of SRS records on Scott and her son. Smith demonstrated no link between the likely content of the records and his trial claim of self-defense. A reasonable person could easily have taken the position of the district court. See State v. Kessler, 276 Kan. 202, 212, 73 P.3d 761 (2003) (district court’s ruling on discovery subject to abuse of discretion standard; such discretion abused “only when no reasonable person would take the view adopted by the trial court”). (2) The district court did not abuse its discretion in rejecting Smith’s Batson challenge. See State v. Bradford, 272 Kan. 523, 529, 34 P.3d 434 (2001). A reasonable person could agree with the district judge’s conclusions that the prosecutor met her burden of articulating a race-neutral reason for striking the juror and that Smith failed to establish purposeful discrimination. See Batson, 476 U.S. at 98. Moreover, this court has upheld similar strikes in the past. See State v. Caenen, 270 Kan. 776, 790, 19 P.3d 142 (2001) (.Batson challenge fails; potential juror struck because “he was a single man with ‘limited, little or no contact’ with children,” not because he was African-American); State v. Gadelkarim, 256 Kan. 671, 691-92, 887 P.2d 88 (1994) (prosecution argues strike supported by juror s unmarried status and inattention; all other single jurors struck; Batson challenge fails). (3) The district court did not abuse its discretion in admitting the photographs of Smith in jail clothing. The photographs constituted direct evidence of whether Smith had visible injuries at the time of his arrest, evidence relevant to his account of the scuffle over the gun and his claim of self-defense. A reasonable person could conclude, as the district court did, that the substantial probative value of this evidence outweighed any minimal prejudicial effect generated by Smith’s attire at the time the photographs were taken. We agree with the district judge that most jurors would hardly be shocked to learn that a murder suspect was taken into custody for some period of time, the only information communicated by jail clothing. (4) Smith’s argument that the district court erred in permitting evidence of Battle’s and Scott’s son’s statements about an earlier incident in which Smith fired his gun also has no merit. There was no objection to the evidence of Battle’s statement; Smith introduced the statement of Scott’s son, thereby inviting any error; and neither mention of the incident was covered by the wording of a pretrial motion in limine. (5) There was no error in permitting the medical examiner to characterize certain of Scott’s wounds as “defensive.” The admission of expert testimony lies within the sound discretion of the trial court. Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934 (2001). The prosecutor laid the necessary foundation for the doctor’s testimony. The doctor thoroughly explained her education, background, and teaching experience. She also explained why defensive wounds would occur on the areas of the body where they appeared on Scott. (6) The district court also did not abuse its discretion by excluding evidence from the medical examiner regarding the amount of cocaine and alcohol in Scott’s body and the re action or behavior such an amount would have caused. A reasonable person could agree with the district court that, because the effects of alcohol and drugs are highly individual, and because the medical examiner had no personal knowledge of Scott’s particular reactions on the night of her death or at any other time, the testimony Smith sought would have been speculative and irrelevant. (7) The district court did not err in refusing Smith’s request for a voluntary intoxication instruction. The instruction would have been legally inconsistent with Smith’s self-defense claim and factually inconsistent with his detailed recollection of the evening’s events. (8) Smith’s argument that the evidence was insufficient to convict him of premeditated first-degree murder also fails. We will not reweigh the credibility of Scott’s son on appeal. The jury heard his trial testimony and learned of the inconsistencies between that testimony and his interview with police. It was the jury’s function to pass on that credibility, including whether he heard Smith announce his intention to shoot Scott. See State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000). If that testimony is accepted as true, as our standard of review requires, it is plain the juiy had ample evidence to support its finding of premeditation. See State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). (“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.”). (9) The district court did not err in giving an instruction dealing with an aggressor’s right to claim self-defense. Some evidence of provocation is enough to support the instruction. See State v. Adam, 257 Kan. 693, 702-03, 896 P.2d 1022 (1995) (instruction justified although evidence of provocation by defendant slim); State v. Hunt, 257 Kan. 388, 394, 894 P.2d 178 (1995) (“question of whether the defendant was an aggressor was one for the jury”); State v. Beard, 220 Kan. 580, 582, 552 P.2d 900 (1976) (“[whether defendant was an aggressor remained a question for the jury”). Here, one version of events would have supported a finding that Smith retrieved his gun when he became angry with Scott. This justified the instruction given. (10) The district court did not err in holding it lacked jurisdiction to rule on Smith’s posttrial motions. Once Smith’s appeal was docketed, the district court lost jurisdiction to hear them. See State v. Dedman, 230 Kan. 793, Syl. ¶ 2, 640 P.2d 1266 (1982). No motion for remand to the district court had been filed. (11) Because we find no error, Smith is not entitled to reversal for cumulative error. We now turn to what we understand to be three additional issues Smith raises in his pro se brief. Smith first contends that there was no probable cause for his arrest. This claim is without merit. Scott’s son gave officers Smith’s name and a description of his appearance and clothing. Scott’s son also gave the officers Battle’s address, where Smith might be found. Battle, in turn, directed the officers to Loudermilk’s house, where they saw a man who matched Smith’s description. Loudermilkthen identified that man as Smith. Given the step-by-step strength of this evidence, it is no surprise that Smith’s counsel did not bother to raise this issue before the district court or this court. Smith next contends the State conspired against him because (1) law enforcement officers improperly coached Scott’s son; (2) the prosecutor used trick photography to claim that the bullet entered from the back of Scott’s head; (3) the medical examiner lied to support the State’s case; (4) the record and transcripts of his trial were changed; and (5) his appointed counsel is subversively working for the State. We find absolutely no support in the record for any of these claims and therefore hold that they neither individually nor collectively entitle Smith to relief. Third, Smith claims that his first appellate attorney provided ineffective assistance of counsel. To establish ineffective assistance of counsel on appeal, defendant must show “(1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced to the extent that there is a reasonable probability that, but for counsel’s deficient performance, the appeal would have been successful.” Baker v. State, 243 Kan. 1, 7, 755 P.2d 493 (1988); accord Maggard v. State, 27 Kan. App. 2d 1060, 1065, 11 P.3d 89, rev. denied 270 Kan. 899 (2000). Defendant argues his attorney sabotaged his brief, claiming he helped the State cover up alterations to the record and “left [hidden] messages that support the he the [S]tate is telling.” Again, Smith has no support for his claim. It was not counsel’s deficient or stellar performance that dictated the outcome in this appeal. It was the lack of quality of the issues available for argument. Finally, Smith has also filed a “Motion For An Order For The State To Show Cause Why All Charges Shouldn’t Be Dismissed.” For all of the reasons detailed above, the motion is hereby denied. Conviction and sentence affirmed; Motion For An Order For The State To Show Cause Why All Charges Shouldn’t Be Dismissed denied.

Ver Curiam,-. The defendants in this case, the State of Kansas (appellant/cross-appellee) along with Janet Waugh, Sue Gamble, John Bacon, Bill Wagnon, Connie Morris, Bruce Wyatt, Kenneth Willard, Carol Rupe, Iris Van Meter, Steve Abrams and Andy Tompkins (the State Board of Education related defendants) (appellants/cross-appellees) appeal from a decision of the district court holding that the Kansas School District Finance and Quality Performance Act (SDFQPA), K.S.A. 72-6405 et seq., is unconstitutional. The plaintiffs in this case, U.S.D. No. 305 (Salina) and U.S.D. No. 443 (Dodge City), along with 36 individually named students in those districts, cross-appeal from the district court’s determination that the legislature did not abrogate the constitutional obligations of the State Board of Education. The constitutionality of the statutory scheme for funding the public schools in Kansas is at issue in this appeal. Because this court’s resolution of this issue will have statewide effect and require legislative action in the 2005 legislative session, we announce our decision in this brief opinion. A formal opinion will be filed at a later date. After examining the record and giving full and complete consideration to the arguments raised in this appeal, we resolve the issue as follows: 1. We reverse the district court’s holding that SDFQPA’s financing formula is a violation of equal protection. Although the district court correctly determined that the rational basis test was the proper level of scrutiny, it misapplied that test. We conclude that all of the funding differentials as provided by the SDFQPA are rationally related to a legitimate legislative purpose. Thus, the SDFQPA does not violate the Equal Protection Clause of the Kansas or United States Constitutions. 2. We also reverse the district court’s holding that the SDFQPA financing formula has an unconstitutional disparate impact on minorities and/or other classes. In order to establish an equal protection violation on this basis, one must show not only that there is a disparate impact, but also that the impact can be traced to a discriminatory purpose. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979). No discriminatory purpose was shown by the plaintiffs. Thus, the SDFQPA is not unconstitutional based solely on its “disparate impact.” 3. We affirm the district court’s holding that the legislature has failed to meet its burden as imposed by Art. 6, § 6 of the Kansas Constitution to “make suitable provision for finance” of the public schools. The district court reached this conclusion after an 8-day bench trial which resulted in a record of approximately 1,400 pages of transcript and 9,600 pages of exhibits. Most of the witnesses were experts in the fields of primary and secondary education. The trial followed this court’s decision in Montoy v. State, 275 Kan. 145, 152-53, 62 P.3d 228 (2003) (Montoy I), in which we held, in part, that the issue of suitability was not resolved by U.S.D. No. 229 v. State, 256 Kan. 232, 885 P.2d 1170 (1994), cert. denied 515 U.S. 1144 (1995). We had held in U.S.D. No. 229 that the SDFQPA as originally adopted in 1992 made suitable provision for the finance of public education. See 256 Kan. at 254-59. Later, in Montoy I, we noted that the issue of suitability is not stagnant but requires constant monitoring. See 275 Kan. at 153. Following the trial, the district court made findings regarding the various statutory and societal changes which occurred after the decision in U.S.D. No. 229 and affected school funding. Regarding societal changes, the district court found: (1) 36% of Kansas public school students now qualify for free or reduced-price lunches; (2) the number of students with limited proficiency in English has increased dramatically; (3) the number of immigrants has increased dramatically; and (4) state institutions of higher learning now use more rigorous admission standards. Additionally, the district court found a number of statutory changes made after the decision in U.S.D. No. 229 which affected the way the financing formula delivers funds: (1) the goals set out in K.S.A. 72-6439(a) were removed; (2) the SDFQPA’s provision requiring an oversight committee to ensure fair and equitable funding was allowed to expire; (3) the low enrollment weighting was changed; (4) correlation weighting was added; (5) at-risk pupil weighting was changed; (6) the mill levy was decreased from 35 mills to 20 mills; (7) a $20,000 exemption for residential property was added to the mill levy, also decreasing revenue; (8) a new facilities weighting was added; (9) special education funds were added to the calculation to increase the base on which die local option budget funding was calculated; (10) ancillary weighting was added; (11) the cap on capital outlay authority was removed; and (12) most special education funds were limited to reimbursement for 85 percent of the costs incurred in hiring special education teachers and paraprofessionals. Our standard of review requires us to determine whether the district court made findings of fact which are supported by substantial competent evidence and are sufficient to support the conclusions of law. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 12, 61 P.3d 68 (2002). We conclude that the district court’s findings regarding the societal and legislative changes are supported by substantial competent evidence. The plaintiffs argued and the district court found that the cumulative result of these changes is a financing formula which does not make suitable provision for finance of public schools, leaving them inadequately funded. Before determining whether there is substantial competent evidence to support these findings, we must examine the standard for determining whether the current version of the SDFQPA makes suitable provision for the finance of public school education. The concept of “suitable provision for finance” encompasses many aspects. First and perhaps foremost it must reflect a level of funding which meets the constitutional requirement that “[t]he legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools . . . .” (Emphasis added.) Kan. Const, art. 6, § 1. The Kansas Constitution thus imposes a mandate that our educational system cannot be static or regressive but must be one which “advance[s] to a better quality or state.” See Webster’s II New College Dictionary 557 (1999) (defining “improve”). In apparent recognition of this concept, the legislature incorporated performance levels and standards into the SDFQPA and, although repealing the 10 goals which served as the foundation for measuring suitability in the U. S.D. No. 229 decision, has retained a provision which requires the State Board of Education to design and adopt a school performance accreditation system “based upon improvement in performance that reflects high academic standards and is measurable.” K.S.A. 72-6439(a). Moreover, the legislature mandated standards for individual and school performance levels “the achievement of which represents excellence in the academic area at the grade level to which the assessment applies.” K.S.A. 72-6439(c). Through these provisions, the legislature has imposed criteria for determining whether it has made suitable provision for the finance of education: Do the schools meet the accreditation requirements and are students achieving an “improvement in performance that reflects high academic standards and is measurable”? K.S.A. 72-6439(a). These student performance accreditation measures were utilized in 2001 when the legislature directed that a professional evaluation be performed to determine the costs of a suitable education for Kansas school children. In authorizing the study, the legislature defined “suitable education.” K.S.A. 2003 Supp. 46-1225(e). The Legislative Education Planning Committee (LEPC), to whom the task of overseeing the study was delegated, determined which performance measures would be utilized in determining if Kansas’ school children were receiving a suitable education. The evaluation, performed by Augenblick & Myers, utilized the criteria established by the LEPC, and, in part, examined whether the current financing formula and funding levels were adequate for schools to meet accreditation standards and performance criteria. The study concluded that both the formula and funding levels were inadequate to provide what the legislature had defined as a suitable education. Although in Montoy I, 275 Kan. at 153-55, we concluded that accreditation standards may not always adequately define a suitable education, our examination of the extensive record in this case leads us to conclude that we need look no further than the legislature’s own definition of suitable education to determine that the standard is not being met under the current financing formula. Within that record there is substantial competent evidence, including the Augenblick & Myers study, establishing that a suitable education, as that term is defined by the legislature, is not being provided. In particular, the plaintiff school districts (Salina and Dodge City) established that the SDFQPA fails to provide adequate funding for a suitable education for students of their and other similarly situated districts, i.e., middle-and large-sized districts with a high proportion of minority and/or at-risk and special education students. Additional evidence of the inadequacy of the funding is found in the fact that, while the original intent of the provision for local option budgets within the financing formula was to fund “extra” expenses, some school districts have been forced to use local option budgets to finance general education. Furthermore, in determining if the legislature has made suitable provision for the finance of public education, there are other factors to be considered in addition to whether students are provided a suitable education. Specifically, the district court found that the financing formula was not based upon actual costs to educate children but was instead based on former spending levels and political compromise. This failure to do any cost analysis distorted the low enrollment, special education, vocational, bilingual education, and the at-risk student weighting factors. Thus, there is substantial competent evidence to support the district court’s findings discussed above. These findings are sufficient to support the conclusion that the legislature has failed to “make suitable provision for finance” of the public school system as required by Art. 6, § 6 of the Kansas Constitution. 4. As to the cross-appeal, we affirm the district court’s holding that the legislature has not usurped the powers of the State Board of Education. In addressing the appropriate remedy, as the district court noted, there are “literally hundreds of ways” the financing formula can be altered to comply with Art. 6, § 6. Similarly, there are many ways to re-create or reestablish a suitable financing formula. We do not dictate the precise way in which the legislature must fulfill its constitutional duty. That is for the legislators to decide, consistent with the Kansas Constitution. It is clear increased funding will be required; however, increased funding may not in and of itself make the financing formula constitutionally suitable. The equity with which the funds are distributed and the actual costs of education, including appropriate levels of administrative costs, are critical factors for the legislature to consider in achieving a suitable formula for financing education. By contrast, the present financing formula increases disparities in funding, not based on a cost analysis, but rather on political and other factors not relevant to education. We are aware that our decision (1) raises questions about continuing the present financing formula pending corrective action by the legislature; (2) could have the potential to disrupt the public schools; and (3) requires the legislature to act expeditiously to provide constitutionally suitable financing for the public school system. Accordingly, at this time we do not remand this case to the district court or consider a final remedy, but instead we will retain jurisdiction and stay all further proceedings to allow the legislature a reasonable time to correct the constitutional infirmity in the present financing formula. In the meantime, the present financing formula and funding will remain in effect until further order of this court. We have in this brief opinion endeavored to identify problem areas in the present formula as well as legislative changes in the immediate past that have contributed to the present funding deficiencies. We have done so in order that the legislature take steps it deems necessary to fulfill its constitutional responsibility. Its failure to act in the face of this opinion would require this court to direct action to be taken to carry out that responsibility. We believe further court action at this time would not be in the best interests of the school children of this state. The legislature, by its action or lack thereof in the 2005 session, will dictate what form our final remedy, if necessary, will take. To ensure the legislature complies with our holding, we will withhold our formal opinion until corrective legislation has been enacted or April 12, 2005, whichever occurs first, and stay the issuance of our mandate in this case. Affirmed in part and reversed in part. Beier, J., concurring: I concur fully in the court’s result and in the bulk of its rationale. I write separately only because I disagree with the holding of U.S.D. No. 229 v. State, 256 Kan. 232, 260-63, 885 P.2d 1170 (1994), that education is not a fundamental right under the Kansas Constitution. I believe it is. Thus I would not, as the court implicitly did on its way to the opinion in this case, rely on U.S.D. No. 229 to conclude that the Kansas school financing formula under SDFQAA did not violate the Equal Protection Clauses of the federal and state Constitutions. Rather, I would take the opportunity presented by this case to overrule the U.S.D. No. 229 holding on the status of the right to education under the Kansas Constitution. In San Antonio School District v. Rodriguez, 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278, reh. denied 411 U.S. 959 (1973), the United States Supreme Court held that education is not a funda mental right under the United States Constitution. In reaching this conclusion, the Court stated: “[T]he key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.” 411 U.S. at 33-34. Article 6, § 1 of our state constitution reads: “The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities.” (Emphasis added.) Article 6, § 6 provides: “The legislature shall make suitable provision for finance of the educational interests of the state.” (Emphasis added.) If we were to apply the United States Supreme Court’s straightforward pattern of analysis from Rodriguez, we would need to look no further than the mandatory language of these two constitutional provisions. Because they explicitly provide for education, education is a fundamental right. It is certainly true, however, that our sister states, when faced with the question of whether their own constitutions make education a fundamental right, have not always been satisfied with the Rodriguez approach. For example, in Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005, 1017 (Colo. 1982), the Colorado Supreme Court stated: “While the [Rodriguez] test may be applicable in determining fundamental rights under the United States Constitution, it has no applicability in determining fundamental rights under the Colorado Constitution. This is so because of the basic and inherently different natures of the two constitutions .... [Footnote omitted.] “The United States Constitution is one of restricted authority and delegated powers. As provided in the Tenth Amendment, all powers not granted to the United States by the Constitution, nor denied to the States by it, are reserved to the States or to the People. [Citations omitted.] “Conversely, the Colorado Constitution is not one of limited powers where the state’s authority is restricted to the four comers of the document. [Citation omitted.] The Colorado Constitution does not restrict itself to addressing only those areas deemed fundamental. Rather, it contains provisions which are . . . suited for statutory enactment . . . as well as those deemed fundamental to our concept of ordered liberty .... Thus, under the Colorado Constitution, fundamental rights are not necessarily determined by whether they are guaranteed explicitly or implicitly within the document.” Several other states also have rejected Rodriguez as the test for whether their state constitutional provisions on education demand recognition of a fundamental right. See Serrano v. Priest (Serrano II), 18 Cal. 3d 728, 766-67, 135 Cal. Rptr. 345, 557 P.2d 929 (1976) (refusing to be constrained by whether rights and interests are explicitly or implicitly guaranteed by state constitution), cert. denied 432 U.S. 907 (1977); McDaniel v. Thomas, 248 Ga. 632, 646, 285 S.E.2d 156 (1981) (“explicit or implicit” guarantee model lacks meaningful limitation under state constitution); Thompson v. Engelking, 96 Idaho 793, 803-05, 537 P.2d 635 (1975) (rejecting categorization of “fundamental” versus “non-fundamental” rights); Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 650, 458 A.2d 758 (1983) (state constitution explicitly guarantees rights and interests not considered “fundamental”); Bd. of Edn. v. Walter, 58 Ohio St. 2d 368, 375, 390 N.E.2d 813 (1979) (state constitution not limited in power and contains provisions suitable for statutory enactment), cert. denied 444 U.S. 1015 (1980); Fair Sch. Finance Coun. v. State of Okla., 746 P.2d 1135, 1149 (Okla. 1987) (fundamental rights not necessarily determined by inclusion in state constitution); Olsen ex rel. Johnson v. State, 276 Or. 9, 19-20, 554 P.2d 139 (1976) (laws considered to be legislation included in state constitution; thus Rodriguez’ method weak); see also Dayton, Serrano and its Progeny: An Analysis of 30 Years of School Funding Litigation, 157 Ed. Law. Rep. 447, 453 (2001) (most states reject Rodriguez test to determine existence of state constitutional right to education). In such states, Rodriguez’ simple search for explicit or implicit recognition of a fundamental right to education in a constitution’s language gives way to a variety of other patterns of analysis. For example, certain interests are deemed fundamental in California “because of their impact on those individual rights and liberties which lie at the core of our free and representative form of government.” Serrano II, 18 Cal. 3d at 767-68. At this point in time, courts in 15 states — Alabama, California, Connecticut, Kentucky, Minnesota, New Hampshire, New Jersey, North Carolina, North Dakota, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming — appear to have recognized a fundamental right to education under their constitutions, employing various patterns of analysis. See Opinion of the Justices, 624 So. 2d 107, 157 (Ala. 1993) (advisory opinion) (“[T]he right to education in Alabama is fundamental” and implicitly guaranteed by the state constitution); Serrano v. Priest (Serrano I), 5 Cal. 3d 584, 608-09, 96 Cal. Rptr. 601, 487 P.2d 1241 (1971) (“[T]he distinctive and priceless function of education in our society warrants, indeed compels, our treating it as a ‘fundamental interest.’ ”); Horton v. Meskill (Horton I), 172 Conn. 615, 646, 376 A.2d 359 (1977) (state constitution specifically recognizes right to education; this right is “basic and fundamental”); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 206 (Ky. 1989) (framers of state constitution emphasized education as essential to welfare of citizens of Kentucky); Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993) (“[W]e hold that education is a fundamental right under the state constitution, not only because of its overall importance to the state but also because of the explicit language used to describe this constitutional mandate.”); Claremont School Dist. v. Governor, 142 N.H. 462, 473, 703 A.2d 1353 (1997) (“[E]ven a minimalist view of educational adequacy recognizes the role of education in preparing citizens to participate in die exercise of voting and first amendment rights. The latter being recognized as fundamental, it is illogical to place the means to exercise those rights on less substantial constitutional footing than the rights themselves.”); Robinson v. Cahill, 69 N.J. 133, 147, 351 A.2d 713 (1975) (“[T]he right of children to a thorough and efficient system of education is a fundamental right.”), cert. denied sub nom. Klein v. Robinson, 423 U.S. 913 (1975); Leandro v. State of North Carolina, 346 N.C. 336, 348, 488 S.E.2d 249 (1997) (“[T]he intent of the framers [of the state constitution] was that eveiy child have a fundamental right to a sound basic education which would prepare the child to participate fully in society as it existed in his or her lifetime.”); Bismarck Public School Dist. 1 v. State, 511 N.W.2d 247, 256 (N.D. 1994) (“The parties agree that the right to education is a fundamental right under the North Dakota Constitution.”); Brigham v. State, 166 Vt. 246, 262, 692 A.2d 384 (1997) (emphasizing importance of education to self-government and state’s duty to ensure' proper dispersion); Scott v. Commonwealth, 247 Va. 379, 386, 443 S.E.2d 138 (1994) (finding state constitution’s language clear and unambiguous; state should assure opportunity for fullest development through education); Seattle School Dist. v. State, 90 Wash. 2d 476, 511, 585 P.2d 71 (1978) (“The [state constitution’s] singular use of the term paramount duty,’ when taken together with its plain English meaning, is [a] clear indication of the constitutional importance attached to the public education of the State’s children.”); Pauley v. Kelly, 162 W. Va. 672, 707, 255 S.E.2d 859 (1979) (finding education is fundamental right under state constitution’s mandatory requirement of “thorough and efficient system of free schools”); Kukor v. Grover, 148 Wis. 2d 469, 496, 436. N.W.2d 568 (1989) (“ ‘[E]qual opportunity for education’ is a fundamental right,” as emphasized by Wisconsin’s case law and legislature’s involvement); Washakie Co. Sch. Dist. No. One v. Herschler, 606 P.2d 310, 333 (Wyo. 1980) (“In light of the emphasis which the Wyoming Constitution places on education, there is no room for any conclusion but that education for the children of Wyoming is a matter of fundamental interest.”), cert. denied 449 U.S. 824 (1980). Meanwhile, six states — Colorado, Georgia, Idaho, Maryland, New York, and Ohio — have rejected, arguments that their state constitutions establish education as a fundamental right. See Lujan, 649 P.2d at 1017 (noting Colorado Constitution not restricted to areas deemed fundamental; on its face, does not establish education as fundamental right); Levittown UFSD v. Nyquist, 57 N.Y.2d 27, 43, 453 N.Y.S.2d 643, 439 N.E.2d 359 (1982) (The state constitution “does not automatically entitle [education] to classification as a ‘fundamental constitutional right’ triggering a higher standard of judicial review for purposes of equal protection analysis.”); Bd. of Edn., 58 Ohio St. 2d at 374 (rejecting the Rodriguez analysis which would have established education as a fundamental right under Ohio’s constitution); Hornbeck, 295 Md. at 649 (“[Ejducation ‘can be a major factor in an individual’s chances for economic and social success as well as a unique influence on a child’s development as a good citizen and on his future participation in political and community life.’ [Citation omitted.] Nevertheless, we conclude that education is not a fundamental right for purposes of equal protection analysis.”); McDaniel, 248 Ga. at 647 (noting complexity of school financing and management, remaining consistent with Rodriguez, and holding education “per se” not fundamental right); Thompson, 96 Idaho at 805 (refusing to classify right to education as fundamental; holding schemes for school funding unconstitutional could negatively affect funding for other local services). The exact nature of any right to education under the Oklahoma Constitution is currently unclear. See Fair Sch. Finance Coun., 746 P.2d at 1149-50 (Okla. 1987) (Even “[assuming that education is a fundamental interest, the question remains as to what is the exact nature of the interest guaranteed. . . . We find no authority to support the plaintiffs’ contention that the school finance system should be subjected to strict judicial scrutiny.”). The status of any right in Arizona also is unclear at this time. See Shofstall v. Hollings, 110 Ariz. 88, 90, 515 P.2d 590 (1973) (“We hold that the [state] constitution does establish education as a fundamental right of pupils between the ages six and twenty-one years.”); but see Roosevelt Elem. School Dist. No. 66 v. Rishop, 179 Ariz. 233, 238, 877 P.2d 806 (1994) (“We do not understand how the rational basis test can be used when a fundamental right has been implicated. ... If education is a fundamental right, the compelling state interest test [strict scrutiny] ought to apply. . . . [I]f the rational basis test properly applies, education is not a fundamental right.”). Those courts that recognize a fundamental right to education under their state constitutions also vary on the extent to which they permit the right’s status to strengthen judicial review of specific legislative enactments. Some apply strict scrutiny when they review statutes on school funding. See, e.g., Serrano I, 5 Cal. 3d 584 (state funding scheme invidiously discriminates against poor; no compelling state purpose necessitates state’s inequitable method of financing education); Scott v. Commonwealth, 247 Va. 379, 386, 443 S.E.2d 138 (1994) (state’s system of funding withstands strict scru tiny). But others reserve strict scrutiny for equity challenges to statutory schemes that constitute a denial of the fundamental right to education; they employ a more forgiving standard of review when their focus is on legislative mechanisms to fund exercise of the right. See Skeen, 505 N.W.2d at 315-16 (strict scrutiny applies when offered education falls below “adequacy” level; otherwise, Minnesota applies rational basis standard); Bismarck Public School Dist. 1, 511 N.W.2d at 257 (North Dakota applies intermediate scrutiny); Kukor, 148 Wis. 2d at 498 (Wisconsin applies rational basis standard); see also Horton v. Meskill, (Horton II), 195 Conn. 24, 35-38, 486 A.2d 1099 (1985) (Connecticut adopts three-part analysis for school funding; educational funding “in significant aspects sui generis”); Seattle School Dist., 90 Wash. 2d at 518 (although education “paramount duty,” means of discharging duty left to legislature). In Bismarck Public School Dist. 1, 511 N.W.2d 247, the North Dakota Supreme Court held that a fundamental right to education existed under the state constitution. The court declined, however, to adopt strict scrutiny for decisions involving the financing of the educational system. Instead, the court adopted intermediate scrutiny in order to strike a balance between flexibility needed in finance decisions and the importance of the right. 511 N.W.2d at 257-59. In Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993), the Minnesota Supreme Court found that a fundamental right to education existed because of education’s overall importance to the state and an explicit provision in the state constitution mandating a duty to “establish a ‘general and uniform system’ of education.” The court concluded that strict scrutiny should apply only to challenges to adequacy and uniformity in funding the school system, but that particular funding mechanisms should be reviewed under the rational basis standard. 505 N.W.2d at 315-16. The court noted that the state constitution used only the word “shall” in the section describing financing, while the “duty of the legislature” language was used in the section addressing establishment of schools. 505 N.W.2d at 315 n.9. Further, the court stated: “Because the state constitution does not require strict economic equality under the equal protection clause, it cannot be said that there is a ‘fundamental right’ to any particular funding scheme . . . 505 N.W.2d at 315. In Kukor v. Grover, 148 Wis. 2d 469, 496, 436 N.W.2d 568 (1989), the Wisconsin Supreme Court concluded that “ ‘equal opportunity for education’ is a fundamental right” but concluded that absolute equality in financing was not required. The court noted that the equalization system at issue actually exceeded the degree of uniformity required under the state constitution. 148 Wis. 2d at 496. Holding that the rational basis test rather than strict scrutiny applied to issues based on spending disparities, the court reasoned that spending disparities did not involve the denial of an educational opportunity within the scope of the state constitution. 148 Wis. 2d at 496-98. When District Judge (now Justice) Luckert wrote her opinion in U.S.D. No. 373, et al. v. State, No. 90 CV 2406 (Shawnee County District Court, filed Dec. 16,1993) (For ease of reference, this slip opinion will be referred to hereinafter as “U.S.D. No. 229, slip op.”), she looked at all of the school finance opinions from other jurisdictions to that point and concluded that those applying a rational basis standard of review to school finance equity challenges were the most persuasive. U.S.D. No. 229, slip op. at 89-92. Those justices who sat on this court at the time the appeal arose in that case adopted Justice Luckert’s position, as well as nearly all of her exhaustive and eloquent discussion. U.S.D. No. 229, 256 Kan. at 239-51, 261-63. In my view, the precedential landscape on the appropriateness of a rational basis standard of review for school finance legislation, as opposed to outright denial of the right to an education, has changed little since U.S.D. No. 229 was decided, and I agree that the cases on which Justice Luckert and the Supreme Court relied remain persuasive on the wisdom of applying that standard to statutes providing for education finance in Kansas. However, I am not comfortable reasoning backward from that conclusion to say there is no fundamental right to education under our Kansas Constitution. In fact, on close reading, it is evident that Justice Luckert was also reluctant to make this backward leap of logic. See U.S.D. No. 229, slip op. at 94 (“Further, while there may be a fundamental right to the constitutional guarantee of an education, the legislature met this right and the lesser rational basis standard should be applied to the examination of the equality of the financing.”). It was not until the Kansas Supreme Court’s opinion in U.S.D. No. 229 that Justice Luckert’s use of a rational basis standard for review of school finance legislation was equated to a conclusion that the Kansas Constitution recognizes no fundamental right to education. See U.S.D. No. 229, 256 Kan. at 261 (“Here, the district court exhaustively analyzed decisions from other jurisdictions in concluding that education was not a fundamental right requiring application of the strict scrutiny test in analyzing legislation involving the funding of public education.”). As stated above, if we were to regard Rodriguez as controlling on the method for determining the existence of a fundamental right to an education, our Kansas Constitution’s explicit education provisions would settle the matter in favor of holding that such a right exists. Lujan and like cases are probably correct, however, to question the utility of this approach for the interpretation of state constitutions. See Lujan, 649 P.2d at 1017. Like the Colorado Constitution under consideration in Lujan, the Kansas Constitution contains several explicit provisions “suited for statutory enactment” that plainly do not give rise to fundamental rights for individuals. See, e.g., Kan. Const. Art. 12, § § 1, 2 (provisions regarding corporations, stockholder liability). As Justice Luckert recognized, factors that may be considered in addition to the language of a state’s education clause include the relationship of that clause to the state constitution as a whole, the state’s particular constitutional history, and any perception that the framers intended education to be a fundamental right. See U.S.D. No. 229, slip op. at 85-92 (citing Alabama Coalition for Equity v. Hunt, No. CV-90-883-R [Ala. Cir. unpublished opinion filed April 1, 1993] [1993 Westlaw 204083]; Horton I, 172 Conn, at 653-54 [Bogdanski, J. concurring]; Washakie Co. Sch. Dist. No. One, 606 P.2d at 333). In .Kansas, all of these factors support the existence of a fundamental right to education. First, the language of the education article is mandatory. The legislature “shall provide for intellectual, educational, vocational and scientific improvement” and it “shall make suitable provision for finance of the educational interests of the state.” Kan. Const. Art. 6, § § 1, 6. Neither the provision of progressive educational improvement nor the financing of it is optional. Second, the education article’s relationship to the constitution as a whole emphasizes its centrality to the document’s overall design. Only five articles precede it. Each of the first three outlines one of the three branches of government. See Kan. Const. Arts. 1, 2, 3. The fourth and the fifth deal with elections and suffrage, without which the three branches could not be populated. See Kan. Const. Arts. 4, 5. Next comes education; once the branches are established and their seats filled, it appears education is the first thing on the agenda of the new state. See Kan. Const. Art. 6. The education article comes before those dealing with public institutions and welfare, the militia, county and township organization, apportionment of the legislature, and finance and taxation, among others. See Kan. Const. Arts. 7, 8, 9, 10, 11. Our constitution not only explicitly provides for education; it implicitly places education first among the many critical tasks of state government. Third, our state’s constitutional history reinforces the importance of education even before statehood. As noted both by Justice Luckertin her U.S.D. No. 229 opinion and by District Judge Terry Bullock in his earlier decision in Mock v. State, No. 90 CV 918 (Shawnee County District Court, filed Oct. 14, 1991), public schools were significant components of life on the prairie that would become Kansas. In Justice Luckert’s words: “[T]he Organic Act and the Act for the Admission of Kansas Into the Union included provisions providing that certain sections of land be reserved for educational purposes. (The Organic Act, and Act to Organize the Territory of Kansas § 34 (10 Stat. 289, chapter 59, § 34, May 30,1854)). A Territorial Superintendent fo Common Schools certified teachers and organized local school districts within walking distance of students’ homes. “When passed in 1859, the Ordinance to the Constitution contained eight sections, three of which dealt with elementary public education. The framers of the constitution devoted an entire article to the establishment and finance of a system of ‘common schools.’ Section 6 of the Ordinance provided for statewide financing of schools by earmarking five percent of all proceeds from the sale of public lands for the exclusive use of the public schools. “The original [A]rticle 6 of the Kansas Constitution was adopted by the statehood convention in July 1859, ratified by tire electors of the State of Kansas on October 4,1859, and became law upon tire admission of the State into the United States in 186[1]. Section 3 of the [A]rticle 6 provided for funding of public education. Sale of public lands, unclaimed estates, rents on public lands,- ‘and such other means as the legislature may provide, by tax or otherwise, shall be enviably appropriated to the support of common schools.’ “Hence, from its inception, Kansas has financed public schools through taxes and other mechanisms provided for by tire legislature . . . .” U.S.D. No. 229, slip op. at 5-6. See King, C., The Kansas School System — Its History and Tendencies, Collections of the Kansas State Historical Society 1909-1910, pp. 424-25. The relevant original language of our constitution’s Article 6 stated: “§ 2. “The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate and university departments.” (Emphasis added.) Kan. Const. Art. 6, § 2 (1859). This language remained in place until 1966, when Article 6 was amended to its current form. The amendment reaffirmed “the inherent power of the legislature — -and through its members, the people — to shape the general course of public education and provide for its financing.” U. S.D. No. 229, slip op. at 8 (quoting Kansas Legislative Council, Implementation of the Education Amendment — Report of the Education Advisory Committee, p. vii [Nov. 1966]). The amendment also revamped administration of the consolidated state system of education, but it did nothing to undercut any individual right to education. In fact, it strengthened the language outlining the legislature’s responsibilities. Section 2 of Article 6 of the original constitution became § 1 of Article 6 and now commands: “The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities.” (Emphasis added.) Kan. Const. Art. 6, § 1. In addition, new language was inserted in Section 6 of the Article: “The legis lature shall make suitable provision for finance of the educational interests of the state.” Kan. Const. Art. 6, § 6(b). Finally, indications are that the framers of our constitution intended education to be a fundamental right. Education was central to Kansas settlers, both pro and antislavery. Early proposed constitutions and the ultimate document, adopted at Wyandotte on July 29, 1859, and ratified October 4 of that year, “reveal the educational spirit of the Kansas pioneer.” See King, The Kansas School System — Its History and Tendencies, pp. 424-25. Statutes since 1858 enumerated subjects that must be taught in the common schools; after that time, curriculum has been marked by continuous expansion and enrichment. See King, p. 425. As Justice Luckert discussed in U.S.D. No. 229, slip op. at 5-6, the Ordinance to the Kansas Constitution passed in 1859 devoted three of its eight sections to elementary public education. And the original and amended constitution not only devoted an entire article to the establishment and finance of a public education system, see U.S.D. No. 229, slip op. at 5, the placement of that article and its resulting emphasis suggest that education was considered a high, if not first, priority of state government. Beyond the factors enumerated in the cases, it is also well worth noting that Justice William J. Brennan discussed the societal and political significance of education in his Rodriguez dissent: “[T]here can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment.” 411 U.S. at 63 (Brennan, J., dissenting); see Blumenson and Nilsen, One Strike and You’re Out? Constitutional Constraints on Zero Tolerance in Public Education, 81 Wash. U. Q. 65, 99,102 (Spring 2003). What was true when Justice Brennan wrote those words in 1973 certainly continues to be true in the early years of the 21st century. Our sister courts have not disagreed, instead recognizing education’s overwhelming political and economic importance. See U.S.D. No. 229, slip op. at 88 (citing Lujan, 649 P.2d at 1017; Hornbeck, 295 Md. at 649-50; Levittoum UFSD, 57 N.Y.2d at 43; Tennessee Small School Sys. v. McWherter, 851 S.W.2d 139, 151- 52 [Term. 1993]). That a certain level and quality of formal education is necessary for any citizen to function intelligently and productively in our increasingly complex democracy and our shrinking world is not honestly debatable. An individual citizen’s right to education at this level and quality is “fundamental” in every imaginable sense of the word. Given the mandatory language of our constitution, the clarity of the historical record, and modem exigencies, how can it be otherwise? Education is vital for each citizen and no less imperative for the survival and progress of our republic. Of course, once we recognize the existence of a fundamental right to education under our Kansas Constitution, the question is how legislation implicating education financing should be reviewed. As I have said, I understand and agree that the rational basis standard of review should apply. Like the Minnesota Supreme Court in Skeen, 505 N.W.2d at 313-16, however, I believe there is a theoretical point of no return. At that point, the standard must shift to strict scrutiny. If inequities in a school financing system become so egregious that they actually or functionally deny the fundamental right to education to a segment of otherwise similarly situated students, we must be prepared to require more of our legislature than a mere rational basis for its line drawing. In addition to the reasons outlined in Justice Luckert’s U.S.D. No. 229, slip op., and adopted by our court for using rational basis review as the usual governing standard in U.S.D. No. 229, 256 Kan. 232, Syl. ¶ 7,1 believe there are at least two other justifications in school finance cases for deviation from our typical strict scrutiny of alleged violations of a fundamental right. First, the exercis.e — indeed, the existence — of an individual’s fundamental right to education under the Kansas Constitution is unavoidably dependent at least in part on societal and governmental philosophy and action. Unlike, for example, the right to free speech or the right to privacy, which are inherent in the humanity of any individual and thus cannot be infringed by the government, see Gilbert v. Minnesota, 254 U.S. 325, 332, 65 L. Ed. 287, 41 S. Ct. 125 (1920) (right to free speech natural, inherent); Lawrence v. Texas, 539 U.S. 558, 573-74, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003) (right to privacy discussed; choices “central to personal dig nity and autonomy” protected from government interference) (citing Planned Parenthood of Southwestern PA. v. Casey, 505 U.S. 833, 846-47, 120 L. Ed. 2d 674, 112 S. Ct. 2791 [1992]), the right to education is at least in part a function of the way in which our society and other societies of the world have chosen to order and govern themselves and to prepare citizens for full political and economic participation. No child but the most exceptional is capable of educating himself or herself completely independently to the level and quality assured by the fundamental right. Some governmental assistance or intervention is required. State government, through the legislature, is a guarantor and facilitator of the exercise of the right as well as a potential source of interference with it. When the government must be involved, as it must be here, and that involvement demands investment of resources purchased at some cost to taxpayers, it is logical and reasonable that the legislature should be more free than the specter of strict scrutiny would allow it to be when it makes policy choices. Even under rational basis review, however, the judiciary retains its power to decide whether legislative choices make educational sense, i.e., whether they comport with the overall constitutional mandates that the legislature “provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities” and “make suitable provision for finance of the educational interest of the state.” Kan. Const. Art. 6, § § 1, 6. Second, I agree that rational basis review has much to recommend it when a case reaches a remedial phase, i.e., when we are called upon to judge the adequacy and efficacy of the legislature’s efforts to correct constitutional problems identified by the courts. See U.S.D. No. 229, slip op. at 92-95 (discussing Connecticut’s approach in Horton v. Meskill [Horton III], 195 Conn. 24,486 A.2d 1099 [1985]). For all of the foregoing reasons, I concur in the judgment and most of the rationale of my colleagues. I respectfully disagree with their view that education is not a fundamental right under the Kansas Constitution. It is. Justice Luckert never held otherwise in U. S.D. No. 229, slip op. This court should not have jumped to that regressive conclusion then, and it should not reinforce that error now. Davts, J., joins in the foregoing concurring opinion.

The opinion of the court was delivered by Beier, J.: Jerome Carter appeals his convictions and sentences for first-degree felony murder, aggravated robbeiy, and criminal possession of a firearm. These convictions followed Carter’s second trial. He was originally convicted of first-degree premeditated murder, aggravated robbery, and criminal possession of a firearm; but those convictions were reversed on a claim of ineffective assistance of counsel. See State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000). Carter and his first trial counsel had disagreed over the attorney’s pursuit of a guilt-based defense, despite Carter’s assertions of innocence. Four issues are now before us: (1) Did the district court properly admit portions of eyewitness testimony, including identifications, from Carter’s preliminary hearing and first trial? (2) Did the prosecutor commit reversible misconduct? (3) Was there sufficient evidence to support the convictions? and (4) Did the consideration of Carter’s juvenile adjudications in calculating his criminal history score violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)? Carter’s convictions arose out of an attempt to rob three men: Cavelle Horn, Troy Hawkins, and Carlos Johnson. According to Horn’s testimony, two men entered the house the three were occupying and demanded cash. Horn told the intruders he had no money but said they could take his car keys. When one of the intruders left the house to survey the car, the three intended victims realized the second intruder was unarmed. Horn, Hawkins, and Johnson locked the door to keep the armed intruder outside and began beating the unarmed man. When the man who had gone outside heard the commotion, he attempted to break into the house through the front door. Horn and Johnson then fled through a back door, but Hawkins remained. The man outside eventually was able to reach inside the door with his gun, and he fired several shots, fatally wounding Hawkins and freeing his confederate. After the murder, a pager found outside the house was tracked to Lelandra Sweeney, the unarmed intruder who had been beaten. When the police found Sweeney, he gave them Carter’s name and a description of his car. Once the car was found, the police began surveillance of it. That surveillance led to discoveiy of the murder weapon in the possession of Cassandra Smith. Smith told the police that Carter was her boyfriend and that he had given the gun to her to get rid of it. At trial, Smith testified that Carter and Sweeney left her house together on the night of the murder. They returned an hour later, and Sweeney was bleeding. The same night, Carter told her “he had dumped on somebody,” which she understood to mean that he “shot at somebody, killed somebody.” She also testified that Carter was wearing a yellow jacket on the night of the murder; testing performed on the jacket revealed Hawkins’ DNA was on it. Horn testified at Carter’s preliminary hearing and at both of his trials. During the preliminary hearing and first trial, Horn identified Carter as the armed intruder. At the second trial, Horn testified to clear memories of many of the night’s events but said he did not get a good look at the man with the gun, that he could not identify Carter, and that he did not remember doing so in earlier proceedings. The district court thereafter permitted the prosecutor to read certain portions of Horn’s earlier testimony from the preliminary hearing and first trial and to question Horn about those passages. Later, during closing argument, the prosecutor said: “Twice under oath, within a short period of time, [Horn] positively identified the defendant. And you saw [Horn] testify last week. Did you find his testimony to be unusual? Did you find it to be interesting that . . . Horn told you that he remembered what happened, that his memory was good now? He remembered absolutely everything except he didn’t remember identifying the defendant. “He didn’t remember identifying the defendant, but he remembered everything else. “Now what has changed with . . . Horn between 1998 and today? Has his memory gone away? No, he said his memory was still good. That’s not the problem. It’s not that I don’t remember. I remember everything else. I just can’t remember him doing it. Since that time [Horn’s] become a father. He’s got a three-month-old daughter. He’s now a man with responsibilities which go beyond himself. He’s no longer footloose and fancy-free. He has to think about other people. Did it appear to you that [Horn] was telling you the truth when he said, Uh, I don’t remember, uh, identifying the defendant or saying, uh, I can’t do it now, or did he appear to be afraid?” The district court overruled a defense objection to this statement, and the prosecutor continued: “Well that’s a decision you have to make; and, you know, the judge has told you in one of the instructions, Instruction No. 2 actually, to use your common knowledge and experience. Well, that’s a lawyer’s fancy way of saying use your common sense. Why would [Horn’s] testimony change between then and now? You have to make that call.” In addition, the prosecutor commented on Smith’s testimony in the following way: “[W]hen [Smith] went to lie down with [Carter] he told [her] he’d lolled someone, that he dumped on them. Remember, I asked her what does “dump” mean, and she said it means to shoot someone. What [Carter] didn’t say [was] Lelandra killed someone. [Carter] didn’t say some unknown guy killed someone. [Carter] said, I did it. I shot someone.” The defense did not object to this comment by the prosecutor. Admission of Earlier Identifications of Carter Carter first argues that the district court’s admission of Horn’s identifications of him from the preliminary hearing and first trial violated his right of confrontation under the Sixth Amendment to the United States Constitution. In Carter’s view, Horn’s lack of memory made him, for all practical purposes, unavailable for cross-examination at the second trial and Carter’s first trial counsel’s pursuit of a guilt-based defense eliminated any incentive to cross-examine Horn closely on the earlier identifications. In short, Carter asserts that the earlier identifications were unreliable because they were tainted by his first trial counsel’s unconstitutional ineffective assistance. There can be no doubt that Horn’s previous identifications of Carter were relevant, our first consideration when examining appellate challenges to a district court’s admission of evidence. See State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004); K.S.A. 60-407(f). Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. Cf, e.g., K.S.A. 2003 Supp. 60-460(m) (certain relevant business writings admissible as matter of law once foundation laid); K.S.A. 60-445 (discretion to exclude relevant evidence after weighing probative value, risk of unfair prejudice). When the underlying facts are undisputed, an appellate court’s review of whether a witness was available or unavailable and whether a Confrontation Clause issue arose is de novo. See State v. Bailey, 263 Kan. 685, 697, 952 P.2d 1289 (1998). In this case, because Horn’s testimony is of record, this court is equipped as well as the district court to determine whether his memory loss classified him as available or unavailable and whether an issue arose under the Confrontation Clause. Our standard of review is therefore de novo. Carter relies principally on our decision in State v. Lomax & Williams, 227 Kan. 651, 608 P.2d 959 (1980). In Lomax, a witness identified the defendant at an earlier preliminary hearing in a related case. When the defendant went to trial, however, the witness denied any memory of the events in question. The prosecution then sought admission of her prior preliminary hearing testimony from the related case. On appeal, we held that, in order for the witness’ prior testimony to be admissible at the trial, the district court must have determined that she was then present and available for cross-examination. We concluded that, even though the witness was physically present for trial, she was unavailable for cross-examination because “she simply refused to testify.” Her consistent responses of “I don’t know” or “I don’t recall” on all pertinent points made her just as unavailable as though her physical presence could not have been procured. As a result, her earlier testimony, untested by defendant’s counsel’s opportunity for cross-examination, was inadmissible. 227 Kan. at 656-62. Carter believes his circumstances are comparable. Any prior opportunity for his counsel to cross-examine Horn was hampered by his first trial counsel’s strategy and therefore inadequate. This means the State could not meet the requirements of K.S.A. 2003 Supp. 60-460(c)(2), which permits prior testimony of an unavailable witness to be admitted only if “the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered . . . .” In addition, Carter emphasizes the United States Supreme Court’s recent decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Crawford overruled Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), in part and reinforced the necessity of a prior opportunity for confrontation through cross-examination to protect criminal defendants forced to combat hearsay from prosecution witnesses. For its part, the State first asserts that this issue was not preserved for appeal. We have carefully reviewed the record and conclude that Horn’s second trial counsel sufficiently challenged the prosecutor’s questions based on the earlier identifications, repeatedly objecting that Horn’s earlier statements could not be cross-examined properly. On the merits, the State argues that this case is distinguishable from Lomax and more similar to State v. Osby, 246 Kan. 621, 793 P.2d 243 (1990). In Osby, the defendant claimed error because the district court admitted the testimony of two witnesses from related trials. We distinguished Lomax, in which the witness refused to answer all questions; the Osby witnesses instead selectively remembered details of the incident. We held the witnesses were not unavailable, and their contradiction of their prior testimonies meant extrinsic evidence of those prior testimonies could be admitted. Osby, 246 Kan. at 631-33 (citing State v. Hobson, 234 Kan. 133, 146-47, 671 P.2d 1365 [1983]). It was enough that the defense attorney had the opportunity to cross-examine the witnesses and ask them to “identify, explain, or deny the prior testimony” under K.S.A. 60-422. Osby, 246 Kan. at 630-31. We agree with the State that this case is more similar to Osby than to Lomax. Horn selectively remembered many details of the incident. He was available for cross-examination in the second trial, meaning neither K.S.A. 2003 Supp. 60-460(c)(2) nor Crawford was implicated. Rather, admission of his earlier sworn testimony was governed by K.S.A. 2003 Supp. 60-460(a), which reads: “Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except: “(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.” Moreover, as in Osby, 246 Kan. at 631, “ ‘extrinsic evidence of prior contradictoiy statements, whether oral or written, made by the witness,’ ” was admissible here as long as Horn was given an opportunity to explain. See K.S.A. 60-422(b) (such statements ex-cludable in discretion of court if witness given no such opportunity). Horn’s examination left him plenty of room to explain if he were inclined to do so. The district court did not err in ruling on Carter’s objections to the introduction of Horn’s earlier identifications. See also State v. Manning, 270 Kan. 674, 689-90, 19 P.3d 84 (2001) (Osby applied to witness’ selective memoiy; district court could employ discretion to admit prior statement to police even though trial testimony did not qualify as “affirmative, contradictory, and adverse”). Prosecutorial Misconduct Carter claims that the prosecutor committed misconduct during closing argument when commenting on the change in Horn’s testimony and on Smith’s reference to Carter “dumping” on someone. The State argues that the prosecutor’s statements merely pointed out reasonable inferences that could be drawn from the evidence presented at trial. We first note: “No rule governing oral argument is more fundamental than that requiring counsel to confíne remarks to matters in evidence. The stating of facts not in evidence is clearly improper. However, in summing up a case, a prosecutor may draw reasonable inferences from tire evidence and is allowed considerable latitude in discussing the evidence.” State v. Heath, 264 Kan. 557, Syl. ¶ 12, 957 P.2d 449 (1998). To determine whether a prosecutor’s closing remarks have constituted prosecutorial misconduct, we have applied what we describe as a two-step analysis: “First, we consider whether the remarks are outside the considerable latitude allowed to the prosecutor in discussing the evidence. The prosecutor is given wide latitude in both the language and the manner of presentation of closing argument so long as the argument is consistent with the evidence. Second, we must determine whether the remarks constitute plain error. Plain error occurs when the prosecutor s remarks are so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial, requiring reversal. [Citation omitted.] “A prosecutor’s remarks during closing argument are so gross and flagrant that they deny the defendant a fair trial when the reviewing court, using a harmless error analysis, finds that the error would have changed the result of the trial. Otherwise, the court must be willing to declare beyond a reasonable doubt that the error was harmless. [Citation omitted.]” State v. Ly, 277 Kan. 386, 392-93, 85 P.3d 1200 (2004). The prosecutor s comment on Horn’s change of heart did not constitute a comment on matters not in evidence; rather, it merely guided the jury to a reasonable inference that could be drawn from the evidence. Horn had identified Carter as the armed intruder during his earlier testimony. At Carter’s second trial, Horn testified that his daughter was bom between the two trials. Further, despite his clear memory of many of the details of the night of the murder, he could no longer recall whether Carter committed the crime or even whether he had ever testified as much. The prosecutor’s suggestion that Horn’s new family responsibilities could connect the dots between his testimony at the first trial and his testimony at the second trial was within the wide latitude granted the prosecutor in making closing argument. Similarly, the prosecutor’s comment on Smith’s testimony did not constitute misconduct. The prosecutor merely repeated, nearly verbatim, Smith’s description of what Carter said and what Smith understood Carter to mean. Sufficiency of the Evidence “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). Viewing the evidence introduced in Carter’s second trial in the light most favorable to the prosecution, we have no trouble sustaining his convictions. They were supported by ample direct and circumstantial evidence, such that a rational factfinder could have found Carter guilty of the three offenses beyond a reasonable doubt. Consideration of Juvenile Adjudications in Calculating Criminal History Score We have previously rejected Carter’s last contention: That considering his juvenile adjudications in calculating his criminal history score violates Apprendi v. New Jersey, 540 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). In State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), we held that juvenile adjudications “enjoy ample procedural safeguards” and are therefore encompassed in the Apprendi exception for enhancement of criminal sentences because of prior crimes. Carter concedes that Hitt is controlling unless we choose to overrule it. We decline his invitation to do so. See State v. Norton, 277 Kan. 432, 443, 85 P.3d 686 (2004). Affirmed.

The opinion of the court was delivered by Porter, J.: Appellant seeks to reverse a judgment of the district court by which he was convicted of the crime of obtaining illicit connection, under a promise of marriage, with a female of good repute under twenty-one years of age, in violation of section 2021 of the General Statutes of 1901. The information was filed October 25, 1904, and charged that the oifense was committed in June, 1902. The testimony of the prosecuting witness was that it occurred June 8, 1902. It is first contended that because the information contained no averments that would avoid the two-year statute of limitation it failed to state a criminal offense. The record discloses that the complaint was filed before a justice of the peace on the 18th day of September, 1903; that a warrant was issued on the same day and was placed in the hands of the sheriff. The arrest was made in Oklahoma, in September, 1904, and the appellant consented to be taken back to La-bette county under the warrant. It appears, therefore, that the state was proceeding upon the theory that the prosecution was commenced, not at the time the information was filed, but when the warrant was issued, which was within the two years. This being the case, it was not necessary for the information to contain any averments showing the absence of appellant from the state. It is only where no warrant has been issued within two years after the oifense has been committed that the information must state the facts which are relied upon to avoid the statute. We have no statute which declares what shall be deemed the beginning of a criminal action. It was expressly decided, however, in In re Clyne, Petitioner, 52 Kan. 441, 35 Pac. 23, as follows: “A criminal prosecution is commenced when a war rant is duly issued and placed in the hands of a proper officer to be executed in good faith and with due diligence, and if so issued within the time limited by law for the commencement of such criminal prosecution, and executed thereafter without unnecessary delay, even though the arrest be made after the statutory limitation has run, the prosecution will still be deemed to have been commenced in time.” (Syllabus. To the same effect see In re Griffith, Petitioner, 35 Kan. 377, 381, 11 Pac. 174; 19 A. & E. Encycl. of L. 166.) The information stated an offense within the statutory period. In other words, where it appears that the warrant was issued within the statutory time the presumption of law follows that the officer performed his full duty in the premises. The appellant insists that there was no evidence of a promise of marriage except the testimony of the prosecuting witness. The statute under which he was convicted contains the following proviso: “That the testimony of the woman alone shall not be sufficient evidence of a promise of marriage.” (Gen. Stat. 1901, § 2021.) It is argued that it was the intention of the statute that the fact of such promise must be’known by other persons or that the parties must have so conducted themselves as to lead their friends and relatives to understand that there existed an agreement to marry. It is universally recognized that the charge that intercourse has taken place is easily made and hard to disprove. The gist of the offense under this statute is obtaining intercourse under promise of marriage. The purpose of this provision is obviously to prevent unjust convictions which might readily follow if the mere unsupported statement of the woman were held sufficient to prove the promise. The charge might be made in a case where the parties, so far as their friends and relatives were aware, had never kept company, or even been together, before the commission of the alleged offense. In Creighton v. The State, 41 Tex. Crim. Rep. 101, 51 S. W. 910, 61 S. W. 492, the court held that the corroborative testimony to prove the promise of marriage under a similar, statute may be circumstantial evidence tending to prove the promise. The Iowa supreme court lays down the same general rule in State v. Smith, 124 Iowa, 334, 100 N. W. 40, and in State of Iowa v. Bess, 109 Iowa, 675, 81 N. W. 152. In the latter case a judgment of conviction was reversed for the reason that the court instructed the jury that if they found that defendant visited the prosecutrix as a suitor that fact would sufficiently corroborate her evidence tending to connect him with the offense. The sufficiency of the circumstances — in other words, the weight of the evidence — must be left for the jury to decide. The error in the instruction was, therefore, plainly evident. Again, in State of Iowa v. Reinheimer, 109 Iowa, 624, 80 N. W. 670, it was said: “We have frequently held that the fact that the parties kept company, and acted as lovers usually do, and other like circumstances, are sufficient to constitute the corroborating evidence necessary to connect the defendant with the offense.” (Page 626.) In the present case there was testimony that defendant and the prosecutrix kept company for about six months before the alleged offense. He called frequently at her home, taking her to church and to entertainments, and driving and walking with her at night. He called to see her and accompanied her somewhere every week, and often twice a week. He was her acknowledged suitor. The girl’s mother testified that after his arrest she heard a conversation between them in which defendant said to the prosecuting witness that she could never prove a promise of marriage and asked her whether any one had driven up behind them and heard them talking marriage. All that the statute requires is that' there shall be other evidence to corroborate the woman. It does not attempt to define the character of the corroborating evidence. It must, of course, be sufficient to satisfy the jury. In the nature of things it must often consist of circumstances. Under the customs which quite generally prevail in this country the fact of an engagement or promise of marriage is often not known to any but the contracting parties, except by inference from circumstances. The promise is made when the parties are by themselves. Evidence, however circumstantial, which shows that they were courting and acting as lovers usually do in the community where they resided and in the circle of society to which they belonged may strongly tend to corroborate the testimony of the woman that there was a promise of marriage. If the jury find such facts and circumstances sufficient to corroborate the statute is satisfied. There was no positive, direct proof that the prosecuting witness was unmarried when the alleged offense was committed. When defendant was brought back from Oklahoma he was met by numerous neighbors and acquaintances, gathered under the auspices of the Anti Horse-thief Association, and upon their suggestion he consented to marry the prosecuting witness, and the ceremony took place before a justice of the peace, when he immediately deserted his wife. At the trial she was frequently referred to as Arameda Waterman, formerly Arameda Van Bibber. Her parents testified that she was their daughter and while living with them under the latter name was courted and waited upon by defendant. She was referred to in the testimony also as the Van Bibber girl. Moreover, defendant put in evidence a transcript of the testimony of the prosecuting witness on the preliminary examination before the marriage, in which she testified that she was an unmarried woman.. We think there was sufficient testimony to establish the fact that she was unmarried at the time of the offense. In the case of State v. Heatherton, 60 Iowa, 175, 14 N. W. 230, it was said: “On a trial for the seduction of an unmarried woman evidence which shows that the woman lived with her father and bore his name, that she had received the addresses of the defendant for more than three years, and that a marriage engagement existed between them when the crime was committed, held sufficient to warrant the jury in finding that the woman was unmarried.” (Syllabus.) The supreme court of Missouri, in State v. Reed, 153 Mo. 451, 55 S. W. 74, held that keeping,company with a girl and the engagement of marriage are sufficient evidence upon which the jury may find that the woman was unmarried. Complaint is made of the following instruction: “You are instructed that any promise of the defendant to marry Arameda Van Bibber made after the act of intercourse, if any, will not sustain the charge against the defendant; but such promise, if any such was made, can only be considered by you as a circumstance in the case to prove the former contract or promise, if any was made.” We fail to see how the substantial rights of defendant were prejudiced by this instruction. The jury were told that a subsequent promise could only be considered as a circumstance tending to prove a former one. Relations of the character testified to by the prosecuting witness, once established, are generally continued when opportunity is present; and lovers’ vows have ever been a favorite subject for repetition and reiteration. We find nothing substantial in the other errors complained of. The judgment is affirmed.

Per Curiam: Plaintiff asks for a review of trial errors without presenting either a case-made or a bill of exceptions. He brings a transcript of the record, and puts into it what is claimed to be a transcript of the evidence, with exceptions, and the rulings of the court. There is no certificate of the stenographer that the transcript of his notes attached to the record is true and correct, and not being authenticated as the statute requires it cannot be considered. (Laws 1905, ch. 320, § 1.) There being nothing before us for review, the proceeding is dismissed.

The opinion of the court was delivered by Porter, J.: The petition alleged that plaintiff had an exclusive lease of the right to mine the land for lead and zinc. His own evidence of the contract made in a conversation with the manager of the company is as follows: “Ques. What was that conversation? Ans. I could not repeat it exactly, but I told him that I could not beat the water there with a steam hoister and would have to quit. He wanted to know why I did n’t put in a pump, and I told him that it would not pay, and if I did it would have to be on the Ben Q lot, and he said, ‘Go ahead and cut wherever you want on the Ben Q lot; all I want is the royalty.’ ” He proved a mere parol license, which was revocable at pleasure, and which was sufficient until revoked to protect him from the charge of being a trespasser on the lands. According to his own version of the lease he was not bound to work the lands unless he saw fit to do so. No time was fixed when the right was to begin, and nothing was said as to its duration, or of the royalty to be paid, or how much work he was to perform, or the manner in which he was to conduct his operations. In Keeling v. Kuhn, 19 Kan. 441, it was said: “And he who claims rights through a license must show the terms and extent of that license, or it will be held to be merely one revocable at pleasure.” (Page 443.) Plaintiff’s right was a mere personal privilege, subject at all times to the right of the owner to enter upon the land and mine or to grant to another the sanie privilege, and liable at any time to be terminated by revocation at the owner’s will. It gave- plaintiff the title to such ores only as he reduced to his own possession while the privilege lasted. The expenditure, of money under the privilege added nothing to the grant. It was still a license and revocable, with the right in the licensee to remove from the premises anything movable which he had placed thereon. The case of Kamphouse et al. v. Gaffner, 78 Ill. 453, is in point. It was there held: “A parol license to mine on land is a protection against an action of trespass for acts done under it before revocation, but it is revocable at the will of the licensor, and cannot be transferred to another. “A subsequent conveyance or leasing of the premises amounts to a revocation of license, whether by deed or parol, unless such license is coupled with an interest, and executed.” (Syllabus.) In the case of Desloge et al. v. Pearce et al., 38 Mo. 588, the same question was decided in these words: “A mere license, unaccompanied with any vested interest in the real estate created by deed or other writing, and independent of any title acquired by grant, prescription or adverse possession and claim for the period of the statute of limitations, must be deemed to be in its own nature countermandable, and essentially revocable at the will of the owners of the fee. It can give no irrevocable right to hold possession of the realty, and to continue working the mines indefinitely and against the will of the owner of the land.” (Page 601.) The principles involved in this case are not new, and the law is well settled. See the following authorities: Carnahan v. Brown, 60 Pa. St. 23; The Johnstown Iron Company v. The Cambria Iron Company et al., 32 Pa. St. 241, 72 Am. Dec. 783; Blanch. & Weeks, Min. & Min. 467; Bar. & Adams, Law of Min. & Min. 67. The authors of the latter- work use this language: “A grant of a privilege of mining which, if in writing, would constitute an incorporeal hereditament, if made by parol constitutes a license, a mere personal privilege which is unassignable, is concurrent with the right of the licensor to mine, is revocable at the will of the licensor, and vests no title in the minerals until they are severed by the acts of the licensee.” (Page 67.) Authorities might be multiplied in support of the doctrine. The demurrers to the evidence were properly sustained. The judgment is affirmed.

The opinion of the court was delivered by Greene, J.: It is contended that the court erred in overruling plaintiff’s demurrer to defendant’s evidence, because of a failure of proof that he had returned or offered to return the machine to the place where he had received it. Under the original contract, before the defendant could rescind he was required to return the machine. The law is. well settled in this state that where a machine is purchased, as this machine was, there can be no rescission until the property is returned to the place where it was received. The machine in question was defective, and notwithstanding ample opportunity had been given the plaintiff to make it do satisfactory work, and in this respect fulfil the conditions of the warranty, all efforts had failed; and because of this failure Fry refused to pay for the machine. Because. of this condition a new, or supplemental, agreement was entered into on September 10,1908, by which Fry agreed to store the machine for the plaintiff until June 15, 1904, it agreeing, as stated in the contract, “to put the separator in a first-class condition, by putting in new-style straw-racks, and stop the leaking, so the machine will do first-class thrashing and as good as is expected of any machine.” This was to be completed by June 15, 1904. It is stated in the agreement that this supplemental contract is not to change any of the terms of the purchase contract except as therein specified. Under this clause it is contended that the provision of the purchase contract that the defendant must return the machine before he can rescind still remained in force. With this we do not. agree. Notwithstanding this provision the supplemental contract of necessity changed the relation of the parties, and with these changed relations different obligations arose. Before this contract was made Fry was in possession of the machine, as owner, and before he could have claimed a rescission he would have had to return the machine and surrender that claim of ownership. By the terms of the new contract his possession as owner was changed to a possession for the use of the plaintiff, for a definite time, and a particular purpose. A compliance by the company with the conditions of this agreement, within the time specified, might have resulted in restoring to Fry the possession of the machine as owner, but until the plaintiff had fully complied with its agreement Fry’s possession of the machine was the possession of the company. In the contract changing the nature of Fry’s possession no obligation was imposed upon him to return the machine to the place where he received it in case the company failed to fulfil its agreement. The evidence was conclusive that the plaintiff did not attempt to comply with its contract to repair and put the machine in proper order on or before June 15, 1904, and it is equally conclusive that upon such failure Fry promptly declared the contract at an end. This was all that was required of him to terminate his contractual relations with the plaintiff and entitle him to claim a rescission. Objections are urged to the refusal of the court to give a number of instructions requested by the plaintiff, and also to the giving of instruction No. 7. Of those requested, some contain erroneous statements of law and others were inapplicable to the facts; and we find no error in the giving of instruction No. 7. Nor do we find any prejudicial error in the refusal of the court to set aside the special findings of the jury excepted to by the plaintiff. The judgment is affirmed.

Per Curiam: Rule 7 of this court, relating to the preparation of cases to be considered, is ignored in the respect that no index of the record has been supplied. Rule 10 has also been utterly disregarded. However, as it was stated on the presentation of the case that reasons existed which palliate the infraction of the rules, we have attempted with considerable inconvenience, and much uncertainty in the absence of any specification of errors, to ascertain the merits of the case and the grounds for complaint. The controversy was whether a second floor, laid in a building over another floor, without the consent of the owner of the building, was so attached to the first, or permanent, floor as to become a part of the real estate, or whether the second floor as laid and attached remained' personal property. The court properly instructed the jury, in substance, that if the second floor was permanently attached to the floor beneath, or so attached that it could not be removed without some' considerable injury to the building or floor beneath, it thereby became and was a part of the realty; otherwise it was personal property/ The court also gave the jury some other proper tests for determining this controversy. The evidence was not entirely harmonious, and the jury found in favor of the plaintiff — that the second floor was personal property, and assessed its value. In one of the special findings the jury stated that some of the nails penetrated the first floor one-fourth of an inch. It cannot be said from this, however, as a proposition of law, that the second floor was permanently attached or that the first floor would be injured to any material extent by the removal therefrom of the second floor. No error having been assigned, and no material error being discovered, the judgment is affirmed.

The opinion of the court was delivered by Greene, J.: Before examining the errors assigned it should be ascertained whether the, plaintiff ever had any interest in the- land in controversy, and, if so, the nature of such interest, and whether it was barred by the statute of limitations. If the facts stated in her petition disclose that she never had any interest in the land, or that her cause of action was barred by the statute of limitations, no errors committed on the trial could be prejudicial to her. Upon the first question here suggested it is contended that under our statute a non-resident wife has no interest in the real estate of her husband situated in Kansas, and therefore that it was impossible for plaintiff’s husband and the defendant to commit a fraud upon her right by any act with reference to such real estate. Our statute provides: “One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him; provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state.” - (Gen. Stat. 1901, § 2510.) This statute does not discriminate against a nonresident wife in favor of a resident wife 'as to the interest the former shall have, in the real estate of her husband situated in Kansas. It excludes her from any interest in any lands owned by the husband of which he has made a conveyance, when the wife at the time of the conveyance is not or never has been a resident of the state, and it excludes both the resident and non resident wife from any interest in any lands which have been sold on execution or other judicial sale. But as to lands not thus disposed of, and not necessary for the payment of his debts at the time of his death, the interest of the non-resident wife is equal to that of the resident wife. The interest which the statute gives to the wife in the real estate of her husband during his life is not easily classified or defined. Because of this difficulty it has been thought by some to be in its nature an inheritance, and such a suggestion may be found in some of the opinions of this court. But practically the entire trend of the decisions of this court is to treat it as a present existing interest — one which the wife may protect by an appropriate action during the life of the husband and against his wrongful acts. (Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245; Flanigan v. Waters, 57 Kan. 18, 45 Pac. 56.) The wife’s interest does not depend for its inception upon the death of the husband, as an inheritance would, but springs into existence by operation of law upon a concurrence of seizin and the marriage relation. This interest, equal to one-half in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, which has not been sold on execution or other judicial sale, and which the husband has not conveyed at a time when his wife was not or never had been a resident of this state, and not necessary for the payment of his debts, upon the death of the husband shall, under the direction of the probate court, bé set apart by the executor as her property. And the only control exercised by the probate court or the executor or administrator over the wife’s interest in the real estate owned by her husband at the time of his death is to ascertain its value and set it apart to the widow — not as an heir of her deceased husband, but as her separate and absolute property in fee simple. And since this interest does not come to her by inheritance it is not a bar to her recovery that her husband parted with his title in such a fraudulent manner that neither he nor his heirs can recover it. This section, as observed, excludes the wife from any interest in lands which have been sold on execution or other judicial sale. It is contended that this land was sold under execution sale and that the defendant holds his title through such sale. The statute contemplates only such execution and judicial sales as have become necessary for the payment of the debts of the husband. It does not contemplate collusive and fraudulent execution or judicial sales to which the husband is a party and which have no other object than to devest the husband of his title for the fraudulent purpose of depriving the wife of her interest in such property. All fraudulent judicial or execution sales are void as between one not a party but having a vested interest in the res and those in collusion with or participating in the fraudulent transaction. The title to the real estate in controversy is claimed by one who it is alleged was a party to the fraudulent proceedings which de-vested the title of John C. McKelvey. If the proceedings were collusive and fraudulent, such a sale did not have the effect, at least as between the plaintiff and those who were parties to the fraud, of defeating her interest in the land. The principal question litigated in the trial court was whether the judgment and the proceedings by means of which the title of John C. McKelvey to the lands in controversy became devested and the title thereto vested in the defendant, John A. McKelvey, were collusive and fraudulent. The court made special findings that they were not. Upon the trial the plaintiff, for the purpose of upholding her contention that such proceedings were fraudulent, and wanting in consideration, while the •defendant was upon the witness-stand and under cross-examination, asked him this question: “I will ask you to state to the court whether when that deed [being the deed from Bell to the defendant] was delivered to you on the 3d day of January, 1884, you paid to Doctor Bell the sum of $8000 ?” An objection was sustained to this question. This is alleged as error. It was an attempt to elicit information upon one of the controverted points — the want of any consideration passing from the defendant to Bell for the deed to the land. The deed purports to have been executed for a consideration of $8000,' and the ruling of the court excluded the plaintiff from inquiring into the actual consideration. This error appears more pronounced in view of the evidence of the defendant that when he came to Kansas, in 1883, less-than a year before the deed was executed, all the property he owned whs a one-half interest in a butcher shop, the total value of which was about $350, and the finding of the court “that when John A. McKelvey came to Kansas in 1883 he did not have to exceed $150, and that he has not received any money or property by inheritance from any one.” Under the pleadings the plaintiff should have been granted the greatest liberty in the examination and cross-examination of all the parties alleged to have been connected with the passing of this title, which she claimed was obtained by collusion and fraud. The ruling of the court deprived her of a substantial right. While a decision of the question raised by the second defense is not necessary to the present disposition of the cáse in this court, it will become important in a retrial of the cause, and for this reason we feel called upon to pass upon it. The contention is that the defendant has for more than fifteen years been in the open, exclusive and adverse possession of the land, claiming it as his own, under color of title, and that if the plaintiff ever had any rights thereto her right of action is barred by the statute of limitations. In this contention it is assumed that the plaintiff’s right of action accrued when the execution sale passed the title from her husband. While it has been held in this state that the wiffe may, during the lifetime of her husband, institute some proceedings to protect her interest in her husband’s real estate, as in the Busenbark case, supra, all remedies are not open to her during the life of her husband, £ind the remedy pursued by the wife in this case is one of those she' was not entitled to invoke during the lifetime of her husband.. Notwithstanding the interest of the wife in the real estate of her husband, during his lifetime she may not maintain ejectment or partition for such interest. It is. only upon his death that her right of action in ejectment accrues to her. This suit was commenced within two years after the death of the husband; therefore,, it was not barred by any statute of limitation. .The judgment is reversed and the cause remanded.. Johnston, C. J., Burch, Mason, Porter, Graves,, JJ., concurring.

The opinion of the court was delivered by Porter, J.: A situation rather anomalous is presented by the record in this case. Plaintiffs in error seek to reverse a judgment recovered against them in the district court by Nannie K. Brown in an action for damages for forcibly taking possession of real estate, and for injury to personal property. While the proceeding in error was pending the parties stipulated that the cause should be reversed and remanded for another trial, and an order of reversal was entered. Afterward, upon request of the judge before whom the case was tried, the order of reversal was recalled and the cause set down for argument. Briefs have been filed and oral arguments made, from which it appears that the result of the trial below was not satisfactory to either party, although defendant in error has filed no cross-petition in error. The facts, briefly stated, are as follow: In February, 1901, Nannie K. Brown was engaged in the implement and hardware business in Coffeyville, under the style of the Brown Supply Company, and was in possession of certain real estate under a written lease from the Atchison, Topeka & Santa Fe Railway Company, the owner. The real estate consisted of a tract of ground near the right of way of the railway company, upon which Mrs. Brown had erected three frame buildings and had stored therein a stock of farming implements and hardware. The buildings were of a temporary character. One of them was sixty-five feet square, twelve feet high, and was covered with felt, gravel and tin; another was thirty-two feet by ninety-two feet, and was covered with a shingle roof. All were surrounded by a board fence, The lease was made in 1896, and contained a provision that it could be terminated by either party on thirty days’ notice in writing. On December 24, 1900, the railway company served written notice upon Nannie K. Brown that it would terminate her tenancy on January 25, 1901. No steps were taken by Mrs. Brown to vacate. Thereafter, on February 11, 1901, the railway company made a lease to the W. O. Whitney Lumber & Grain Company, plaintiffs in error. On February 22 plaintiffs in error, claiming the right to the real estate by virtue of the subsequent lease, took forcible possession of the premises in the absence of ■Nannie K. Brown and her agents, and tore down the buildings and fence surrounding the lots and placed them upon an adjoining tract of land. The farm machinery and implements were also removed and placed on a vacant lot near by. Mrs. Brown then brought this action to recover damages for the forcible dispossession, and for conversion, alleging in her petition that defendants had converted the buildings and contents to their own use, and asking damages in the sum of $2009 for full value of all the personal property. The W. O. Whitney Lumber & Grain Company, a partnership, filed an answer which admitted the removal of the buildings and machinery, but alleged that it was done in a careful and prudent manner, denied that any of the property had been destroyed or converted, and attempted to justify their acts upon the ground that they were entitled to take possession of the real estate by express authority from the railway company and by virtue of the subsequent lease. The railway company was made a defendant and answered separately. On the trial its demurrer to plaintiff’s evidence was sustained. The jury returned a verdict for $300 against the W. O. Whitney Lumber & Grain Company, plaintiffs in error. A number of the errors complained of have more or less merit as abstract propositions of law, but in our view of the case are of little imporance. The court instructed the jury, in substance, that after the service of the notice by the railway company upon Mrs. Brown terminating her tenancy she was entitled to a reasonable time thereafter in which to remove her property, and that if she failed to do so the railway company had the right to remove it or delegate its authority to plaintiffs in error. The question of reasonable time was not in the case. Had it been, it was not one for the jury to determine, for it was admitted that after the thirty days mentioned in the notice Mrs. Brown had from January 25 to February 22 to remove her property, which was more than reasonable. The theory upon which plaintiffs in error made their defense, and upon which is based most of the claims of error, is that a landlord who is entitled to the possession of real estate at the expiration of a lease may take forcible possession of the premises and remove therefrom the personal property of the tenant, provided this can be accomplished without a breach of the peace. The principal case cited is Todd v. Jackson, 26 N. J. Law, 525, decided in 1857, in which it was said: “Where a tenancy has expired the landlord may take possession of the premises by any means short of personal violence; he may break into a dwelling-house for the purpose; he may remove goods which he finds there; and after obtaining possession he may protect that possession, as well against the tenant who attempts to hold over as against a stranger who intrudes upon his possession.” (Syllabus.) Relying upon this proposition of law, it is insisted that the court erred in overruling the demurrer to the evidence and in refusing a number of instructions re quested. While such is undoubtedly the law in some of the states, and the prevailing doctrine of the English courts, it is not the law in Kansas. In Peyton v. Peyton, 34 Kan. 624, 9 Pac. 479, it was said: “An action may be maintained against any person who commits a forcible entry and ouster, even though the latter is the owner of the property and entitled to immediate possession, if the plaintiff had at the time of the forcible ouster the actual and peaceable possession thereof. (Campbell v. Coonradt, 22 Kan. 704; Conaway v. Gore, 27 Kan. 127; Burdette v. Corgan, 27 Kan. 275.)” (Page 629.) In the opinion in Wilson v. Campbell, ante, p. 159, Mr. Chief Justice Johnston said: “The court rightly told the jury that not even an owner has a right forcibly to take real estate from the peaceable possession of another, no matter how justly he may be entitled to it, and that if Campbell was in the peaceable possession of the premises, and Wilson’s men entered the premises when the doors were locked and removed his goods during his absence and against his will, and while his possession continued, it would constitute a forcible entry under the law of this state.” (Page 162.) The court, as observed, gave an instruction that plaintiffs in error had the right to remove the property after the expiration of the thirty days’ notice and a reasonable time thereafter, provided it was done in a careful and workmanlike manner. The instruction as worded leaves some doubt whether it was intended to imply the right to use forcible means to accomplish the purpose; but viewed in the light of the evidence, from which it clearly appears that plaintiffs in error used force and even displayed' a Winchester rifle when the husband of Mrs. Brown appeared upon the scene and as her agent protested against their acts, it could hardly be taken to mean anything else. The instruction is clearly erroneous. However, plaintiffs in error only complain of so much of it as refers to the question of reasonable notice. The real vice of the instruction is what plaintiffs in error are contending for, and upon which their defense rests — that the owner of the real estate may forcibly dispossess a tenant after the expiration of the tenancy and not be liable in an action for damages. . It is complained of by defendant in error, but without avail, since there is no cross-petition. The husband of Mrs. Brown was permitted to testify in her behalf as to the value of the buildings, their size and character, and as to the value of the machinery and implements. He was her agent in the conduct of the business, erected the buildings, and purchased the stock of implements. It is insisted that, while under section 4771 of the General Statutes of 1901 he might testify concerning transactions in which he acted as her agent, the things he testified to were not transactions, but opinions based upon knowledge obtained while so acting. It is conceded that if acting as her agent he had bought the buildings, and a controversy arose in which the amount he paid became material, he might testify to what he had paid. The word “transaction,” as used in the same statute relating to the admissibility of evidence of transactions or communications with deceased persons, has often received judicial, interpretation. (See 8 Words & Phrases Jud. Def. 7062.) In Thomas Holliday v. John McKinnie, 22 Fla. 153, it was said to mean every variety of affairs which forms the subject of negotiations or actions between the parties. We have not been cited to any case in which the exact limits of the term as applied to the particular clause of the statute under consideration have been decided. The question is not important, however, for the reason that the record discloses sufficient evidence aside from that of the husband, including admissions of the plaintiffs in error, as to the value and character of the buildings and the damages thereto; and whether the examination was broader than the statute warrants, which it is not necessary to decide, the result could not have been otherwise. It is contended that the court erred in other instructions which authorized the jury to allow as damages the full value of all the property if they found it was converted. There was no dispute about the facts in reference to this; but Mrs. Brown, in her petition and upon the trial, proceeded upon the theory that after plaintiffs in error had forcibly taken her property and removed' it from the premises she had the right to consider it as theirs, and that she could compel them to take it and recover from them its full value. But she could not, by refusing to take possession of her property left on the adjoining premises, compel a conversion, and her theory as to her damages was therefore wrong. The instructions, in so far as they authorized the jury to allow for the full value of the property, were erroneous. This, however, cannot avail plaintiffs in error, for the reason that it was not prejudicial. The jury made a special finding that after the property was removed plaintiffs in error never exercised or claimed any control or possession over any of it, and by another finding refused to allow any damages for conversion. The verdict of $300' is itemized in the findings as follows: On account of damages to the largest building, $250; damages to the second building, $15; damages to the third building, $20; and to three pieces of farming implements, $15. The jury therefore appear to have arrived at substantial justice and to have allowed Mrs. Brown the only kind of damages which under the evidence and pleadings she was entitled to recover, and the verdict and findings are supported by sufficient evidence. There is no substantial dispute about any of the facts. There is therefore no occasion for another trial; and as none of the errors is prejudicial to the party complaining, or, in fact, to either party, the judgment is affirmed.

Per Curiam: Edwards shipped from Texas a car-load of strawberries containing five hundred and twenty crates, which he claimed to have sold Voight at two dollars per crate. Two hundred and eighty crates were consigned to one Cope at Topeka, according, as Edwards claims, to Voight’s directions. Voight claims that he did not purchase the berries, but they were consigned to be sold on commission. Demand for payment at the alleged purchase-price having been refused, Edwards brought suit therefor in the district court of Atchison county. The case was tried without a jury, and the court made special findings of fact favorable to Edwards and rendered judgment in his favor for the full amount claimed. Voight brings the case here. The evidence shows that the communications between the parties in regard to the berries were in part a conversation or conversations and in part telegrams exchanged which were so abbreviated as to render their meaning uncertain without explanation. The evidence as to the purport of the conversations is conflicting. Much also depends upon the weight to be given to the explanation made by Voight of the last telegram sent to him by Edwards on the day of the shipment and his reply telegram thereto. The telegrams prior to the last two exchanged before the shipment can hardly be so construed as to constitute a contract, either of purchase or for a consignment of the berries to be sold on commission. On the day of the shipment, April 22, 1905, Edwards wired Voight as follows: “Two hundred eighty Atchison; two hundred forty, Topeka. Very few Thomp-sons. Wire two dollars per crate. See letter.” Thereafter, on the same evening, Voight wired Edwards as follows: “Have money at Tyler. Will send you draft Monday.” The circumstances unexplained would indicate that these telegrams relate to the car of berries in question, and that Edwai'ds understood he was selling them for two dollars cash per crate; and the return telegram sent Saturday evening would indicate that Voight had the same understanding, and that he promised to remit the purchase-price on the Monday following. In other words, this evidence tends to prove that the minds of the parties met and a contract of sale and purchase was then consummated or then ratified. On the other hand, Voight testifies that he was indebted to Edwards on a former shipment of berries made to St. Joseph, and that his telegram related to the payment of that indebtedness. His evidence apparently was given in a halting manner, and it was the province of the trial court to weigh it. There are several assignments of error, but they all turn upon the question of fact, Did the minds of the parties meet in the consummation of the contract of purchase and sale sued on? If so, Edwards was entitled to recover; otherwise he was not. If the court had estimated the weight of the evidence differently and found in favor of Voight we could not say there was no evidence to support such finding. There is evidence to support the finding made, and the judgment is affirmed.

Per Curiam: This was a suit on a promissory note' and to foreclose a mortgage. While the suit was pending an adjustment and settlement was had between the parties, and the defendant paid to plaintiff the full amount of her claim. The plaintiff then filed a motion to dismiss the suit at her cost, without prejudice. The defendant then filed a statement in which he claimed that in the settlement a mistake had been made and that he had overpaid the amount of the indebtedness in the sum of $35.01, and objected to the dismissal of the suit. The court denied this motion, and allowed the plaintiff’s motion to dismiss the suit. The defendant alleges this as error. If there is any amount in controversy in this case it is only $35.01, and this court has no jurisdiction to consider the question upon its merits. (Gen. Stat. 1901, § 5019.) The proceeding is therefore dismissed.

The opinion of the court was delivered by Graves, J.: The plaintiff in error claims that the district court erred in holding that she took only a life-estate under her father’s will, and also in dismissing the suit. We agree with her upon both propositions. Every owner of real estate has the right to hold and enjoy it free from the inconveniences and embarrassments incident to joint use and occupation. It is a generally recognized rule of law that the owner in fee of an undivided interest in real property is entitled to partition, as a matter of right. (21 A. & E. Encycl. of L. 1146, and cases there cited; Martin v. Martin, 170 Ill. 639, 48 N. E. 924, 62 Am. St. Rep. 411, and note.) This court recently held that such a suit could be maintained against a cotenant whose interest in the land was a life-estate only. (Johnson v. Brown, 74 Kan. 346, 86 Pac. 503.) The district court erred, therefore, in denying these parties the right of partition', even if' correct in the conclusion that the plaintiff in error took a life-estate only under the will. This conclusion requires a reversal, and the consideration of other questions seems unnecessary. But as the case will be remanded for retrial it may become important in its future progress to know what estate the plaintiff in error took in the lands in controversy under the provisions of her father’s will, and we therefore deem it proper to consider that question at this time. It is conceded that she received an estate in fee to the one-half of her mother’s interest by descent. The controversy as to the extent of the estate taken by her as devisee arises upon that portion of the will which reads: “In all the real estate which I possess in Kansas or elsewhere I will to my wife a life-estate in one-third, the other two-thirds to Annie and Laura A. Stone equally. “My daughter Laura A. Stone being of an improvident disposition, I will that my wife shall hold all the property devised to her; this will be in trust for her benefit, she receiving the whole income during her life and then to her heirs, and this I do not from any lack of affection but from a sense of duty, in order that she may be provided for as long as she lives. I do not wish that there should be any inventory of my property.” It is claimed that the words “the other two-thirds to Annie and Laura A. Stone equally,” if standing alone, would give a fee simple estate to each of the daughters named, but that the subsequent paragraph has the effect to change this estate into an estate for life only, so far as Laura, the plaintiff in error, is concerned, and the district court seems.to have adopted this view. • The intention of the testator, if ascertainable from the instrument when considered as a whole, is the universally recognized guide to be followed in the construction of wills which are ambiguous or uncertain in their terms. A further rule of construction is furnished by section 7992 of the General Statutes of 1901, which reads: “Every devise of real property in any will shall be construed to convey all of the estate of the testator therein which he could lawfully devise, unless it shall clearly appear by the will that the testator intended to convey a less estate.” Where the meaning of a will is doubtful or obscure it will be presumed that the testator intended to make equal distribution among his children. (30 A. & E. Encycl. of L. 669; Munday v. Broaddus’ Ex’rs [Ky.], 40 S. W. 926; Malone v. Dobbins, 23 Pa. St. 296; Wilcox v. Beecher, 27 Conn. 134.) An examination of the will under consideration shows quite clearly that the testator intended to deal with his daughters impartially. It was plainly his desire that each of them should have the absolute ownership of the property given to her. But because of the improvidence of Laura he deemed it wise to commit the care and management of her property to her mother. Ordinarily such custody of a daughter’s funds would not be regarded as a serious obstacle to the accomplishment of her reasonable wishes. The trust here reposed in the mother was not created for the purpose of affecting the ownership of the lands; its sole object was to protect and preserve the property for the use of the devisee, without otherwise limiting or decreasing her title thereto. We conclude that the parties are entitled to partition of the lands in controversy; that Laura Stone Kin-kead, the plaintiff in error, and her sister, Annie Stone Maxwell, one of the defendants in error, each own an undivided one-half interest in the laqds, in fee simple; and, if it becomes necessary in the partition proceedings to sell the property, the purchaser will obtain an estate in fee simple to the whole of the lands purchased. The judgment of the district court is reversed, with directions to proceed with the case in accordance with the views herein expressed.

The opinion of the court was delivered by Burch, J.: The plaintiff sued the defendant for damages sustained on account of fires negligently set in the operation of the defendant’s trains. The sum demanded was $455 damages and an attorney’s fee of $125. The defendant pleaded contributory negligence. After a trial the jury returned a verdict for the plaintiff for $95 damages and an attorney’s fee of $70. The jury alsp returned the following findings of fact, upon which the defendant moved for judgment in its favor: “(1) Ques. Did Jacob Bishop plant his grove after the railroad was built and in operation? Ans. Yes. “(2) Q. Did he plant it adjoining the right of way for nearly, if not quite, half a mile east and west? A. Yes.” “(5) Q. How many acres in the whole tract? A. Thirty. “(6) Q. Are there point rows next to the right of way? A. Yes. “(7) Q. Is the land sand-hill land? A. Yes. “(8) Q. Are there sand-hills and sand-draws on the land? A. Yes.” “(10) Q. Had fires occurred in this grove before those complained of in this action? A. Yes.” “(12) Q. Did the parts burned over grow up in grass or in weeds, or in both? A. Yes. “(18) Q. Did the grass and weeds become dry and combustible in the winter of 1903 and 1904? A. Yes. “(14) Q. Did said ground also become covered to some extent with leaves and brush? A. Yes. “(15) Q. Was the grass and leaves and weeds combustible in the winter and spring, easily ignited by fire? A. Yes. “(16) Q. Did the plaintiff know or have reason to know that fires were likely to be ignited by defendant’s trains ? A. Yes. “ (17) Q. Did the plaintiff himself ever take any precautions to prevent the ignition and spread of fire in his grove? A. Yes. “(18) Q. If you answer above question ‘yes,’ what steps did he take, and at what date? A. By plowing all that could be in June and July, 1904. “(19) Q. Was the right of way at the time of the fire clear and free from combustible material? A. Yes. “(20) Q. Did the fires commence on the plaintiff’s land in said grove? A. No, it caught in pasture and burned into grove. “ (21) Q. Did they ignite in grass and weeds in said grove? A. Yes, in one count. “(22) Q. Did they run through said portions of the grove as were covered more or less by grass and weeds? A. Yes. “(23) Q. Was the grass and weeds and small brush the cause of the fire running in said grove? A. Yes.” “(25) Q. Was the timber filled with grass, weeds and brush? A. No, in part. “(26) Q. Had the parts burned over been burned over before? A. Yes.” “ (28) Q. Was the timber in the blowout and extending to the northeast corner of the grove infested with grass and weeds? A. In some places.” “(53) Q. Did he refuse to allow defendant to burn fire-guards on his pasture and plowland ? A. Yes. “ (54) Q. Did he either plow or burn fire-guards in his pasture or plowland? A.. No. “(55) Q. Did he know from experience that fires were likely to occur which would burn the dry grass and weeds unless such guards were made? A. Yes. “ (56) Q. If the guards had been made in plaintiff’s pasture and fields is it likely that his grass would not have been burned? A. Probably no. "“ (57) Q. Did plaintiff contribute to his damage by refusing to put out fire-guards or refusing to let defendant do so in his pasture and field? A. Yes. “(58) Q. Did he contribute to his damage by allowing grass and weeds to collect and dry on his premises which were likely to be set on fire by defendant in operating its railroad? A. Yes.” “(60) Q. Was plaintiff’s place infested with dry sand-burs? A. Slightly, yes.” “(63) Q. Does not defendant seek to widen fireguards beyond its right of way because fifty feet on each side of the track is not sufficient to protect adjacent prairies from fire in dry, windy weather ? A. Yes. “(64)- Q. Did plaintiff know that defendant desired to protect his premises when it applied for permission to construct fire-guards on his premises ? A. Yes. “(65) Q. Did plaintiff refuse to allow defendant to construct a fire-guard in his grove unless it would pay certain claims of plaintiff for damages? A. Yes.” The motion for judgment on the special findings was denied and judgment was entered on the general verdict. It is claimed here that the special findings show such contributory negligence on the part of the plaintiff that he ought not to recover. The petition shows that there were in all sixteen fires; that they occurred on ten different days, in three different seasons of the year; that they affected a grove of timber, three pastures, and a field of plowland, and that tracts were burned over on both sides of the railroad right of way. Evidently the jury found both for and against the plaintiff. The verdict is for a small part only of the damages prayed for, and, the. evidence not having been brought up, there is nothing to indicate what claim or claims were allowed and what were rejected. The jury were instructed respecting all the acts of contributory negligence charged in the answer and mentioned in the special findings. Hence it must be presumed that the general verdict relates to claims not affected by want of care on the part of the plaintiff, and if the special findings can be interpreted in such a way that those unfavorable to the plaintiff will not militate against some claim which the general verdict may represent the judgment may be upheld. Looking further into the petition the court discovers that it describes a grove of timber and an adjoining pasture on the north side and a cultivated field and a pasture on the south side of the defendant’s right of way. The findings numbered from 1 to 28, inclusive, clearly relate to the grove and the pasture adjacent to it on the same side of the railroad. The petition also charges that several fires occurred in the grove in Octo ber and November, 1904. The special findings do not fix the date of any fire, and for present purposes it may be assumed that the general verdict represents a claim for damages for one of the autumn, 1904, fires. In the months of June and July, 1904, the plaintiff did all the plowing he could to prevent the ignition and spread of fire in the grove. (Findings 17 and 18.) The timber of the grove was only partly filled with grass, weeds and brush. (Finding 25.) Only some places were infested with weeds and grass. (Finding 28.) Plaintiff’s place was only slightly infested with dry sand-burs. (Finding ,60.) So far as the record shows the request noted in finding 65 may have preceded the work done by the plaintiff himself in June and July, 1904, to protect his grove. It is not enough that there may have been grass and weeds and brush and sand-burs on the premises affected by the fire; there must have been a negligent accumulation and toleration of combustible material there to bar recovery. The findings referred to are not sufficient for the court to declare that the plaintiff Was negligent in the care of his grove, and it cannot be assumed that the jury took such a view. Therefore the general verdict may be supported by findings concerning land north of the track. Findings numbered 58, 54, 56 and 57 speak of plow-land and pasture, and fields and pasture. The grove is nowhere described as a field or as plowland, and it fairly may be assumed that these findings relate to premises south of the right of way. Findings 55 and 58 occur in the same connection. Findings 63 and 64 affiliate with finding 53, and from findings 19 and 20 it is safe to conclude that the fires in the grove did not come from across the right of way. Conceding, therefore, that this group of findings does show contributory negligence on the part of the plaintiff, they may be interpreted to relate to land south of the railroad, and his right to recover for fires on the other side is not affected by. them. Because the findings are indefinite and incomplete it is impossible to know whether the foregoing classification of them is correct; but it makes the findings consistent with each other and with the general verdict, and because it does this it must be adopted, the province of the court being to uphold .and not to overthrow. The judgment of the district court is affirmed.

The opinion of the court was delivered by Johnston, C. J.: This was a suit by Effie J. Beard to correct and reform a deed executed by E. Cox and his wife, Dora Cox, conveying a tract of land in the city of Wichita. She alleges that for a consideration of $6000 they agreed to convey to her a tract of land fronting on Wabash avenue, and bounded by certain fences and cement walks and coping, which they said was described as lots 1, 2, 3, 4, 5 and 6 of a certain subdivision of the city'. The consideration was paid and the conveyance made, but she soon learned that the grantors had misrepresented the facts as to the description of the property sold and had fraudulently led her to believe that the description in the deed covered the tract which they pointed out and sold, when as a matter of fact the lots described in the deed did not front on the street. It turned out that there was a strip of the tract 25£ feet wide and 150 feet long lying between the lots as described in the deed and Wabash avenue — a strip which .the grantors owned but had failed to include in the conveyance, and there was also a narrow strip of ground in the rear of the enclosure which was a part of the tract sold and which was omitted from the deed. The defendants answered that they agreed to convey no more ground than was described in the deed, and they denied the charges of fraud and misrepresentation attributed to them. Upon the testimony the court found generally in favor of Mrs. Beard, and adjudged that the deed be corrected and reformed so as to convey the entire tract which she had purchased and the Coxes had professed to sell. It is contended that the deed is not reformable because the minds of the parties did not actually meet; that while there was misapprehension- and mistake on the part of the grantee as to the extent of the land conveyed the mistake was not mutual, as the grantors did not intend to convey more than the six lots described in the deed; and they insist that a unilateral mistake is a ground for rescission but not for reformation. The equitable remedy of reformation is not- confined to cases of mutual mistakes. It is true that where mistake unmixed with fraud is .a basis of the relief asked it must be a mistake common to both parties, but it is well settled that the remedy is available where there is a mistake on oné side accompanied by fraud or other inequitable conduct on the other. It was held in Taylor v. Deverell, 43 Kan. 469, 23 Pac. 628, where the grantor by misrepresentation as to the length of a tape line used in measuring ground induced the grantee to accept a deed conveying a smaller tract of land than was agreed to be conveyed, that the mistake of one party in connection with the fraud of the other warranted the reformation of the instrument. It is argued by the grantors that they at least did not intend to convey more than was described, and that therefore a reformation will effect what was not intended and will amount to the making of a new contract. According to the testimony it was the intention of Mrs. Beard to buy, and the expressed purpose of the Coxes to sell and convey, the entire tract. Having agreed to sell all of the tract, and having led the grantee to believe the deed would convey it, they cannot well insist that equitable relief should be barred because they did not mean what they said and their expressed intention was not their honest intention. They knew the correct description of the land sold and that the description employed in the deed did not cover or convey it. They also knew that the grantee understood that she was buying all the tract within the designated boundaries and that it fronted on a street, as the walks and other improvements indicated. They led the grantee to believe that the description in the deed, conveyed all that was purchased, and took advantage of the mistake into which she was led by inducing her to accept the deed for a less quantity than was agreed to be conveyed and for which a consideration was paid. The case comes fairly within the well-established rule that a deed is reformable where, by the mistake of one party and the fraud of another, there is omitted from it land which it was stipulated should be conveyed. (Welles v. Yates, 44 N. Y. 525; Husted v. Van Ness, 158 N. Y. 104, 52 N. E. 645; Kyle v. Fehley, 81 Wis. 67, 51 N. W. 257, 29 Am. St. Rep. 866; Place v. Johnson, 20 Minn. 219, 229; Crookston Imp. Co. v. Marshall, 57 Minn. 333, 59 N. W. 294, 47 Am. St. Rep. 612; Simmons Creek Coal Company v. Doran, 142 U. S. 417, 12 Sup. Ct. 239, 35 L. Ed. 1063; Higgins v. Parsons, 65 Cal. 280, 3 Pac. 881; Kinney v. Ensminger, 87 Ala. 340, 6 South. 72; Jones v. Warren, 134 N. C. 390, 46 S. E. 740; Archer v. California Lumber Co., 24 Ore. 341, 33 Pac. 526; McCormick Harv. Mach. Co. v. Woulph, 11 S. Dak. 252, 76 N. W. 939; Goodenow v. Curtis, 18 Mich. 298; The Citizens’ National Bank of Attica v. Judy et al., 146 Ind. 322, 43 N. E. 259; Stanford v. Gates, Townsend & Co., 21 Mont. 277, 53 Pac. 749; Dane v. Derber, 28 Wis. 216; 24 A. & E. Encycl. of L. 652; 2 Current Law, 1492; 4 Pom. Eq. Jur., 3d ed., § 1376; 2 Page, Cont. § 1239; 42 Cent. Dig. c. 1111.) Because Mrs. Cox did not sign the preliminary contract, and only signed the deed, it is sai(d that she never gave that joint consent necessary to the alienation of her homestead. Aside from the fact that there is testimony that she herself represented to the grantee that the enclosure marked the boundaries of the tract they were selling, she stated on the witness-stand that she regarded the six lots described in the deed as her homestead, and that the strips omitted from the deed were separate and distinct pieces of ground. There is nothing substantial in this claim. The judgment of the district court is affirmed.

The opinion of the court was delivered by Johnston, C. J.: The Saline River' Land & Mineral Company leased a tract of land known as the Barnes ranch to Gilbert Brothers at an annual cash rental of $2500 for a term of five years, beginning April 1, 1902. On October 1, 1903, Gilbert Brothers entered into an agreement with Marshall & Toliver, of Lincoln county, Kansas, allowing them to stock and use the leased premises for a-certain price per head for the cattle that should be pastured and fed there. The arrangement was to continue for three years, but it was stipulated that it might be sooner abandoned by mutual consent.- In this agreement no mention was made of the Saline River Land & Mineral Company, which owned the ranch, nor of its lease to Gilbert Brothers. Some time later Mr. Toliver, of the firm of Marshall & Toliver, wrote the following letter to the company: “N. Topeka, Kan., October 6, 1903. “The Saline River Land & Mineral Company, Rochester, N. Y.: “Gentlemen — Mr. Gilbert advises me that he has had some correspondence with you in regard to the lease on the Barnes ranch, and requests me to give you some information on this line as to the interests that Mr. Marshall and myself have in the matter. A brief statement of the facts is that we have agreed with Mr. Gilbert to stock the ranch for a term of three years (unless sooner dissolved by mutual consent) with not more than 800 head of cattle, and to allow him fifty cents per month for the care and keeping of this ranch and cattle. Mr. Gilbert requests that out of any money due him we shall first pay you the rent due you under the lease, to wit, $2500 per year, beginning October 1, 1903, and an additional sum of $300 per year for the three years, which total sum of $900 he represents is now due you from him. If the payments as above enumerated are satisfactory to you, we will make such payments to you direct, as the same accrue under their lease with you, and pay you the additional sum of $300 per year for the three years as it accrues under our contract with Gilbert Brothers, the first payment accruing on October 1, 1904. (Signed) Joseph I. Toliver.” In November, 1904, a little more than a year after Marshall & Toliver entered into the contract with Gilbert Brothers, the company brought an action in Ellis county against Gilbert Brothers, the lessees, and joined Marshall & Toliver with them as defendants, asking for the recovery of unpaid rent to the amount of $2800. The petition contained two causes of action — one against all of the defendants for $2500, and the other against Marshall & Toliver for $300. A summons was issued and served on a member of the firm of Gilbert Brothers in the county in which the action was brought, and another summons was issued .and sent to the sheriff of Lincoln county and there served upon A. Marshall. No other service was made, and the only defendant who appeared in the action was Marshall, who made a special appearance to question the validity of the service upon him. His motion to quash the service was “based on the ground that he was not rightly sued in Ellis county, but the motion was denied, and of this ruling complaint is made. This was an ordinary transitory action brought for the recovery of money. Such an action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned. (Code, § 55; Gen. Stat. 1901, § 4485.) In some cases one or more defendants may be summoned in a county other than that in which the action is begun, but this cannot be done unless the action is rightly brought against such defendants. (Code, § 60;- Gen. Stat. 1901, § 4490.) It is not enough that a person be named as one of the defendants in an action, but he must be rightly sued with the other defendants in such action. In other words, the non-resident defendant must be rightly joined with the resident defendant or with the one served in the county in which the action is brought. (Brenner v. Egly, 23 Kan. 123; Rullman v. Hulse, 32 Kan. 598, 5 Pac. 176; Rullman v. Hulse, 33 Kan. 670, 7 Pac. 210; McConnell v. Hicks, 64 Kan. 828, 68 Pac. 651.) In the case of Stull Bros. v. Powell, 70 Neb. 152, 97 N. W. 249, it was ruled that “to authorize summons to another county in a merely personal action for money, there must be an actual right to join the resident and non-resident defendants.” (Syllabus.) It was held by the supreme court of Kentucky, in Basye v. Brown, &c., 78 Ky. 553, that service of process on one improperly joined as a defendant gives the court no jurisdiction to render judgment against a defendant served in a county other than that in which the action is pending. (See, also, Dunn v. Hazlett, 4 Ohio St. 435; Penney v. Bryant, 70 Neb. 127, 96 N. W. 1033; Ross v. Battle, 117 Ga. 877, 45 S. E. 252.) In this case the. Gilberts, who were duly served in Ellis county, were liable to the company under a written lease. Marshall & Toliver were not parties to that contract, but, if liable at all to the company, it was upon the written guaranty signed by Toliver agreeing to pay certain obligations of Gilbert Brothers to the company.- Gilbert Brothers were not liable on the Toliver agreement, and Marshall & Toliver, not being parties to the lease, were not liable upon that instrument. The two firms were not jointly liable on either of the instruments set up in the petition, and it follows that they were not properly joined as defendants. A guarantor whose liability arises on the same instrument may - be joined with the maker or principal, but where each is bound by a separate and several contract they cannot be united as defendants. (Code, § 39; Gen. Stat. 1901, § 4467.) In the case of Lindh v. Crowley, 26 Kan. 47, it was held that a cause of action against several makers of a promissory note could not be joined with a cause of action against another maker of the same note whose-obligation had been merged into a judgment. In Griffin v. The County of Grundy et al., 10 Iowa, 226, a county issued a warrant to a payee who assigned it to another and by a separate writing guaranteed that the warrant would be paid on presentation when it was due. In an action against both it was held that the liability of the county was on the warrant, while the liability of the other party was upon another instrument, namely, the written guaranty, and hence that they could not be sued together. In Tourtelott and Another v. Junkin and Others, 4 Blackf. (Ind.) 484, the supreme court of Indiana had before it a case somewhat like the present one, where one party rented a tract of land from another and agreed to pay the rent at fixed times as it became due. Later, a different party by another contract obligated himself as surety that the lessee would pay the rent when it was due.' The court held that these contracts were entirely separate and distinct, and that as the surety was not a party to the lease he could not be sued with the lessee. The general theory of the code is that in transitory actions a party is entitled to be sued in the county where he resides or may be served, unless he is jointly liable with a codefendant who is properly served in the county where the action is brought. But a plaintiff cannot take him to a different county by making him a mere nominal party or by a misjoinder. The fact that separate and several contracts of defendants relate to the same subject does not warrant joining them in one action and the summoning of one of them in a county other than the one in which the action was brought. In the case of Stewart v. Rosengren, 66 Neb. 445, 92 N. W. 586, the supreme court of Nebraska said: “Causes of action against different persons upon separate hnd - distinct several contracts cannot be joined in one action. The causes of action joined must affect all the parties to the action. Bliss, Code Plead. § 117. The mere fact that two distinct and several contracts with two different persons are for the performance of the same service will not bring the causes of action based thereon within this rule. Each is liable upon his own several contract, and bound by its terms, without regard to the other.” (Page 448. See, also, Phalen v. Dingee, 4 E. D. Smith [N. Y.] 379; Addicken v. Schrubbe, 45 Iowa, 315.) We think error was committed in denying the motion to quash the service of the summons on Marshall, and for that reason the judgment .against Marshall is reversed and the cause remanded for further proceedings.

The opinion of the court was delivered by Parker, J.: Edna Bradbury, claiming to be the owner of three tracts of land located in Crawford county under and by virtue of as many quitclaim deeds executed by the owner of such property in his lifetime, brought two actions in the district court of such county against the heirs-at-law of her alleged grantor and his administrator with the will annexed to quiet her title in the lands described in the instruments on which she founded her causes of actions. By appropriate pleadings her right, title, and interest in the property was challenged and in due time the two cases came on for trial with all parties to the two actions agreeing that the testimony adduced should be considered by the trial court as the evidence in both cases. At the conclusion of the joint trials separate judgments were rendered in which the deeds relied on by Mrs. Bradbury in each case were canceled and set aside and the title to the real estate therein described, excepting such interest therein as the parties might be able to establish as heirs or devisees of Adam H. Adamson, deceased, was quieted in the name of the administrator with the will annexed of the estate of such deceased person. Mrs. Bradbury then filed motions for a new trial. When these motions were overruled she perfected appeals in both cases, since consolidated in this court, and now seeks a reversal of the two judgments rendered against her. Before proceeding further it should perhaps be stated, as will presently be disclosed, that other issues pertaining to the rights of some of the defendants in each of the two cases under and by virtue of certain warranty deeds in which they were also named as grantees of the involved real estate were settled and determined by the trial court adversely to their interests by findings to the effect such deeds had never been delivered. Likewise added that reference to those issues has purposely been ommitted in the foregoing statement for the reason no complaint is made to portions of the judgments relating to them and they are not subject to appellate review. The lengthy pleadings filed by the respective parties are not in question and no useful purpose would be served by detailing their allegations. It suffices to say that so far as appellate review is concerned the all decisive question they raise is whether there was a valid and effectual delivery to plaintiff, by Adam H. Adamson in his lifetime, of the quitclaim deeds on which she bases her right to the relief sought in the two actions she instituted in the district court. Pursuant to requests therefore the trial court made findings of fact and conclusions of law on which it based its two judgments. The findings of fact in No. 37,663, although some of them are challenged and require consideration presently, fully disclose the factual situation on which the trial court’s judgment in that case was based. Except for the parties and a description of the real estate involved they are substantially the same as those made in No. 37,664 and will serve to reveal the factual situation on which its judgment depends. On that account such findings will be quoted at length. They read: “1. The plaintiff, Edna Bradbury, is the stepdaughter of Adam H. Adam-son, who was also known as A. H. Adamson. “2. Adam H. Adamson died in Crawford County, Kansas, on October 21, 1947, leaving as his only heirs at law the above named defendants, Walter Adamson and G. V. Adamson, his brothers, Mrs. Lydia Wise, Mrs. Buth Drummond, Mrs. Jessie Capps and Mrs. Eunice Meacham, his sisters and his niece, Elva Scott. “3. That the defendant, J. P. Hinkle, is the duly appointed, qualified and acting administrator with will annexed of the estate of Adam H. Adamson, deceased. “4. That the said Adam H. Adamson and the mother of plaintiff were married in 1912 when plaintiff was about eleven years of age. That after her mother’s marriage to Adam H. Adamson, the plaintiff lived with her mother and Adamson in Arcadia, Kansas, until plaintiff’s marriage to Fred Bradbury on May 20, 1920. Adam H. Adamson was a doctor and lived in Arcadia, Kansas, until his death. “After her mother’s marriage to Dr. Adamson, plaintiff went under the name of Edna Adamson and was married under that name at Arcadia, Kansas. Dr. Adamson had no children of his own but treated the plaintiff as a daughter. After plaintiff’s marriage to Fred Bradbury, the plaintiff and her husband lived with the Adamsons for a few months. Plaintiff an'd her husband moved to Kansas City, Missouri, about three years after their marriage where her husband was employed until they moved back to Arcadia, Kansas, in July, 1946. “Dr. Adamson and his wife frequently visited the plaintiff in Kansas City. “5. The court further finds that plaintiff’s mother died in Arcadia, Kansas, on January 7, 1940. Plaintiff was living in Kansas City at that time, but plaintiff and her husband came to Arcadia before her death and remained at the home of Dr. Adamson after the funeral for several days. “6. The court further finds that on the afternoon of January 17, 1940, ten days after the death of plaintiff’s mother, Mrs. Adamson, Adam H. Adamson signed and acknowledged a Quit Claim Deed, in which the plaintiff, Edna Bradbury, was named grantee, to the following described real estate situated in Crawford County, Kansas, to-wit: “The northwest Quarter (NWlá) of the Northwest Quarter (NW!4) and the South Half (S%) of the said Northwest Quarter (NW!4) all in Section Thirty-five (35), Township Twenty-seven (27), Range Twenty-five (25) East of the Sixth Principal Meridian, the same being 120 acres, more or less, “which Quit Claim Deed was filed for record and recorded in Book 198 on page 131 in the office of the Register of Deeds of Crawford County, Kansas, on October 23, 1947. “That at the same time and on January 17, 1940, the said Adam H. Adam-son signed and acknowledged a certain other Quit Claim Deed, in which the plaintiff, Edna Bradbury was named grantee, to the real estate described in the ‘Second cause of action’ in plaintiff’s first amended petition filed herein, which Quit Claim Deed was filed for record in the office of the Register of Deeds of Crawford County, Kansas, on October 27, 1947, and recorded in Book 198 on page 179 in said office. “That at the same time and on January 17, 1940, the said Adam-H. Adam-son signed and acknowledged a certain other Quit Claim Deed, in which the plaintiff, Edna Bradbury, was named grantee, to certain real estate described therein, which said deed was filed for record in the office of the Register of Deeds of Crawford County, Kansas, on October 23, 1947, and recorded in Book 198 on page 133 in said office. “That these three Quit Claim Deeds were prepared by G. W. Corporon, a lawyer and Notary Public, at his office across the street from Dr. Adamson’s office in Arcadia, Kansas. That the grantor in said deeds, Adam H. Adamson, signed and acknowledged the execution of said deeds before the said G. W. Corporon as Notary Public on January 17, 1940. “He also at the time told the plaintiff that he was changing the beneficiary in a $5,000.00 policy of life insurance, which he held in the Occidental Insurance Company, and did change the policy making the plaintiff, Edna Bradbury, the beneficiary. He also told her he was going to change some bonds that were made payable to himself and Edna’s mother. “7. The court finds that subsequent to September 17, 1940, on approximately three occasions, Adam H. Adamson said to Berney Sheets, a tenant on one of the properties, when Sheets attempted to buy the farm from Dr. Adamson, that he would not sell the farm, that it was his ace in the hole, and that he had given it or was going to give it to Edna and Freddie. “8. The court further finds that in January, 1940, after the death of plain tiff’s mother, Dr. Adamson opened a joint account in the name of ‘A. H. Adamson or Edna Bradbury’ in The Home State Bank at Arcadia, Kansas. That numerous deposits were made in this account and all deposits were made in the name of ‘A. H. Adamson or Edna Bradbury.’ This joint account remained in the bank all the time after January 29, 1940, until after Dr. Adamson died, and then Edna Bradbury withdrew the money in said account after Dr. Adamson’s death by her check. “The court further finds that Dr. Adamson told Charles Glenn Fowler, Cashier of The Home State Bank, Arcadia, that if anything happened to him or he got sick, Mrs. Bradbury could come in and check on the joint account. During the lifetime of Dr. Adamson neither Mr. nor Mrs. Bradbury ever made any deposits or any withdrawals on the account. “9. The court further finds that on October 16, 1947, the deceased signed and acknowledged a Warranty Deed to the real estate described in finding of fact No. 6, supra, in which Dr. Adamson’s sister Lydia Wise, and her husband, Dutch Wise, were named grantees for life with remainder to John William Adamson. “10. The court further finds that on or about October 16, 1947, the deceased, Adam H. Adamson, signed and acknowledged a Warranty Deed to the real estate described in the second cause of action in plaintiff’s first amended petition, and in Exhibit B attached thereto, in which his sister, Lydia Wise and her husband, Dutch Wise, were named grantees of a life estate with remainder to John William Adamson, a nephew of Dr. Adamson. “11. The court further finds that there was no valid delivery of the Warranty Deeds above described. The court finds that after the above described Warranty Deeds to Lydia and Dutch Wise has been signed and acknowledged by Adam H. Adamson, he told other persons that he had made the deeds and that he now had things the way he wanted them. “12. The court further finds that on or about July 31, 1942, the deceased duly executed and acknowledged a will, disposing of all of his property, both real and personal, which has not been found. “13. The court further finds that up until the time of his death, the deceased exercised full dominion over the above described real estate. He collected all rents and profits, paid all the taxes, handled any and all business with tenants, including repairs and division of crops. He executed and signed leases of the real estate as owner. Neither the Plaintiff, Edna Bradbury, nor her husband ever reported the real estate for income tax purposes, nor reported any income therefrom. During the lifetime of the deceased they collected no rents or profits, paid no taxes on the property, and had nothing whatever to do with the leasing or operation of the property. The deceased collected benefits from farm agencies of the Federal Government as owner of the real estate above described. Also, as owner, he bought insurance on the buildings located on this real estate and paid the premiums. “14. The court further finds that the plaintiff did not cause the Quit Claim Deeds to her, signed in 1940, to be recorded until October 23, 1947, two days after the death of the grantor. “15. The court further finds that the plaintiff lived in a home immediately adjoining that of the deceased, and was present at the time of the death of the •deceased, so that she had opportunity to and did go through the personal effects :and papers of the deceased. “16. From all of the above circumstances the court finds the fact to be that the Quit Claim Deeds described in plaintiff’s first amended petition and in Exhibits A and B attached thereto, which were signed and acknowledged by •the deceased, Adam H. Adamson, on January 17, 1940, were never delivered •during the lifetime of the deceased, either to the plaintiff or to any other ;person.” Along with the foregoing findings the court returned the following •conclusions of law: “1. The court concludes that there was never any valid or effectual delivery •of the Quit Claim Deeds described in plaintiff’s first amended petition and in Exhibits A and B attached thereto, either to the plaintiff or to any other person; •that the said Quit Claim Deeds to the plaintiff are null and void and of no force and effect, and should be cancelled, set aside and held of no force and •effect; and that judgment should therefore be entered generally in favor of the •defendants. “2. The court further concludes that there was no valid or effectual delivery ■of the Warranty Deeds to Lydia Wise and her husband, Dutch Wise, either to The said defendants or to any other person, and that the said Warranty Deeds ■are null and void and of no force and effect.” For informative purposes it should be stated that similar conclusions of law, except for the fact they have reference to the real estate ■and the parties therein involved, were made by the trial court in •case No. 37,664. Having fully set forth the prevailing factual situations and the nature of the judgments in each of the two cases in the court below we now turn to consideration of the errors assigned by appellant and urged by her as grounds for a reversal of such judgments. As "we do so it will be noted that throughout the remainder of this opinion the issues raised by the parties can and will be disposed of without reference to multiple proceedings or judgments and in the ¡same manner as if this appeal involved a single action. At the outset it will be helpful to state a few fundamental principles governing determination of the questions about to be considered. One of such rules, well-established in this jurisdiction, is that "before a deed can operate as a valid transfer of title there must be a delivery of the instrument which becomes effective during the life of the grantor named therein (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Burgin v. Newman, 160 Kan. 592, 164 P. 2d 119). However, it is also the rule that possession by a grantee of a deed absolute in form is prima facie evidence of delivery which can be overthrown only by clear and convincing evidence and that the burden of showing nondelivery is upon the party who questions the delivery (Burgin v. Newman, supra). Another rule is that an issue of delivery or nondelivery of a deed depends largely upon intention and when the evidence on that question is in controversy it presents a question of fact to be determined by a jury or the trial court as the case may be. (Burch v. Burget, 130 Kan. 243, 285 Pac. 574; Sample v. Reed, 130 Kan. 524, 287 Pac. 614.) When the facts are not controverted the issue of delivery must be determined by the trial court as a question of law (Hoard v. Jones, 119 Kan. 138, 237 Pac. 888). Still another is that on appellate review where trial court findings of fact are challenged such findings will not be disturbed if supported by substantial competent evidence and in determining that question this court does not weigh the evidence but is concerned only with whether it supports or tends to support the findings. (Pearcy v. Williams, 163 Kan. 439, 183 P. 2d 243; Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899.) Notwithstanding the rule just stated whenever the question whether findings of a trial court are supported by substantial evidence is submitted to this court it is presented with a question of law as distinguished from a question of fact and will examine the record to see if there is any such evidence to sustain the findings (Hush v. Reeder, 150 Kan. 567, 577, 95 P. 2d 313; Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79). In the court below appellant moved to set aside certain of the findings of fact together with conclusion of law No. 1 and now insists the overruling of that motion was error. We shall first give consideration to the factual findings complained of on which over-all finding No. 16 and the conclusion of law just mentioned are based. It is first urged that finding No. 7 to the effect Mr. Adamson had told Berney Sheets “that he had given it (the land) or was going to give it to Edna and Freddie,” is contrary to the evidence and not supported by any evidence. It is true Sheets testified positively that on two or three occasions Adamson had told him he had given the land to the parties just mentioned. However, on cross-examination he was asked if he had not told one of appellees’ counsel that Mr. Adamson had told him he was going to give it to Edna and Freddie. In response to such question Sheets answered, “He might not have used the exact words, but that was close to it.” The trial court had an opportunity to observe the attitude of the witness just mentioned, form its own opinion as to the truthfulness of his answers and draw any reasonable inferences therefrom. No doubt, in view of the quoted answer, there was some question in its mind as to the import to be given his testimony on the particular point in question. In such a situation we cannot say the finding in its present form is contrary to the evidence or unsupported by any testimony whatsoever. The last paragraph of finding No.. 8 is also challenged on identical grounds. There is no merit in this claim. The finding is justified by the testimony of Fowler, the cashier and managing agent of the bank, who stated he had no knowledge of appellant writing a check on the joint account or of her ever having made a deposit to such account. The fact is appellant, who appeared as a witness in her own behalf, made no attempt to deny the banker’s statement and her own husband, on cross-examination, admitted she had never written a check on the account until after Adamson’s death. A portion of finding No. 11 to the effect that after signing and acknowledging the warranty deeds to Lydia and Dutch Wise, Mr. Adamson had told other persons he had made such deeds and that he now had things the way he wanted is attacked on the ground it is contrary to the evidence. The record discloses Adamson had told at least three, or perhaps more, persons he had made the deeds. It reveals he told Mr. Skidmore, manager of the hardware store, that he hoped what he had done took care of everything and that he had fixed it up so the lawyers would not get his property. It also shows, that after telling Mr. Adams, the manager of the town garage, he had deeded the land to his sisters, and specifically mentioning one of the tracts, he said this is one time the Adamson sisters get what is coming to them. In the face of all these statements we do not believe the complaint made against finding 11 can be upheld. The portion of finding No. 13 stating Mr. Adamson bought insurance on the buildings, located on the involved real estate is also questioned. On examination of the record we find that Mr. Moonahan, an insurance agent, testified he wrote insurance for Mr. Adamson on buildings located on a farm one mile west and five miles south of Arcadia and on another farm one mile west and a mile north of the same town. That testimony more than suffices to uphold the finding. Appellant’s principal assignment of error, as heretofore indicated, attacks finding No. 16 and conclusion of law No. 1. She asserts the trial court erred in finding that the three deeds described in her amended petition were never delivered to her during the lifetime of Mr. Adamson, the grantor therein, for the reason such finding, and we might add the conclusion of law with respect thereto, is not based on any substantial competent evidence. Thus, in view of what has been heretofore stated and with the findings approved, it appears the basic foundation on which the last error assigned depends is that no one of the facts set forth in such finding or all of them when considered together are substantial enough in character to warrant the trial court’s conclusion that even though the deeds in question were in the possession of appellant they had never been delivered to her in Mr. Adamson’s lifetime and hence conveyed no title. Decision of this question, as we have heretofore indicated, is purely a question of law. In support of the foregoing contention much stress is placed by appellant on the rule a deed in possession can only be overthrown by clear and convincing evidence. That we concede. Even so it has application to the trial court and the function of this court on appellate review is limited to ascertaining if there is any substantial evidence to sustain the decision of the tribunal authorized to ascertain the controverted issues of fact. Long ago in Klein v. Blackshere, 113 Kan. 539, 541, 215 Pac. 315, we said: “The rule that certain matters require more than a mere preponderance of evidence for their proof is one to be applied by the trial court and ‘where the findings are supported by competent and substantial testimony it will be presumed that the district court applied the proper test in weighing the evidence and finding of facts.’ (Woodell v. Allbrecht, 80 Kan. 736, 104 Pac. 559, Syl.) ‘Even in a criminal case, where the guilt of the defendant must be proven beyond a reasonable doubt, a verdict supported by substantial testimony is conclusive upon the reviewing court.’ (Leverton v. Rork, 74 Kan. 832, 85 Pac. 800.)” For some of our decisions to the same effect see Hoover v. Hopkins, 122 Kan. 65, 251 Pac. 411; Shoemaker v. Davis, 146 Kan. 909, 915, 73 P. 2d 1043; Kull v. Pearl, 147 Kan. 329, 337, 76 P. 2d 790; Klusmire v. Dixon, 150 Kan. 871, 875, 96 P. 2d 634; Jones v. Jones, 161 Kan. 284, 296, 167 P. 2d 634 and Sanders v. Visser, 165 Kan. 336, 339, 194 P. 2d 511. Appellant insists Rohr v. Alexander, 57 Kan. 381, 46 Pac. 699; Norton v. Collins, 81 Kan. 33, 105 Pac. 26; Zeitlow v. Zeitlow, 84 Kan. 713, 115 Pac. 573; Boss v. Perkins, 93 Kan. 579, 144 Pac. 1004; Maloney v. Cameron, 98 Kan. 620, 159 Pac. 19; Elliott v. Hoffhine, 97 Kan. 26, 154 Pac. 225 and Burgin v. Newman, 160 Kan. 592, 164 P. 2d 119, uphold her portion on this assignment of error. We are not disposed to detail the evidence in the foregoing cases or point out the particulars in which the facts therein involved are distinguishable from those in the case at bar. It suffices to say they all deal with the sufficiency of evidence to uphold trial court findings to the effect, deeds were delivered and that none of them goes so far as to be susceptible of a construction the facts found to exist in the instant case do not warrant a conclusion the deeds involved were never delivered. Another decision cited is Small v. Small, 99 Kan. 321, 161 Pac. 598. It was an action to set aside three deeds to real estate on grounds of nondelivery. In that action a demurrer was sustained to evidence of the plaintiff who had married the grantor six years after he had executed a deed to the real estate and who, after the marriage, had executed two quitclaim deeds to that same property to the grantees named in the deed executed by her husband. Moreover the plaintiff, who testified in her own behalf, would not say when questioned that she ever believed her husband owned the property. It is true, that in such action as appellant points out, there was some unsatisfactory evidence touching exercise of proprietorship by the original grantor over the land in question and that in the opinion the evidence is commented upon as merely furnishing a basis for speculation. That statement must, however, be considered as made in the light of testimony of the character there involved and is not to be regarded as authority for a conclusion that acts evidencing ownership of real estate on the part of a decedent are not entitled to weight in determining whether he had parted with his title in his life time by delivery of a deed. Hoard v. Jones, 119 Kan. 138, 237 Pac. 888, is also relied on. There a trial court’s finding that a deed had not been delivered was set aside by this court on appellate leview. That this case does not sustain appellant’s position and is clearly distinguishable is evidenced by the statement appearing on page 156 of its opinion where it is said: “. . . The court, in reaching the conclusion the deed had not been delivered, placed much stress upon the fact that William Hoard continued to use and occupy the premises during his life, and received the rents and paid the taxes and insurance thereon. In view of the fact that by the specific terms of the deed he reserved the use and income of the property during his life and agreed to pay the taxes thereon, no force should have been given to that circumstance. This should have been given the opposite construction from that placed upon it by the court. The rule of law is that in deed of gifts to children or relatives, the reservation by the grantor of the use of the property during his lifetime is evidence of an intention to deliver the instrument before his death, for there could be no purpose in placing such a reservation in the deed if it were not delivered in his lifetime. (Young v. Mc-Williams, 75 Kan. 243, 250, 89 Pac. 12, and cases there cited; Zeitlow v. Zeitlow, 84 Kan. 713, 717, 115 Pac. 573.)” More in point than any of the cases heretofore cited are Stanley v. Martin, 137 Kan. 894, 22 P. 2d 951 and Staats v. Staats, 148 Kan. 808, 84 P. 2d 842, where findings of fact, far less extensive than those here involved, were approved and held to sustain judgments holding deeds in controversy had never been delivered. In the Stanley case we held: “. . . Under the circumstances stated in the opinion, the oral and written statements of the mother touching her sole ownership of the properties and that she was receiving the income therefrom, made by her long after the deeds were dated and acknowledged by her, and likewise made by her for the purpose of procuring extensions ■ of credit, were competent on the issue of fact whether the deeds were delivered to the grantees in the mother’s lifetime, . . .” (Syl.) At page 810 of the opinion in the Staats case we said: “However, we think the evidence for plaintiff, including the potent significance that should be given to the many years’ exercise of the prerogatives of ownership by Abram after the deed was executed, down almost to the end of his fife, and including the testimony of plaintiff (to which the trial court apparently gave full credence) touching the purpose for which the deed was executed — all these probative details made a prima facie case for plaintiff that no regular, valid delivery of the deed had been made to Lature Staats or to any of the grantees during the lifetime of Abram. No error is made to appear in the trial court’s ruling on the demurrer.” It is true, as appellant insists, that appellant’s husband testified that the deeds in question were delivered to her by Mr. Adamson and that two of her friends, who were her neighbors when she lived for a time in Kansas City, Mo., testified that such deeds were seen by them in her possession on several occasions. It is likewise true, as she argues, that this was the only direct testimony before the trial court with respect to delivery and possession of such instruments. However, such a concession does not mean that the trial court was bound to believe either appellant’s husband or her friends. As trier of the facts it had a right to disbelieve and entirely disregard their testimony. We must assume it exercised that pre rogative for in the very nature of its findings and judgment there inheres the conclusion their testimony was not given credence. Once it is concluded appellant’s evidence as to delivery was properly rejected, and .we are compelled to so regard it, we have little difficulty in concluding that under the decisions heretofore referred to the extensive findings of the trial court, which need not be here repeated because they are quoted in toto, are substantial in character and uphold its decision the deeds were never delivered. Finally appellant charges the trial court erred in overruling her motion for a new trial. In giving this contention consideration we shall not refer to grounds of the motion already disposed of or those which are neither briefed nor argued. First it is urged the court erred in admitting a photostatic copy ■of Mr. Adamson’s will for the reason it did not prove or tend to prove the delivery of the deeds in question and next contended there was error in admitting testimony of appellees’ witness Corporon with reference to a will drawn by him for Mr. Adamson about July ■31, 1942. Assuming, without conceding, there is any merit in these ■contentions the record here does not require their determination. Appellant did not move to strike out the evidence of which she now ■complains. Under such circumstances there is no presumption it was considered or entered into the final decision of the trial court (In re Estate of Walker, 160 Kan. 461, 163 P. 2d 359 and In re Estate of Wittman, 161 Kan. 398, 168 P. 2d 541). Another contention is based upon the premise the burden of showing nondelivery of the deeds was upon the appellees whereas in the trial of the action the appellant actually assumed such burden. This claim has no merit. When at a trial a party voluntarily assumes the burden of proof it is not cause for the reversal by this ■court of a judgment rendered against him that the burden of proof was cast by the pleadings on the other party (Parker v. Richolson, 46 Kan. 283, 26 Pac. 729). Moreover, this case was tried by the court and we must assume that it knew on whom the burden rested and that in resolving the issues it was placed where it belonged. Appellant fails, and we are not disposed, to labor her claim that a new trial should have been granted on the ground of newly discovered evidence. The witnesses produced were new but the character of their evidence was not. It was purely cumulative. Besides there was no showing of diligence on the part of appellant in obtaining and producing the testimony at the trial. New trials are not granted under such conditions and circumstances (Bond v. Bond, 154 Kan. 358, 118 P. 2d 549). The judgments rendered by the trial court in case No. 37,663 and. case No. 37,664, are each affirmed.

The opinion of the court was delivered by Smith, J.: This is an action to set aside a tax deed to real estate, and to quiet title to rights and interests claimed in the real estate. The trial court overruled defendants’ demurrer to plaintiffs’ petition. Defendants have appealed. The action has been in this court before. At that time we reversed the order of the trial court overruling defendants’ demurrer and ordered judgment for defendants. On consideration of plaintiffs’ petition for a rehearing we modified our opinion by making it provide merely that the demurrer be sustained. We did not order judgment. (See Sinclair Prairie Oil Co. v. Worcester, 163 Kan. 540, 183 P. 2d 947.) Plaintiffs filed an amended petition. Defendants’ motion to make definite and certain was allowed in part and overruled'in part. A second amended petition was filed and defendants’ demurrer to it was overruled. This appeal is from that order. The appeal was submitted after consultation. We ordered a reargument. The. appeal was reargued and resubmitted. The rights of the parties turn in the main on the validity of, and if valid the interpretation to be given, certain written instruments entered into between various parties, including the parties to this action involving mineral rights in two quarter sections of land. In the former decision we pointed out several particulars in which the basic instruments were invalid under the allegation of the petition we are considering. When the case was reversed and remanded to the trial court the plaintiffs in their amended petition sought to meet these deficiencies. The outcome of this appeal will depend on whether they were successful in that regard. The petition in the former appeal was denominated “Petition To Remove Cloud.” The first paragraph identified the parties. The second paragraph alleged the plaintiffs were .the owners of mineral operating rights and mineral interests in two described quarter sections of land in Graham county, which arose from .two written instruments, both executed between the Landowners Oil Association and defendants’ predecessors in Title 1 under date of April 24, 1928, and the other under date of May 22, 1931. It may be stated here parenthetically that aside from the date and the two other inconsequential details these two instruments were identical. They will be referred to herein as Exhibits “A” and “B.” The petition then alleged that under the terms of these instruments the association became the owner of the mineral operating rights to produce oil and gas and an undivided seven-eighths work ing interest in the oil and gas that might be produced from the land in question and in addition was made trustee for the members of the one-eighth royalty pool, as specified in the instruments, with certain powers in trust, all to continue for twenty years from the date of each instrument or as long thereafter as oil or gas might be produced. The petition then alleged that by two written instruments under date of August 5, 1929, Landowners Oil Association assigned to Central Royalty Company an undivided one-half of its operating rights and an undivided one-half interest in the reserved royalty. These two instruments will be referred to as' Exhibits “C” and “D”; that thereafter on October 1, 1936, the Central Royalty Company assigned to plaintiffs, Sinclair Prairie Oil Company, all its interest. This instrument will be referred to as Exhibit “E.” Thereafter on February 16, 1942, the Landowners Oil Association delivered to Sinclair Prairie Oil Company a conveyance confirming its assignment of August 5 to the Central Royalty Company, stating it was its intention that Sinclair Prairie Oil Company should have all the interest conveyed to it by the Landowners Oil Association. This instrument will be referred to herein as Exhibit “F.” It should be stated here parenthetically the foregoing instrument was apparently given so that Sinclair would be certain to have whatever interest had been conveyed to Central by the Landowners’ conveyance on August 5, 1929. The petition then alleged that in August, 1940, defendants in this action, who had succeeded the original grantors in interest in the land in question, obtained a tax deed covering the taxes for 1933, 1934, 1937 and 1938 attempted to be assessed upon mineral interests in the land in question against Central Royalty, Landowners Oil Association and Sinclair Prairie Oil Company; that the defendants, Worcester and the Federal Land Bank and the Federal Farm Mortgage Corporation, had placed a cloud upon the mineral interests by mortgages on the land in question; that these mortgages were inferior to the mineral interests of plaintiffs already described; that the Worcesters claimed adversely to plaintiffs on account of these mortgages and tax deeds; that the tax deed was void because the mineral interests acquired by Landowners from the Washburns were not taxable for reasons stated and because the tax deed was not recorded within six months from the date of its issuance, as provided by G. S. 1935, 79-2512, 2514. The petition then alleged the mortgages held by the Federal Land Bank and the Federal Farm Mortgage Corporation constituted clouds upon the mineral interests of plaintiffs. The plaintiffs then offered to do equity by paying to defendants any sum found by the court to be due defendants. The prayer was that the tax deed be declared void; that the mortgages be held unenforceable against the mineral interests of plaintiffs and that mineral operating rights of plaintiffs be quieted against any claims of defendants. As an amendment to this petition copies of the instruments to which reference had been made in the petition were attached. Since reference to them will be made throughout this opinion a résumé of them will be set out here. The first was the instrument under date of April 24,1928, executed by the Washburns and delivered to Landowners. It will be referred to as Exhibit “A.” By it the Washburns conveyed to Landowners all oil, gas and other minerals under the land in question, with the right to enter and explore for a period of twenty years or as long as they should produce. In consideration Landowners agreed to place the land in “an acreage pool known as Pool 1” which would consist of more than 25,000 acres and not more than, 500 assembled on similar conveyances, and it was mutually agreed that the obligations assumed by the grantee were a sufficient consideration for the conveyance. By the next paragraph the grantee was given the privilege of assigning the whole estate with the understanding that it would reserve to the collective credit of the members of the pool one-eighth of all oil or gas saved from the land, or would deposit a sum of money equal to the value of the royalty at the prevailing market value. The last sentence of this paragraph provided, as follows: “The grantee may sell and assign said royalty interest reserved herein, and the proceeds therefrom shall inure to the benefit of the acreage pool.” The next three paragraphs provided for the payment of royalty if grantees should drill the premises. The next paragraph provided the same for gas and other minerals. The next paragraph provided for the payment of royalty money to a trustee named for the benefit of the collective members of the pool. The next paragraph provided for the payment to the grantee in consideration of the formation and management of the pool twenty-five percent of all income from bonuses, rentals, and royalties. The next paragraph provided that the trustee should distribute to the pool members the money received by first deducting twenty-five percent for its services, next the reasonable expenses of banking and trusteeship, then the balance should be distributed to the several members of the pool so that each member would be entitled to receive a proportion that the number of acres he had conveyed to the pool bore to the actual number of acres comprising the pool. Then followed some paragraphs with which we are not concerned. Then the following: “The drilling of a well dr sinking of a shaft for oil, gas or other minerals is not necessary for the continuance of the life of this conveyance.” The remaining paragraphs are of no interest to us here. The next exhibit was the instrument of May 22, 1931. It will be referred to as Exhibit “B.” Except for the date, a provision about filling a vacancy in the trusteeship -and a provision that when money should be distributed to the pool members the seventy-five percent due should be paid first and the banking and trusteeship be taken out of the grantee’s twenty-five percent, the instruments were identical. The next two exhibits were the two conveyances of August 5. They will be referred to as Exhibits “C” and “D.” These- instruments were identical except that they each covered a different one of the quarters with which we are dealing. The first paragraph refers to Landowners as lessee, Central Royalty Company as assignee and J. A. Hull Company as sublessee. It recited the powers given Landowners in Exhibit “A” to assign royalty interests and then conveyed in its own right and in execution of the powers of trust to Central Royalty an undivided one-half of the royalty interest conveyed to it in Exhibit “A” as well as an undivided half of the working interest as a tenant in common for the term of twenty years from the date of Exhibit “A.” Landowners and Central then as tenants in common leased to J. A. Hull the right to operate a lease for oil and gas for a term of two years from August 5, 1929, to the date of the instrument. In consideration J. A. Hull agreed to deliver to the trustee named one-sixteenth of all oil produced as royalty. The instrument provided that if no well be commenced by August 5, 1930, the lease from Landowners to Hull would terminate unless Hull would pay to the trustee $80 rental a year. J. A. Hull also agreed with Central to deliver to it one-sixteenth of the oil produced and if no well be commenced by August 5,1930, the lease to terminate unless Hull should pay Central $80 a year rental; in consideration Hull agreed with Landowners in a like manner as to deférred payments. There were other provisions with which we are not presently -concerned. It will be noted that Exhibit “C” and “D” were executed after Exhibit “A” but before Exhibit “B.” The next instrument attached was between Central Royalty Company and Sinclair Prairie Oil Company under date .of October 1, 1936. It will be referred to in this opinion as Exhibit “E.” By it for consideration of one dollar Central conveyed to Sinclair Prairie Oil Company its mineral rights in land described in a schedule attached, which included the two quarters in question. The next exhibit was an instrument between Landowners and Sinclair under date of February 6, 1942. It will be referred to as Exhibit “F.” It first referred to Exhibit “B” and stated that it authorized Landowners to sell royalty interests. It then conveyed by Landowners to Sinclair in its own right, as well as in the execution of powers in trust expressed in Exhibit “B” one-half of the one-eighth royalty reserved by Exhibit “B” free from claims of the pool members, the Washburns, Landowners or the Trustees and in addition one-half of the working interest except Landowners’ powers in trust and right to compensation. It recited that by the instrument Landowners conveyed to Sinclair Prairie an undivided one-half interest in all the mineral that might be produced from the land in question for the unexpired part of the original twenty-year term and extensions provided. The instrument recited that it was executed in confirmation of the term “mineral deed,” dated August 5, 1929. This referred, no doubt, to Exhibit “C” and “D." Defendant’s demurrer to this petition was overruled. On appeal to this court defendants argued that Exhibits “A” and “B” were void on their face; that there was no consideration for them and they were so uncertain in their terms that a court of equity would not enforce them. We reversed the judgment of the trial court and held: “Considering the petition of the grantee and its assignee upon the contracts relating to oil, gas and other minerals, and the demurrer of defendants thereto, it is by the court held: (1) The petition was not drawn upon a definite theory. (2) Exhibits ‘A’ and ‘B’ do not clearly state the rights and liabilities of the parties as to the petition and exhibits disclose plaintiffs interpreted them, and with respect to the interpretation given the instruments by plaintiffs, the minds of the parties never met. (3) Exhibit ‘B,’ insofar as plaintiffs’ claimed rights to minerals in place; and Exhibits ‘C’ and ‘D’ are void under G. S. 1935, 79-420. (4) Exhibits ‘A’ and ‘B’ do not declare or imply trust powers in the grantee. (5) The provisions of paragraphs numbered 1 and 2 are for the benefit of the grantee and do not constitute a consideration to the grantor. (6) The only consideration to the grantor disclosed by Exhibits ‘A’ and ‘B’ is the one dollar paid. (7) Exhibits ‘A’ and ‘B,’ as the court is asked to construe them under plaintiffs’ petition and exhibits, is decidedly advantageous to the grantee. When one goes into a court of equity to have rights decreed under a cpntract the court looks to the entire instrument together with any action taken by the parties thereunder, and endeavors to frame its decree in harmony with applicable rules of,equity. (8) A court of equity should refuse to enforce a contract where the consideration for it is grossly inadequate and its terms are otherwise unfair.1” (p. 540.) As already stated in this opinion, we at first ordered final judgment for defendants, but on consideration of plaintiffs’ motion for a rehearing we modified our mandate so as to merely order the demurrer sustained. The question in the present appeal is whether plaintiffs have in their second amended petition cured the defects we pointed out in the one that was here before. This amended petition now before us alleged the execution of the various instruments substantially as alleged in the first petition. As to Exhibits “C” and “D,” however, they alleged that Central Royalty Company paid $250 in cash to the trustees of the pool for the rights assigned it by the Landowners in reliance on the acquiescence of the Washburns in the entire transaction after they had been advised of the activities of Central and this consideration was duly distributed to the pool members. It also alleged that Sinclair Prairie paid Central $900 for the interests conveyed to it without any notice that anyone claimed any interest adverse to Central. We come now to that portion of the second amended petition in which plaintiffs argue they met the deficiencies in the petition upon which we have already ruled. In our opinion (See Sinclair Prairie Oil Co. v. Worcester, supra) we pointed out that provision in Exhibits “A” and “B” in which plaintiffs agreed to place the land in question in an acreage pool and the provision “and it is mutually agreed between the parties hereto that the obligations herein assumed by the grantee are a valuable and sufficient consideration for this conveyance and the covenants and agreements of the grantor.” We then said: “We think this cannot be regarded as a consideration moving to the grantor for the reasons: First, that there is no allegation in the petition that the agree ment of the grantee was ever performed. Second, this paragraph did not make the ‘grantor’ a member of the ‘acreage pool.’ Indeed, that term is not defined in the instrument. It does not state what interests the grantor would have in the acreage pool, if it had been or was to be formed. It does not provide for the issuance of a certificate to him stating his membership and outlining his interests therein, nor does it provide for a list of the lands in such pools to be furnished the grantor. There is no allegation in the petition that any of those things was done. Third, if the grantee performed the agreement and made its own selection of lands, at its own expense, it did so for its own benefit, as shown by subsequent provisions of the instrument (pars. 2 and 8) and the subsequent instruments executed (Exhibits ‘C,’ ‘D’ and ‘F’) and not for the benefit of the grantor. This could not constitute a benefit moving to the grantor.” (p. 545.) In paragraph six of the second amended petition plaintiffs first alleged that the correct interpretation of Exhibits “A” and “B” was that on the execution of Exhibits “A” and “B” the land covered thereby went immediately into Pool 1. Correspondence to this effect was attached to the petition. The petition next alleged that the obligations of the grantees assumed in “A” and “B” had been fully performed in that the Wash-burns were advised as to this activity of the Landowners in connection with Pool 1 at the time Exhibits “C” and “D” were executed. Exhibits “A”, “G” and “H” were letters under date of June 8 and July 17, 1929, to all pool members advising them of the number of acres in the pool and of the sale of one-half of the royalty to Central Royalty Company. The petition alleged that the Washburns were fully advised that only a small percentage of land is productive of oil and gas and that the agreement of Landowners to form the pool and make profits available to all pool members was one of the moving considerations for the execution of Exhibits “A” and “B.” Plaintiffs alleged as a fact that the agreement to form the pool and to make the benefits available to all the pool members, the acreage capable of production not being known, was one of the moving considerations for the execution of Exhibits “A” and “B.” The amended petition then alleged certain activity of Landowners in endeavoring to obtain production on the acreage in the pool. At the time the petition was written there were seven wells productive of oil or gas on acreage belonging to the pool obtained by plaintiff with a total value of $215,000 and the full amount of royalty payable to Pool No. 1 had been paid to the trustees, and four other wells had been completed and awaited connection with the pipe lines; that six of these wells were drilled by the Black-Marshall Oil Company; that plaintiff Sinclair Prairie Oil Company paid one-half the cost of these wells or $107,257.72 and Black-Marshall, the lessee of Sinclair, paid the other half; that Sinclair owned one-half the seven-eighth working interest in these wells and in addition one-half of the- one-seventh royalty the other one-half of the one-eighth royalty belonging to the pool members; that Landowners claimed no interest in the wox’king interest or the royalty interest but did claim a right to participate in the distribution of money to the pool members; that Landowners caused the seventh well to be drilled by the FinKer Oil and Gas Production Company; that Sinclair claimed 24/512ths of the gross production of all gas from this well and the members of Pool 1 were entitled to 32/51'2ths of it and Landowners claimed 8/512ths of it. The petition then alleged plaintiffs had caused four dry holes to be drilled at a cost of $60,000; that they had caused ten offsetting test wells to be drilled on land adjacent to which it did not own any acreage except land in Pool 1. The amended petition then alleged that after the execution of Exhibit “A” by the predecessors of defendants, Landowners paid to them through the trustee $160 as dividends to cover the 640 acres named in Exhibit “A” and thereafter between that date and May 22, 1931, the date of the execution of Exhibit “B” ten payments of dividends to the Washburns through the trustee aggregating $358.88. The petition then referred to Exhibit “N” attached to the petition, which was a letter signed by the Washburns," and which acknowledged the receipt of the regular dividend and in addition thereto $1 in consideration of which the Washburns ratified Exhibit “A” and then alleged payment to the Washburns through the trustee in 1931,1932 and 1933 of dividends in the amount of $11.49. The amended petition then alleged that Landowners paid to defendants through the trustee one dividend each in the years from 1935, inclusive, to 1941, aggregating $39.60, and on December 27, 1945, a check for a dividend in the amount of $4.80 to defendants, together with a letter, Exhibit “O,” which pointed out that supreme court decisions had been favorable and they had invested $125,000 in the management and by the time they received the latter the pool members would have received $375,000 and that defendants had acknowledged receipt of the check and had stated in a letter that they had lost the check for 1935 and requested that they send another one. The petition then alleged that by the receipt of these payments amounting to '$424.37 the Washburns, and defendants had ratified and confirmed the rights of plaintiffs under Exhibits “A” and “B’ and were estopped to deny receipt of a consideration for the performance of the obligation of plaintiffs under “A” and “B” and were estopped to deny the validity of the rights covered by these instruments; and the facts alleged, the placing of the land in the pool, the payment of the dividends, the acceptance of the payments by defendants constituted a complete performance of “A” and “B” by Landowners'. The petition then alleged the acquiring of a tax deed to the land in question by defendants after they and their predecessors in title had received the benefits for twelve years for the purpose of depriving plaintiffs of their rights; that defendants claimed adversely to plaintiffs; that the tax deed was a cloud on plaintiffs’ title and a denial of the relief prayed for would deprive plaintiffs of their property without due process of law and would constitute a denial to them of the equal protection of the law; that the tax deed was void because the rights acquired by Landowners and Sinclair Prairie, which were acquired by them by virtue of the instruments described, were not legally subject to taxation because they did not operate to constitute a severance of the ownership of the oil or gas from the ownership of the surface of the land, as contemplated by G. S. 1935, 79-420, and by reason thereof the tax deed was issued without authority of law and was void; that it was unenforceable because it purported to convey the entire title to the land without excepting therefrom the mineral rights; that it was void because it was not filed for record within six months of the date of its issuance, as required by G. S. 1935, 79-2512 and 79-2514. The plaintiffs offered to do equity and to pay into court any amount which might be legally payable to them. The prayer of the petition was that the tax deed be adjudged void and removed as a cloud; and that the interests pertaining to the minerals vested in plaintiffs be quieted in them as against any claims of defendants and for further equitable relief. To this petition, defendants moved to strike all of the paragraphs from the petition which alleged defendants acquired the tax deed for the purpose of depriving plaintiffs and the other pool members of any possible benefits from the minerals under the land; and also to strike that paragraph that alleged a denial of the relief prayed for would constitute a taking of plaintiffs’ property without due process of law and would deny them the equal protection of the law. The trial court allowed the motion as to the first portion but denied it as to the latter. Thereupon defendants demurred to the petition on the ground it departed from the purported cause of action stated in the petition once passed upon by this court and the court was without jurisdiction; that plaintiffs had no legal capacity to sue; another cause of action pending for the same cause, the first cause of action, attempted to be stated, several causes of action improperly joined and the amended petition failed to state facts sufficient to constitute a cause of action. This demurrer was overruled. Hence this appeal. Defendants first argue that the trial court erred in permitting plaintiffs to file the amended petition and in overruling their motion to strike it from the files. The basis of this argument is that in their second amended petition, which is now before us, plaintiffs • attempt to relitigate in this appeal a question which was decided against them in the first one. They argue they brought the first petition on the theory that Exhibits “A” and “B” conferred powers in trust on them. They point out that we held in our first opinion Sinclair Prairie Oil Co., v. Worcester, 163 Kan. 540, 183 P. 2d 947, that these instruments did not create trust powers, yet notwithstanding this, plaintiffs have drawn their second amended petition on the theory that Exhibits "A” and “B” created trust powers. They cite authorities where we have held that where a second appeal is brought to this court in the same case the first decision is the settled law of that rule. The question is whether plaintiffs are actually attempting to relitigate the same question. On account of the nature of this argument the pleadings and exhibits have been set out rather more fully than they otherwise would have been. We hold that a reasonable interpretation of the petition is that each action was brought to set asid'e a tax deed, and for incidental relief of having plaintiffs’ title to the mineral rights quieted. While, Exhibits “A” and “B” do mention trust powers and we held in the first opinion that no trust powers were conferred, still the actual basis of plaintiffs’ claim to relief in each petition was the rights conveyed fcv drill if such course be deemed wise, to sell royalty, to convey rights to drill, and to distribute the proceeds. The only difference between the petitions in the two appeals is that this petition sets out what plaintiffs actually did in the way of carrying out the consideration for Exhibits “A” and “B.” The two actions are essentially on the same theory. (See Columbian Title and Trust Co. v. City of Tribune, 133 Kan. 51, 298 Pac. 798; also Dalton Adding Machine Sales Co. v. Crowder, 126 Kan. 19, 266 Pac. 747; also Thomas County Coop. Business Ass’n v. Pearson, 130 Kan. 622, 287 Pac. 242.) “ Defendants next argue that the trial court erred in overruling their motion to require the plaintiffs to make their petition more definite and certain in certain specified particulars. We have examined this motion. It was sustained in certain particulars and in others denied. Yery little would be added by setting out the various paragraphs of the motion. Suffice it to say that the motion asked that plaintiffs be required to set out evidence and in no case the portions of the motion that were denied asked for any details incidental to plaintiffs’, claimed cause of action. The granting or sustaining of a motion to make definite and certain is addressed in a large measure to the discretion of the trial court. We hold that the trial court did not abuse its discretion in ruling on this motion. Defendants next refer to their motion to strike certain paragraphs from plaintiffs’ petition. The amended petition contained an allegation, as follows: “X. “These plaintiffs further allege that the denial of the relief prayed for herein under the facts alleged in this petition would constitute the taking of plaintiffs’ property without due process of law, and would constitute the denial to them of the equal protection of the law, all as prohibited by the Fifth and Fourteenth Amendments to the Constitution of the United States.” Defendants asked the court to order this paragraph stricken. The motion was overruled and defendants argue this was error. This allegation was but little more than a conclusion of law. It is difficult to see how leaving it in the petition worked any prejudice against the defendants. Defendants argue that plaintiffs cannot show they were denied due process of law under the facts pleaded. Granted that this is true, still the above quoted paragraph in the petition does not prejudice defendants. Defendants present their next two points together, that is, that, the trial court should have sustained their demurrer to the second amended petition, and erred in not holding Exhibits “A,” “B,” “C,” “D,” “E,” and “F” void. This is but two different ways of stating the same question'since if these exhibits were void the petition would not state a cause of action. The basis of this argument is that Exhibits “C” and “D” were executed after Exhibit “A” but before Exhibit “B” and hence Exhibit “B” is of no force and effect since all the drilling was done and other activity was had under Exhibits “C” and “D” and the latter have no relation to Exhibit “B.” They point out that Exhibit “B” does not set out any ratification of Exhibit “A” and does not purport to be a novation contract but is a stranger to it. In this connection they point out that since Exhibit “A” has expired by lapse of time under its own terms and Exhibit “B” never was acted on by the parties, there are no valid instruments upon which to base' a judgment in favor of plaintiffs. The answer to this argument is that whatever name be given Exhibit “B” with reference to Exhibit “A” the two were substantially identical terms. Defendants and their predecessors in title accepted payments from plaintiffs operating under Exhibit “A” and after Exhibit “B” was executed, continued to accept these payménts and to recognize the operation of the pool. Exhibit “A” was fully carried out by plaintiffs and defendants cannot escape the binding force of Exhibit “B” just because it was executed at a subsequent date. It is pointed out by defendants that some of the pool members under Exhibit “A” might not have executed Exhibit “B.” That may very well be, but we do not have such a case here. Defendants’ predecessors did execute it and for years defendants accepted some benefits from it. In Sutherland v. Madden, 142 Kan. 343, 46 P. 2d 32, we said: • “ ‘It is a rule established by many well-considered cases that parties to a lease cannot escape from their secondary (modifying) agreement on the ground of want of consideration, where it has been fully executed, nor, if partially executed on both sides, can they repudiate that part of it which had been executed, though the unexecuted part may be repudiated unless grounds of equitable estoppel exist.’ (43 A. L. R. 1458.)” (p. 346.) In our former opinion we held Exhibit “B” insofar as plaintiffs claimed rights to minerals in place and Exhibits “C” and “D” are void under G. S. 1935, 79-420. In answer to this, plaintiffs point out that they do not claim any rights to minerals in place and do not contend that Exhibit “B” conveyed such. Furthermore, the amended petition alleges that Exhibit “B” was executed May 22, 1931, and filed for record September 29, 1931, which was prior to March 1 of the year following its execution. This had the same legal effect as listing it for taxation. (See Richards v. Shearer, 145 Kan. 88, 64 P. 2d 56; also, Davis v. Shelly, 159 Kan. 282, 154 P. 2d 114.) Defendants next argue that their demurrer should have been sustained because the petition discloses on its face that the minds of the parties never met. They point out that in our former opinion we held, in part, “And with respect to the interpretation given the instruments by plaintiffs, the minds of the parties never met.” Under the pleadings we were reviewing in the former appeal that statement was correct. This amended petition, however, sets out in detail just what the dealings of the parties were subsequent to the execution of Exhibits “A” and “B.” The amended petition discloses that on July 17, 1929, the Landowners Oil Association informed all members of the pool, including defendants’ predecessors, in a letter, as follows: “Your pool now consists of about 124,000 acres of carefully selected land located in Kansas, Oklahoma and Texas, and can not exceed 500,000 acres. To the Central Royalty Company we have assigned a half of the royalty reserved in the leases to us, embracing 100,000 acres in western Kansas. . . . With,the exception of 1,760 acres just previously leased to the Continental Oil Company, we have entered into ten-year leases on the same land with the J. A. Hull Company for development. . . . We will continue to lease the rest of the land in your Pool One for development. It seems, therefore, that the dividend may be larger than stated in my letter of June 8.” The petition and exhibits disclose that the parties were informed the one-half of their royalty had been sold and that payments they would receive and did receive were the proceeds of that sale. Granted that for the sake of argument the language of Exhibits “A” and “B’J was ambiguous and indefinite, still the interpretation put upon it by the parties themselves is clear enough. (See Kennedy v. Glen Cove Mut. Ins. Co., 154 Kan. 327, 118 P. 2d 591.) Defendants argue that their demurrer should have been sustained because Exhibits “A” and “B” grant such unfair advantages to the grantee as to be unconscionable. This argument turns in a large measure upon the clause in Exhibits “A” and “B” giving the grantee in those instruments power to sell all or part of the one-eighth royalty usually reserved to lessors and reserved to the pool members in these two exhibits. The petition and the exhibits all show that one-half the royalty reserved to the pool members on the land in question was sold and the proceeds paid to the pool members in accordance with the formula provided in the instruments, that is, defendants were paid in proportion that the number of acres put into the pool by them bore to the entire number of acres in the pool. In our former opinion we held, in part, Exhibits “A” and “B” as the court is asked to construe them under plaintiffs’ petition and exhibits are decidedly advantageous to the grantee. The foregoing was correct as applied to the petition we were considering at that time. It will be noted, however, that it falls a little short of being a holding that the exhibits are so advantageous to grantee as to be unconscionable. At any rate, the amended petition has supplied sufficient details as to the manner in which the pool was operated in this respect so that the exhibits in the light of the allegations of the present petition, the advantage to the grantees seems less marked. In the first place, it appears from the petition that this one-half royalty in some of the acreage was sold as an added inducement to drilling companies to cause them to drill on some of the acreage. Defendants were advised of this and approved it by continuing to accept payments. ' Furthermore wherever exploration is going on in unproven territory it is not uncommon for the lessor to sell part of his royalty interest in order to cause drilling companies to expend the money necessary to drill. By thus buying royalty the drilling company increases the odds in its favor. This is one advantage to the drilling company, but not such an advantage as would be deemed unfair. Furthermore, our further analysis of the instruments discloses that in the case of defendants .where some of their royalties were sold but their land was not drilled, they still share in the proceeds of the pool on the original basis even though some of the royalty had been sold. The only difference the royalty sale made was that less money went into the pool when production was had on that land. However, all the pool members shared in the division of proceeds from the sale of royalty. That is so clearly the result that follows from the operation of a pooling contract that it can hardly be said to be unconscionable on the face. It was explained to defendants’ predecessors at the outset that a pooling contract is one where many landowners contribute acreage in the hope that if oil is found on any of the acreage all the owners will profit. It is a variation of the principle of spreading a business risk over a number of enterprises in the hope of a more certain, if smaller return. We are not holding the landowners were wise to sign such instruments as Exhibits “A” and “B.” We are only holding the instruments were ■ not unconscionable. (See Moos v. Landowners Oil Ass’n, 136 Kan. 424, 15 P. 2d 1073; Beltz v. Griggs, 137 Kan. 429, 20 P. 2d 510, and Eichman v. Landowners Oil Ass’n., 153 Kan. 791, 113 P. 2d 1056.) Defendants argue that their demurrer should have been sustained because the petition shows on its face the Landowners Oil Association did not pay any consideration for Exhibits “A” and “B.” In our first opinion we held: “The provisions of paragraphs number 1 and 2 (of exhibits A and B) are for the benefit of the grantee and do not constitute a consideration to the grantor.” In the light of the petition we were then considering such statement was correct. The amended petition has amplified the allegations in that respect, however. In the first place, defendants devote considerable space in their brief to a calculation of how small the payments' were to defendants and their predecessors over the years. In the absence of a showing that these instruments prevented defendants from having their land drilled it would seem that what money was paid defendants and their predecessors was money they would not have received at all if they had not executed Exhibits “A” and “B.” Furthermore, inadequacy of consideration is not good ground for setting aside a conveyance unless it is so glaring as to stamp the transaction with fraud and to shock the common sense of honesty. (See 16 Am. Jur. Jur., Deeds, 33; Gulf Rld. Co. v. Comm’rs of Miami County, 12 Kan. 482.) The smallness of the consideration may be looked to in weighing the evidence of fraud but alone is not enough to warrant setting aside a conveyance. (See Williams v. Church, 198 P. 2d 995.) At any rate, the amended petition sets out at length all the facts about defendants’ predecessors and defendants being advised they were in the pool, the number of acres in the pool and how it was being conducted. The amount of money expended by plaintiffs in operating this pool and carrying out the provisions of Exhibits “A” and “B” will not all be set out here. The cost was well over $200,000. From this expenditure defendants have or will benefit. The rule is stated at 17 C. J. Contracts p. 335 as follows: “Although there is a lack of mutuality in the beginning, this may be cured by the other party subsequently binding himself also by promise or act. Thus, if A promises B to pay him a sum of money if he will do a particular act or make a particular promise, and B does the act, the promise thereupon becomes binding, although B at the time of the promise does not engage to do the act or to make the promise. In the intermediate time the obligation of the promise is suspended, for until the performance of the condition of the promise there is no consideration, and the promise is nudum pactum; but, on the performance of the condition by the promisee, it is clothed with a valid consideration which relates back to the promise and it then becomes obligatory.” See, also, Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; 13 C. J. 334; Electric Management & Engineering Corp. v. United P. & L. Corp., 19 Fed. 2d 311. The plaintiffs have fully performed according to the allegations of the petition sufficient obligations of Exhibits “A” and “B.” Defendants next argue that their demurrer should have been sustained because Exhibits “A" and “B” are gambling contracts. They in common with most contracts having to do with the oil business have an element of speculation in them. If we would brand these two instruments unenforceable on account of being gambling contracts, however, we would have to strike down half the contracts in the oil business. ' The judgment of the trial court is affirmed. Wedell and Price, JJ., concur in the result.

The opinion of the court was delivered by Arn, J.: This appeal involves a judicial construction of G. S. 1947 Supp. 59-2408, concerning the right to a trial by jury in the district court on an appeal from the probate court from an order denying restoration to capacity of a person previously adjudged incompetent. On or about December 9, 1946, the appellant was adjudged mentally incompetent. This action was commenced some ten months later by her filing in the probate court a petition for restoration to capacity. After due notice and hearing, the probate court found that petitioner (appellant here) had not been restored to capacity and an order was made denying her petition. From that order of the probate court, petitioner perfected her appeal to the district court, and requested a trial by jury. A jury was empanelled and by its verdict found that the petitioner had been' “restored to capacity and is capable of managing her estate.” The guardian (appellee here) thereupon filed what he termed a “Motion for Judgment or New Trial,” stating that the jury verdict was advisory only and should not be approved by the court because the petitioner had failed to show she had been restored to capacity; and that the jury’s verdict was in conflict with the evidence. The district court held the jury verdict to be an advisory verdict only and set it aside for the reasons stated in the guardian’s motion. The court also found and adjudged that the petitioner had not been restored to mental capacity and was still incapable of managing her property and affairs. It is from these rulings and orders of the district court that petitioner has appealed to this court. The single question here presented is whether a person who had theretofore been adjudged incompetent is entitled, as a matter of right, to a trial by jury in the district court upon an appeal from the probate court’s order refusing to restore capacity. Let us refer to pertinent sections of the Kansas probate code (G. S. 1947 Supp. ch. 59.) Section 59-2268 provides for the filing of a petition in the probate court for restoration to capacity. Section 59-2401 contains twenty-one different subsections dealing with twenty-one different orders, judgments, or decrees which are appeal-able from the probate to the district court, and among these are: (5) An order allowing, or disallowing, a demand in whole or in part when the amount in controversy exceeds fifty dollars. (17) An order adjudging, or refusing to adjudge, a person incompetent. (18) An order committing, or refusing to. commit, a patient to a state hospital. (19) An order granting or denying restoration to capacity. Section 59-2212 provides that “trials and hearings in probate proceedings shall be by the court unless otherwise provided by law.” Section 59-2408 provides: “Upon the filing of the transcript the district court, without unnecessary delay, shall proceed to hear and determine the appeal, and in doing so shall have and exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in such court and as though such court would have had original jurisdiction in the matter. The district court shall allow and may require pleadings to be filed or amended. The right to file new pleadings shall not be abridged or restricted by the pleadings filed, or by failure to file pleadings, in the probate court; nor shall the trial in, or the issues to be considered by, the district court be abridged or restricted by any failure to appear or by the evidence introduced, or the absence or insufficiency thereof, in the probate court. All appeals other than those from, the allowance or disallowance of a demand, adjudging or refusing to adjudge a person incompetent, and committing or refusing to commit a person to a state hospital, shall be tried by the court without a jury, but the court may call a jury in an advisory capacity or in a proper case may refer the matter or part thereof to a referee.” (Italics supplied.) It is the last sentence of the above section upon which the question here involved really turns. This last sentence simply means: That of the twenty-one different appeals listed in section 59-2401, quoted above, all of them except those designated as subsections (5), (17) and (18) shall be tried by the court without a jury; but the court may call a jury in an advisory capacity, or in a proper case may refer the matter or part thereof to a referee. Appellant contends that the above three types or classes of appeals must be tried to a jury, but that is not an issue in the instant case and a discussion of that question could serve no purpose here. The sole question now before this court is whether section 59-2408 entitles a person appealing to the district court from an order granting or denying restoration to capacity to a jury trial as a matter of right.. Appellant next contends that there is no reason for making a distinction in this respect between appeals from orders adjudging or refusing to adjudge a person incompetent and those granting or denying restoration to capacity, because in either case the real and only issue is the competency of the person involved. However, by this section (59-2408) the legislature has clearly, and we think intentionally, provided that all except three classes of appeals shall be tried to the court. It has specifically named the three classes so excepted, and an order granting or denying restoration to capacity is not one of them. Where the language of the statute is clear, we need not search for the reasons which prompted the legislature to write it. Appellant argues that on appeal to the district court, this case was to be tried as any case at law and the proceedings of the probate court “pass into the penumbra of the picture”; that the machinery is that of judge and jury, coordinate, but with each supreme in its own field. It appears from these words appellant is contending that this case before the district court on appeal from an order denying restoration to capacity resembled any district court action at law, and the right to trial by jury was inviolate. There is no merit to such contention. The case of State v. Linderholm, 84 Kan. 603, 114 Pac. 857, came to this court after both probate and district courts had adjudged defendant insane. The jury provided by the laws of 1909 for hearings in both the probate and district courts was a jury of four. It was claimed on appeal to this court that the right of trial by jury as guaranteed by the constitution had been violated. This court said: “Although the hearing of a case of this kind is ordinarily designated as a trial, it is not so in the sense of the constitution. The proceeding is merely an inquest conducted primarily for the benefit of the person whose mental state is in question, and it bears no resemblance to an action, either civil or criminal. ... On appeal to the district court the nature of the proceeding was not changed. It was 'still an inquest of lunacy, the same as it had been in the probate court, and the jury provisions of the civil and criminal codes were not applicable.” (pp. 603-604.) (See, also, 91 A. L. R. 96n; and Hall v. Brown, 129 Kan. 859, 284 Pac. 396, and cases cited pp. 861-862.) These cases were decided before the existing probate code (G. S. 1947 Supp., ch. 59) was enacted, but the language there used is applicable to any similar contention made under the new code. In re Estate of Henry, 156 Kan. 788, 137 P. 2d 222, did not involve proceedings for restoration to capacity, but it was an appeal from the probate court to the district court where respondents claimed they were entitled to a jury trial under G. S. 1947 Supp., 59-2408, the same statute we are considering here. It was held that since the appeal there involved was not one of the exceptions stated in section 59-2408, it must be tried without a jury, although an advisory jury might be called. An appeal from an order granting or denying restoration to capacity is not one of those three classes specifically excluded by the last sentence of section 59-2408, G. S. 1947 Supp., and not being excluded, it is included with those appeals which shall be tried by the court without a jury, unless a jury is called in an advisory capacity. It follows that the district court did not err in disapproving the advisory verdict and in making its own findings as to the mental capacity of .the petitioner. None of the testimony was abstracted and no record is submitted for the determination by this court of any other issue than the construction of the aforesaid statute. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Arn, J.: February 26, 1947, Cyrus E. Millar departed this life, and on April 9, 1947, his last will and testament (made and executed May 5, 1945) was admitted to probate in the probate court of Kiowa county. Decedent left no surviving spouse and left surviving him no child or children except his two daughters who are the appellants here. No appearance was made in the probate court by these appellants, but in due time they perfected an appeal to the district court where they filed written defenses to the petition for probate and prayed that the probate court’s order admitting decedent’s will to probate be set aside. The trial was by the court which sustained the validity of the will, and the findings were recorded as follows: “The Court: Well, gentlemen, I have listened to all this argument and have heard this testimony, and I find there is no general incompetency here at all, and I don’t believe there was any lack of mental capacity. I do not believe there was a delusion. I think he might have had the wrong idea or opinion as to the fidelity of these children, but I think that was his belief, because in the divorce case they had sided in with the mother. And I find there was no undue influence such as is contemplated by the law and would be required to set aside this will. “Your argument was masterful. You brought up everything that I think could be brought up, but I still think you would have to go on suspicion and surmise in order to find undue influence. "Counsel: May I make this inquiry: Is it the position of the Court that notwithstanding the fact that the several circumstances upon which we have relied here are undisputed that it is largely a matter of insufficiency of proof under the law? “The Court: Well, I would say that, yes.” A motion for new trial was overruled, and from the court’s judgment and decree sustaining the will, the two daughters have appealed. Appellants contend the undisputed evidence before the trial court showed: (1) That at the time of the execution of the purported will, Cyrus E. Millar was mentally incompetent in that he was the victim of an insane delusion which caused him to believe the appellants had sided with their mother in a divorce case instituted by her a few days before, and that such delusion directly influenced the terms of the will; (2) that the will was the result of undue influence exercised upon decedent by his mother and principal beneficiary, Carrie E. Millar, sufficient to make it her will rather than the will of the decedent. The evidence disclosed quite clearly that the testator Cyrus Millar frequently (perhaps habitually) imbibed to excess of spirits frumenti. The exact dates of the occurrences are not clear, but for some years before he undertook to make his will, he did at times have imaginative delusions, or hallucinations, of being a linguist versed in several foreign languages, a gunman, and a knife thrower. On one occasion he believed a colored-glass window was his wife frozen in ice. On May 1,1945, he became so intoxicated he “passed out” on the living room floor of his home. There was also evidence that Cyrus’ mother and principal beneficiary under his will had a dislike for his wife and two daughters. On May 1,1945, Mrs. Millar instituted divorce proceedings against Cyrus and on May 3 Cyrus went to live with his mother in Pratt, where he stayed until about May 20. One witness testified Cyrus had said he was afraid of his mother. On May 2 the mother requested of Cyrus’ attorney that her personal attorney be associated with him as co-counsel for Cyrus, and some time later she wrote to Cyrus’ attorney stating that Cyrus had asked her to notify him that he was discharged as counsel for Cyrus. On May 3, 1945, the mother’s physician attended Cyrus and said he looked as though he had been intoxicated for some time, but his mental faculties were good. On May 5, Cyrus was improved but still nauseated. The physician treated Cyrus until May 17, 1945. The will was executed on May 5 in Cyrus’ bedroom upstairs in his mother’s home. The mother was not present. Cyrus’ mother or the scrivener of the will did not testify, but ten witnesses testified for the proponents of the will to the effect that Cyrus Millar knew the nature and extent of his property and the natural objects of his bounty; that he carried on rather extensive ranch operations and was competent to transact business; that he knew what he wanted to do with his property; and that he was competent to make a will. Several witnesses saw him on May 5 when the will was made and in their opinion Cyrus was on that day mentally competent although he looked bad. Two witnesses for the proponents of the will testified in effect that Cyrus told them his two daughters and his wife were trying to get his property and he hadn’t left the two daughters anything (or they weren’t to have a cent) because they wouldn’t do what he wanted them to do — and because they had turned against him, et cetera. Two other of proponent’s witnesses testified that on May 5 Cyrus did not appear to be under any restraint or influence. All witnesses said that Cyrus was good to his two daughters and that the daughters had been good to him; that they had seemed to be fond of each other, at least prior to the divorce. The girls had always helped Cyrus on the ranch. They helped round up and herd the cattle before they married, and one of them had acted as his secre tary. There was no evidence that the girls had “turned against” their father, but there was substantial evidence that he believed they had done so — or that they had “sided” with their mother in the divorce case. One witness for the opponents of the will, a physician, said he guessed Cyrus had the mental capacity to “go on with his business.” Some ten or eleven of opponents’ witnesses, including Cyrus’ ex-wife and his two daughters, believed Cyrus was mentally incompetent. One physician, qualified as an expert in nervous and mental diseases, was of the opinion that Cyrus suffered from “mental delusions” as a result of chronic alcoholism; and that Cyrus’' belief that his daughters had turned against him was a delusion. Another witness for opponents of the will testified 'Cyrus had said his mother did not like his wife and daughters, and that Cyrus regretted he had willed the property to his mother and neglected his children. After the divorce action was filed, the court —with the consent of Cyrus’ wife — directed Cyrus to have the sole management of the 10,750-acre ranch with 2,000 head of cattle and other property, worth in all approximately $300,000. There was some evidence that Cyrus had an investigator working for him while the divorce case was pending, who reported to Cyrus his findings regarding the wife and daughters. The evidence was conflicting as to whether Cyrus continued his drinking habits after May, 1945, but he lived until February 26, 1947, more than one year and nine months after making the will, when he met his death by reason of accident. From the foregoing summary it is apparent that this is a fact case presenting questions to be determined by the trier of the facts. Perhaps upon the same testimony appearing in the record before us, had it been our prerogative to weigh the evidence, this court would have been impressed differently than was the trial court — and our consideration of the evidence might have resulted in different findings than those made by the trial court. But that is not the test. We cannot weigh conflicting evidence, and we must not disturb the findings of the trial court if there is substantial evidence to support them. (Mann v. Staatz, 156 Kan. 275, 133 P. 2d 103; In re Estate of Pallister, 159 Kan. 7, 152 P. 2d 61; In re Estate of Walker, 160 Kan. 461, 163 P. 2d 359; In re Estate of Wittman, 161 Kan. 398, 400, 168 P. 2d 541; and the many cases collected in Hatcher’s Digest, Appeal and Error, §§ 503-508.) It is appellants’ contention that their evidence (offered as op ponents of the will) was uncontradicted and substantial to show (1) that the will was the direct result of an unfounded insane delusion of the testator, Cyrus Millar; and (2) that testator’s mother and principal beneficiary under the will, Carrie Millar, exercised undue influence upon him. What is an insane delusion? We have no difficulty in conceding that Cyrus Millar, at some uncertain time prior to May, 1945, and as a result of intoxication, suffered some abnormal condition when he believed himself to be a proficient linguist (there was no evidence of his proficiency in any foreign language), a knife thrower, a gunman, or when he thought a colored glass window was his wife frozen in ice, although from the distinction made by some authorities, it would appear that the inebriate who sees “pink elephants” and the like suffers from hallucinations rather than insane delusions. Many authorities, however, consider it too narrow a conception of the term “insane delusion” to say it is a belief in something that is impossible. “. . . the meaning of insane delusion, in its legal sense, is ‘a belief in things impossible, or a belief in things possible, but so improbable under the surrounding circumstances, that no man of sound mind could give them credence.’ ... to avoid a will upon that ground the delusion must be an insane delusion, and that the will was the product of that delusion.” (Johnson v. Johnson, 105 Md. 81, 85, 65 Atl. 918, 121 Am. St. Rep. 570.) A belief does not amount to— “An insane delusion, unless it appears that his belief was wholly without any basis whatever, and that the testator obstinately persisted in it against all argument which may have been employed to dissuade him. If there are any facts, however little evidential force they may possess, upon which the testator may in reason have based his belief, it will not be an insane delusion.” (Stull v. Stull, 1 Neb. (Unof.) 389, 396, 96 N. W. 196.) “An insane delusion is a belief in something impossible in the nature of things or impossible under the circumstances surrounding the afflicted individual, and which refuses to yield either to evidence or reason.” (Scott v. Scott, 212 111. 597.) There is no evidence in this record which tends to show that the deceased had any such delusion in regard to his children. The fact that testator’s regard for his children was lessened by the fact that one of them had sympathized with and aided testator’s wife in certain family difficulties constituted no indication that testator entertained an insane delusion against his children. (Bauchens v. Davis, 229 Ill. 557, 561, 82 N. E. 365.) Another definition of the terna is found in 68 C. J. 433, § 30: “A delusion, to deprive the testator of capacity, must be an insane delusion. An insane delusion such as will affect testamentary capacity is an idea or belief which has no basis in fact or reason and to which the testator adheres against reason and evidence, or, in other words, it may be stated to be a belief in a state of facts that does not exist and which no rational person would believe to exist. A mere mistaken belief or an erroneous or unjust ■conclusion is not an insane delusion if there is some foundation in fact or .some basis on which the mental operation of the testator may rest, even -though the basis may be regarded by others as wholly insufficient. Similarly, ■even though the testator may be in error in his reasoning, undue or unnatural prejudice or' aversion, if based on any kind of reasoning, is not an insane delusion; to prove it such it must appear that there was no basis for it and that •attempts were made by reasoning to dispel it; if there is no basis for it, it is an insane delusion. One may have a delusion which does not imply or show unsoundness of mind, being merely evidence of insanity.” “Insane delusions” have been specifically contrasted with or distinguished from “delirium,” “error,” “hallucinations,” “irresistible impulse,” “mistake of fact,” and “pessimistic beliefs.” (44 C. J. S. 8.) The distinction between a mistake and an insane delusion is that a mistake, whether of fact or law, moves from some external influence which is weighed by reason, however imperfectly; while a •delusion arises from a morbid internal impulse having no basis in reason (Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405); and a belief which a rational person may entertain, however erroneous, is not an insane delusion (Hutchinson v. Hutchinson, 250 Ill. 170, 95 N. E. 143). The term “insane delusion” has been considered by this court in a number of cases. In Medill v. Snyder, 61 Kan. 15, 58 Pac. 962, a jury was called to aid the court and in addition to its special findings the trial court made findings of its own. This is another •case where we refused to disturb the findings made by the trier of the facts where there was substantial evidence to support them. Concerning “insane delusions,” we said in the Medill case: “. . . While the definition given may be found in the books, it is a too narrow conception of the term to say that it is a belief in something that is impossible, (citations) The things believed may not exist, and there may be no grounds whatever for the belief, and yet their existence may not be a physical impossibility. An instance cited is the persistent and wholly unfounded notion that a wife is guilty of adultery. Another example is where a parent, without the slightest pretense or color of reason, unjustly persists in attributing to a daughter a gross vice and uses her with uniform unkind ness. Another is where a person, without cause or reason, insists that those who had administered medicine to him in sickness had given him poison. These things are not physical impossibilities, but if such a belief is entertained against all evidence and probability and after argument to the contrary, it would afford grounds for inferring that the person entertaining it labored under an insane delusion. We think the instructions cannot be regarded as erroneous, and, since the court made its own findings of fact from the evidence, the instruction is not of great consequence.” (1. c. 23-24.) Harbison v. Beets, 84 Kan. 11, 113 Pac. 423, is another case involving an insane delusion, and there a jury was called to aid the court but the court made its own findings. In discussing the term, we said: “There is a seeming conflict between these findings, but upon careful examination in the light of the evidence they are susceptible of reconciliation. That the testator fully understood and knew that he was placing the daughter’s portion in the hands of trustees, to be used for her support as therein directed, is not necessarily inconsistent with the idea that he did not have sufficient mental capacity to comprehend what he was doing and how he was disposing of his property, in view of the further proposition that he did not have sufficient mental capacity to understand the ties of relationship and the ■claims of his various children upon him and that he was under an insane delusion as to an imaginary quarrel in the appellee’s family and was influenced thereby in making the will, and that ‘he was chiefly controlled by the thought that his daughter, Eliza J. Harbison, was in danger of being driven out of her family.’ It all amounts to this: That he had mental capacity to know how he wanted the will drawn and to direct that the appellee’s portion be placed in the hands of trustees, but not to transact business generally in a sane manner, on account of the insane delusion about the quarrel and the fear of the daughter’s being thrown upon her own resources by her well-to-do husband. True, the specific insane delusion found relates only to the imaginary quarrel, but manifestly the court, as shown by the ninth and eleventh findings, thought this specific delusion merged into the notion that the appellee was in danger of financial desertion, and that the testator entertained such notion is abundantly shown by the evidence, and no basis therefor is apparent. In other words, the result may be thus epitomized: He knew what he was doing, but he had an insane reason for doing it. This is really not more mysterious than other manifestations of insanity, for its 'effects are often inconsistent and inscrutable. “It is familiar law that one laboring under an insane delusion which influences him to make a will in a certain way does not possess testamentary capacity.” (1. c. 17-18.) The last sentence of the above quotation leaves no room for distinction between an insane delusion and testamentary incapacity. That would indicate any testimony that a person was mentally competent to make a will negatives the fact that he suffered an insane delusion. It should also be noted that in the Harbison case the trial court found, upon substantial evidence, that the eighty-six-year-old testator suffered an insane delusion which influenced his will. It was another case where this court would not disturb a finding supported by substantial evidence. In Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849, the trial court found that the elderly testator at times suffered from “senile dementia,” but the other findings were not sufficient to indicate incompetency to make a will, nor that testator’s knowledge and comprehension of his property and business affairs were affected by the accompanying finding of “senile dementia.” This court reversed the trial court, holding that the will should have been sustained upon the findings made by the trial court. In the opinion we said: “The court found that Charles and his stepmother sometimes quarreled, and while their relations were not severed and remained cordial and ordinarily affectionate, he sometimes used to her and of her language profane, unkind, and in a few instances, cruel. This finding was supported by evidence of coarse and vulgar epithets applied to Mrs. Wisner and of a brutal defamation which Charles circulated, which wounded his father most deeply. Charles denied the defamation, but lack of proper respect for Mrs. Wisner extending to cruelty on the part of Charles was expressly found by the court. It was not a figment of the testator’s imagination. It was not a delusion springing from a mind disordered by disease. It had a solid basis in reality. However much it may be regretted that the testator could not forgive, as Mrs. Wisner probably did, his resentment was human and natural, and if he magnified his injury and illogically and unjustly carried his resulting prejudice too far, so that it extended to the family over which Charles presided, he was not possessed of an insane delusion within the purview of any well-considered decision of which this court is aware.” (1. c. 49.) Fairly close in point is the case of Akins v. Akins, 109 Kan. 453, 199 Pac. 922, where testator was a constant and excessive user of intoxicating liquor. It was claimed the will was a result of an insane delusion. The findings of the trial court sustained the will, and so we have another case where this court refused to disturb the 'trier’s findings supported by substantial evidence. Concerning insane delusions, we said there: “. . . The evidence tended almost conclusively to show that the plaintiff had not in any way wronged his father in the management of the business or in the sale of it, although in the sale there was that which would excite the suspicions of many men. Grant that John Akins was mistaken, a mistake is not an insane delusion. A mistaken belief entertained by one that he has been wronged by another is a very common frailty of humanity, but .such belief is not necessarily an insane delusion.” (1. c. 456.) The fact that a person is frequently excessively intoxicated does not necessarily mean he lacks testamentary capacity. In those situations the trier of the facts must appeal from the -testator drunk to the testator sober. Appellants cite Sharp v. Losee, 109 Kan. 211, 199 Pac. 94, where the testator was also a very elderly man although neither “senile dementia” nor “insane delusions” as such were discussed. The facts were highly controversial. A jury aided the court and the trial court made findings of fact of its own which were supported by substantial evidence — and this court would not disturb them. Fuller v. Williams, 125 Kan. 154, 264 Pac. 77, concerned the purported will of a man who had been several times an inmate of an insane asylum and upon one occasion a commission which adjudged him insane found that he had permanent delusions of being persecuted. This court reversed the trial court upon several errors including a refusal to admit competent testimony. However, “insane delusions” were discussed in the opinion, thus: “. . . We shall not prolong this opinion by a statement of the evidence bearing on this question, but since the case is to be tried again, simply mention it as a question that should receive due consideration. The rules of law pertaining to such insane delusions are sufficiently discussed in former decisions of this court (citing cases) and other authorities readily accessible. It is familiar law that one laboring under an insane delusion which influences him to make a will in a certain way does not possess testamentary capacity.” (1. c. 167.) In Steward v. Marker, 143 Kan. 860, 57 P. 2d 75, the trial court sustained the will and made findings of fact. Again, this court refused to disturb those findings when it was determined there was substantial evidence to support them. The opponents of the will claimed testator suffered from an insane delusion and therefore did not have testamentary capacity. Reference was made to the rule stated in Harbison v. Beets, supra. An exhaustive search does not bring to our attention any other cases where this court has considered the subject of “insane delusions”; but for a collection of the recent cases from other jurisdictions, and for an elaborate discussion of the subject as it pertains to the law of Wills, see the annotation in 175 A. L. R. 882-975. From a careful study of the record before us, it appears that the testator probably was mistaken in his belief that his two daughters did not care for him or that they had turned against him. There was no positive evidence that they had done so and there was some evidence that they were fond of their father. But neither of the daughters testified as to any love for their father at the times of the divorce action, nor did they attempt to negative his purported belief that they had- sided with their mother. The trial court was of the opinion (according to the findings) that testator was mistaken in his belief, but found that he nevertheless did believe his two daughters had turned against him in the divorce case and sided with their mother. Testator may have known some facts that the witnesses did not know, which caused him to believe as the trial court found he did believe. The property disposed of by the will was his property, and while it seems somewhat incredible that a father would disinherit his two daughters, he had that right if he wished. Cyrus Millar knew he was making a will and said at the time of its execution that it was his will and he had read it. He told his banker in May, 1945, that he didn’t want his daughters to have his money because they wouldn’t do what he wanted them to do. The daughters did not deny having refused any request of their father. A witness of appellants testified that Cyrus Millar told him in the summer of 1946 that he regretted not having left his daughters anything — but that was several months before testator died. Perhaps a matter of some concern to the trial court in making the findings here was the fact that Cyrus Millar, after making the will on May 5, 1945, lived only some three weeks in the home of his mother and then lived elsewhere on his own until February 26, 1947, during which time (a year and nine months) he could have made a new will at any time. However, it is not necessary to speculate upon the reasons behind the findings of the trial court that there was no delusion, as long as there is substantial evidence to support the findings. We conclude there is. It is next contended by appellants that testator’s mother and principal beneficiary under the will exercised undue influence upon him sufficient to make the instrument her will rather than that of decedent. Appellants argue that testator’s physical condition while living in his mother’s home provided an opportunity for the exercise of undue influence over him; that testator’s mother had the ability and disposition to unduly influence testator; that she disliked his daughters and coveted his property. True, the evidence above narrated and included in the record before us does show that testator was in his mother’s home about three weeks and that the will was executed on the third day of his presence there while recu perating from a severe drunk of a few days before. It shows further that testator’s mother obtained a doctor for him and that she wrote a letter for him discharging an attorney who had previously represented him and who was replaced by an attorney who also represented the mother. One witness quoted Cyrus as saying his mother wanted the ranch, and another that he was afraid of her. Summed up, appellants’ argument is that testator’s mother had the desire for his property and she had the ability and the opportunity to unduly influence him. Is that sufficient to reverse the finding of the trial court that there was no undue influence, even without considering any other circumstances which the trial court may have thought persuasive to his finding? We cannot say it is. Power, opportunity, and purpose to exercise undue influence, or possibility, conjecture, surmise and suspicion that undue influence has induced a will, alone cannot authorize the inference that such influence has in fact been exercised. (Ginter v. Ginter, 79 Kan. 721, syl. ¶¶ 6, 7, 101 Pac. 634.) We find no trace of evidence in the record that the mother of testator, directly or indirectly, actually entered into the execution of the will. In In re Estate of Hall, 165 Kan. 465, 470, 195 P. 2d 612, we said : “Natural human desire, motive and opportunity to exercise undue influence do not alone authorize the inference it was in fact exercised. Nor is mere suspicion or possibility of parties having induced the making of a will favorable to them as beneficiaries enough to justify a finding of undue influence. . . . “The test of undue influence, sufficient to destroy a will, is that it must amount to such coercion, compulsion and restraint as to destroy the testator’s free agency, and by overcoming his power of resistance, obliges or causes him to adopt the will of another rather than exercise his own. . . . The burden of establishing undue influence, of course, rests on him who asserts it.” (p. 470.) The burden was on appellants to prove undue influence by substantial evidence so that the trial court might determine by whom and in what manner it had been exercised and the extent to which it had affected the will. We conclude that appellants did not meet this burden in the court below, and the finding of the trial court that there was no undue influence must be sustained. It is also urged by appellants that the trial court failed to give proper weight and consideration to the testimony of Doctor Con-well, a physician who qualified as a specialist in nervous and mental diseases. There is nothing in the record to indicate that the trial court did not give the doctor’s testimony the weight and consideration to which it was entitled. It should not have been considered to nullify all nonexpert testimony in conflict with it. Nonexpert testimony is competent on the question of mental capacity, and the trier of the facts is not bound to adopt the views and opinions of a physician to the exclusion of other nonexpert testimony regardless of the physician’s expert qualifications. (Mingle v. Hubbard, 131 Kan. 844, 850, 293 Pac. 513; In re Estate of Hall, supra.) There was argument and there has been some discussion concerning the fact that the testator lived a little more than one year and nine months after he made his will on May 5, 1945, with the assertion that during such a long-period in which he was living apart from his mother and conducting his own business affairs, he had ample time to make a new will had he cared to do so. It is quite well settled, of course, that the time when a will is made is the time of primary importance to be considered in estimating testamentary capacity or any question of undue influence over the testator. However, evidence of capacity, conditions and circumstances existing after that time may be considered only to serve as an aid to determine the primary question (In re Estate of Hall, supra). We have discussed at some length the testimony adduced at the trial of this case, and perhaps have labored it too long because of the rule so well established, that appellate courts are concerned only with the evidence which supports the findings and not with evidence contrary thereto. The only question before us is whether there was substantial testimony which could have convinced the trial court in making its findings. There is such testimony and we are precluded from disturbing the findings made thereon. We have given this case a patient perusal and discovering no error, the judgment is affirmed.

The opinion of the court was delivered by Smith, J.: This was a proceeding wherein one claiming to be an heir of decedent sought in probate court to have that relationship established. The probate court found that he was not an heir. On appeal the district court found that he was an heir. The acknowledged heir has appealed. The facts are as follows: Johanna Strachen died intestate leaving no direct heirs. Her estate went to brothers and sisters. One brother John J. Reeble predeceased her. His share of decedent’s estate would go under the statute to his children. He left one child, ■ Iryne Jensen, about whom there is no question raised. All parties concede that she is John J. Reeble’s legitimate child. Sometime after administration of the estate had begun Cecil R. Reeble filed his petition, in which he alleged that he was the son of John J. Reeble, a brother of the decedent; that John died leaving him and Iryne as his only heirs, and that he was entitled to one-half of the share of Johanna’s estate that would have been inherited by his father, if he had outlived her. Iryne filed an answer denying this. The trial in probate court was on the issue thus raised. The probate court decided that issue in favor of Iryne. Cecil appealed and on the trial in district court the court found he was an heir. Iryne filed a motion for a new trial on the statutory grounds. This waá denied. On appeal to this court she sets out four specifications of error — one, error in entering judgment that Cecil is an heir of Johanna; two, entering judgment that Cecil is the legitimate child of John J. Reeble; three, entering judgment that Cecil is an heir at law of Johanna and the legitimate child of John because it was not sustained by any competent evidence; and four, admitting incompetent and improver evidence. About many of the facts there was no dispute. John J. Reeble and Bertha Breeding were married in December, 1896. They separated in April, 1897. In May of that year John secured a divorce from Bertha. This decree of divorce was vacated by the district court of Lyon county on May 12, 1897. The young people had been living at Emporia but after this separation Bertha returned to Kansas City and sometime thereafter John went to Nebraska. At any rate, they both returned to Emporia in the spring of 1898, From here on the evidence is not so direct and positive. However, there was substantial testimony to sustain the finding of the trial court that “John Jacob Reeble and wife Bertha Reeble lived together and cohabited as husband and wife until the latter part of May, 1898, at which time Bertha Reeble went to live with her mother in Kansas City, Kansas.” Bertha testified also that sometime in April, 1898, she broke her ankle and when the doctor was treating her for that she learned for the first time that she was pregnant. On cross-examination Bertha testified that she had never filed a suit for divorce from John. At that point counsel for Iryne as a part of the cross-examination offered the files of the district court of Lyon county in a case entitled “Bertha E. Reeble v. John J. Reeble, No. 9411.” The petition was for a divorce on account of nonsupport and was filed January 10, 1898. The voluntary entry of appearance of John was filed on the same date. The journal entry recited the personal appearance of Bertha and granted the divorce on February 1, 1898. The entry on the judge’s trial docket was to the same effect and was introduced as part of the redirect examination of Bertha. Appellee was born to Bertha in Kansas City on November 22, 1898. He never saw John J. Reeble. John furnished Bertha the money to go to Kansas City and sent her money for. a while after she went there. He did not go to Kansas City although he had agreed to and after a while they quit writing to each other. After Cecil was born she wrote and told John about it but he never answered her letter. There was other corroborating evidence but the above are the essential facts. This action was tried on the theory that Cecil was claiming to be John’s legitimate son, not on the theory that he was an illegitimate son, who had been recognized. The trial court found in his favor on both issues. At the outset appellant points out that since Cecil was born on November 22, 1898, his birth occurred 295 days after the divorce was granted and 316 days after the suit was filed. She also points out that the normal period of gestation is 280 days. Appellant recognizes the rule that a child born in lawful wedlock is presumed to be legitimate. She argues, however, that Cecil was not born in wedlock nor within a normal period of gestation thereafter. She argues from those facts that there is no presumption of Cecil’s legitimacy. Bertha testified that John was the father of her child. She is the only person who could so testify. If only one man had inter course with her and she had a baby, then that man was the baby’s father. In Nolting v. Holt, 113 Kan. 495, 215 Pac. 281, we said: “Its mother knows who the father was. Her evidence is the best evidence, and justice to the child requires that she be a competent witness to its paternity.” (p. 496.) See, also, Lynch v. Rosenberger, 121 Kan. 601, 249 Pac. 682. If the trial court believed the testimony of Bertha that settled the issue of whether Cecil was John’s son. On the issue of legitimacy, however, we must look further. Appellant argues that we should consider the evidence and the unusual length of time that elapsed either after the divorce action was begun January 10, 1898, or after the divorce was granted February 1, 1898, and November 22, 1898, when appellee was born, and hold that on account of the unusual length of that period the judgment of the trial court that appellee, the legitimate son of John J. Reeble, was not supported by any competent evidence. At the outset there is sound authority to the effect that a child born after parents have been divorced will be presumed to be legitimate where conception took place before the divorce decree was entered. The rule is stated in Haugen v. Swanson, 219 Minn. 123, 16 N. W. 2d 900, as follows: “. . . Presumption of legitimacy of child conceived during period in which husband and wife were occupying same dwelling house and were alone except for presence of minor children is conclusive, notwithstanding divorce proceedings are pending.” Also note Boyers v. Boyers, 283 Ky. 1, 140 S. W. 2d 626, where the court held: “The separation or divorce of husband and wife before the birth of a child .begotten during wedlock does not destroy the presumption of its legitimacy, but reason warrants lessening of the presumption according to the relations of the parties and all the circumstances.” The language further in a discussion of the point is so clearly in point here that we quote further: “But throughout this development to the present day, the interests of society, expressed as public policy, the presumptions of virtuous conduct on the part of a wife, and the protection of an innocent child from the cloud of bastardy, demand perhaps the strongest sort of evidence required in the establishment of any legal right in order to overcome the presumption that a married man is the father of a child begotten or born to his wife during wedlock. The force of this rule is so positive that it is generally held by the courts that the testimony of neither the husband nor the wife is competent to prove illegitimacy of a child born in wedlock, particularly if access within a possible period of gestation be shown. 7 C. J. 944; Annotations, 60 A. L. R. 380; 68 A. L. R. 421; 89 A. L. R. 911; Goss v. Froman, 89 Ky. 318, 12 S. W. 387, 8 L. R. A. 102; Veron’s Adm’r v. Veron, 228 Ky. 56, 14 S. W. (2d) 185. This reference is made not as a decision in this case, for the parties waived any incompetency of such evidence, but to emphasize the policy of the law and the burden that the husband must carry to disprove paternity. • The separation or divorce of the husband and wife prior to the birth of a child does not destroy the presumption of its legitimacy if it was begotten before the divorce. 7 Am. Jur., ‘Bastards,’ Section 19; 7 C. J. 942. However, reason warrants a lessening of the presumption according to the relations of the parties and all the circumstances.” (p. 4.) See, also, Jackson v. Jackson, 182 Okla. 74, 76 P. 2d 1062. As to the question of whether conception took place before or after February 1, appellant asks us to hold that it could not have taken place before that date on account of the lapse of time therefrom, 295 days or 15 days more than the normal period. We passed on an analogous question in State, ex rel., v. Law, 93 Kan. 357, 144 Pac. 232. There the question was legitimacy of an infant born two hundred and seventeen days after the mother testified defendant came to her home and had intercourse with her. The argument was made that on account of the shortness of time it would have been impossible for conception to have taken place when the mother said it did. We did not agree with this argument and approved what was said in 3 Wharton and Stilles’ Medical Jurisprudence to the effect that while the average period of gestation is 275 days there are many variations and the period has been known to be protracted to 344 days. We also quoted Williams on Obstetrics to the effect that it had been known to be as long as 329 days. We cited this opinion with approval in State, ex rel., v. Strevey, 138 Kan. 646, 27 P. 2d 253. That case was one where the child was born a shorter time than normal after conception. See, also, 2 Taylor’s Principles and Practice of Medical Jurisprudence, 8th ed., p. 54, Gonzales, Yance, Helpern Legal Medicine and Toxicology, p. 312, and Glaister, Medical Jurisprudence and Toxicology, 8th ed., p. 334. Courts as a rule avoid wherever reasonably possible holding a child to be illegitimate. To so hold here would require us to say as a matter of law that on account of the time that had elapsed there was a presumption that conception took place after February 1. We will not do that. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Schroeder, J.: This is a direct appeal by the defendant in a criminal action resulting from a conviction of statutory rape in violation of K. S. A. 21-424. Various trial errors are asserted challenging the trial court’s jurisdiction, the validity of the information and the admission of evidence. The defendant, Gene Jones (appellant) was originally charged in a complaint which alleged the commission of the offense of statutory rape “on or about the 12th day of April, 1968.” Thereafter a preliminary hearing was conducted on the 16th day of May, 1968. The defendant appeared with court-appointed counsel. Following the preliminary hearing an original information was filed alleging the offense occurred “on or about the 12th day of April, 1968.” On the morning of the 10th day of June, 1968, subpoenaes were issued by the defendant to three witnesses for the purpose of establishing an alibi for the date of April 12, 1968. About four hours after the issuance of these subpoenaes the state filed an amended information charging that the offense occurred “on or about or between the 6th day of April, 1968, and the 12th day of April, 1968.” The original date set for trial was June 14, 1968. Thereupon the defendant moved for and obtained a continuance of the trial to the September term of court. He was formally arraigned on October 15, 1968, on the amended information and a jury was impaneled to hear the case. On the following day the case was submitted to the jury and it returned a verdict of guilty as charged in the amended information. Starlette Armentrout, the alleged victim, was the seven year old daughter of Karen Gay Jones. At the time in question she lived with her mother and the defendant and four sisters and one brother in the city of Bucklin, Kansas. Starlette had one other sister who was a patient in the Parsons State Hospital in Parsons, Kansas. Karen Jones had been married to Conrad Armentrout who was the father of all of the children. This marriage ended in divorce with the custody of all children going to the mother. In the month of August, 1967, Starlette’s mother met the defendant and at the end of September, 1967, the defendant began living with the family, although he and Starlette’s mother did not enter into a formal marriage ceremony until the 20th day of April, 1968. The family lived in Bucklin, Ford County, Kansas, where the defendant was employed by Albert Brau as a well driller. Starlette attended public school in Bucklin and was in the second grade. On the 12th day of April, 1968, Starlette was admitted to the Greensburg, Kansas, hospital with severe bleeding from her vagina. She remained hospitalized for almost one month. Upon her release from the hospital, she, at the direction of the juvenile court, went to live with a foster family in Greensburg, Kansas. The alleged crime was brought to light through a rather complex series of events. Starlette’s maternal grandmother, Mrs. Archie Thompson, lived about one block from the home of Starlette in the city of Bucklin. The grandmother observed that Starlette had missed school on Monday, April 8, 1968, but attended school the remainder of the week. It was not until approximately 8:00 o’clock on the evening on Good Friday, April 12, 1968, that she was taken to the hospital in Greensburg with severe hemorrhaging from her vagina. Upon examination by Dr. Bradley later in the evening, the defendant and Starlette’s mother were told that Starlette had been molested. The doctor was told by Starlette’s mother that the injury had been received by a fall on the stairs at home, and upon first examination the doctor had little reason to suspect anything else. Throughout the trial Starlette’s mother testified to nothing which would implicate the defendant in the crime. Starlette who also testified was a most reluctant witness. On the 17th day of April, 1968, information first came to light which eventually led to the defendant’s prosecution. On that date Mrs. Thompson visited Starlette in the hospital and questioned her. In response to her grandmother’s questioning as to what had actually happened to put her in the hospital, the grandmother testified: "She was very upset. She began to kind of cry, and she said, ‘My daddy took me out and hurt me.’ And I said, ‘What did he do?’ And she said, ‘Well, he put something down there.’ I said, ‘What do you mean?’ And she said, ‘You know what I mean.’ And she became more and more upset. And I said, ‘Where did he take you?’ And she said, ‘It was in the car out in the country.’ ” Dr. J. R. Bradley, the examining physician, testified he inquired of the mother when Starlette was brought to the hospital how the injury happened. He had observed the child had a tear in her vagina. The mother told him the child had fallen on a stair and this is the way it happened. He testified the little girl seemed to agree with her mother—that she had fallen on the stair. When treatment for what appeared to be an external injury did not stop the bleeding, a more detailed examination was given and the injury was found quite severe. She was bleeding from numerous areas back up into the vagina, and the vagina appeared to be abnormally distended. The doctor felt a stair could not possibly have caused the type of tear and injury that this little girl had. He said it had to be something very large forced into the vagina, something rather pliable and something that could tear rather than cut. Actually, when the injury was inflicted is one of the primary points of contention in this case. At the preliminary hearing Dr. Bradley testified he thought the injury occurred within two hours prior to his examination, which would make the occurrence on the 12th day of April, 1968. Upon examination at the trial, however, Dr. Bradley testified it was entirely possible the injury could have been older than what he suspected. He explained this by saying there would be a clotting of the blood right in the area where the tears would have occurred which would have shut off this bleeding; that the vagina will hold clots for a period of time actually. He further said it was possible the child was injured approximately five or six days prior to the 12th. Evidence elicited by leading questions put to Starlette upon her examination indicated the offense occurred after the movies on the Sunday night before she went to the hospital. The only evidence as to the date upon which the children were taken to the movies by the defendant was Saturday evening, April 6, 1968. Starlette also testified it was the night of “Saturday, Sunday.” For the most part Starlette testified by giving affirmative answers to leading questions. From such testimony of Starlette it may be garnered the defendant took her out in his car in the country, took her underwear off, and committed the offense of statutory rape. Starlette also testified she promised the defendant she “wouldn’t tell.” The appellant first contends the district court of Ford County, Kansas, had no jurisdiction over the alleged offense because the evidence clearly failed to establish venue of the offense in Ford County. The appellant herein was charged with the crime of statutory rape alleged to have been committed in Ford County, Kansas. Under K. S. A. 62-401 offenses committed against the laws of this state shall be punished in the county in which the offense is committed except as may be otherwise provided by law. This statutory provision is merely a codification of Section 10 of the Bill of Rights of the Constitution of the state of Kansas which guarantees to the accused in a criminal prosecution the right to a “speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” It is established by our decisions under the provisions of 62-401, supra, the venue of an offense is jurisdictional, and it must be proved to establish the jurisdiction of the court. It is not necessary to prove the jurisdictional facts of venue by specific question and answer that the offense occurred in the county. They may be established by other competent evidence showing the offense was committed within the jurisdiction of the court. It has been said, however, to avoid prejudicial error the facts of venue ought always to be firmly established by the state. (State v. Fields, 182 Kan. 180, 318 P. 2d 1018, and Addington v. State, 199 Kan. 554, 431 P. 2d 532.) The city of Bucklin is located within Ford County in the extreme southeast comer, being approximately five miles from Kiowa County on the east and six or seven miles from Clark County on the south. It is the appellant’s contention the best evidence offered by the state to prove that the offense was committed within Ford County was the testimony of Starlette that it occurred in her daddy’s car in the country on Sunday night after the movies. It is argued this evidence raises the distinct possibility that the alleged offense took place in one of the adjoining counties and not in Ford County. The appellant concludes there is no competent evidence in the record to prove the jurisdiction of the Ford County district court. The place where the offense occurred is a question of fact just as any other question to be determined by the jury. Among the instructions given to the jury was one which required it find beyond a reasonable doubt that the act complained of occurred within Ford County, Kansas. By its verdict of guilty the jury did find from the evidence presented that the offense occurred in Ford County. Considering the entire record presented in this case, we cannot say the evidence upon which the jury based its finding was insufficient to sustain the finding that the offense was committed in Ford County. The appellant’s family lived in Bucklin, the children were taken to the movies in Bucklin on the evening of Saturday, April 6, 1968, and there is no indication in the record the appellant drove an extended distance into the country on the night in question. We therefore conclude the district court of Ford County had jurisdiction to try the offense. (See In re Rockwood, 146 Kan. 386, 69 P. 2d 703.) The appellant specifies that the district court erred by allowing the state to proceed to trial upon the amended information, which was so indefinite as to deny the appellant an adequate opportunity to prepare his defense, and in submitting to the jury that portion of instruction No. 4 which encompassed the ambiguous allegation as to time of commission of the alleged crime, all to' the prejudice of the rights of the appellant. It may be said the witnesses called by the appellant to testify on his behalf established an airtight alibi as to the commission of the offense on the 12th day of April, 1968. It was established that the appellant had left for work on that day drilling a water well at some distance from the home prior to the time Starlette arose in the morning, and did not arrive home until after she had been taken to the hospital in Greensburg. The appellant argues the trial court refused to make the state elect or specify the specific time upon which it relied for the occurrence, and the obvious effect was to foreclose the appellant from availing himself of a legitimate defense of alibi. He points out the evidence presented at the preliminary hearing clearly established that the injury to the girl occurred on April 12, 1968; that the original information was prepared in accordance with such evidence; but that when the defendant had established an airtight alibi for that date tihe state, realizing the vulnerability of its position, chose to hide behind the cloak of vagueness by amending the information to allege an indefinite and unascertainable time. This, it is contended, resulted in gross injustice and unfairness to the prejudice of the rights of the appellant. The appellant further argues the state knew the nature of the testimony to be elicited from its witnesses—that Starlette testified the act took place on Sunday evening after the movies. This date, it is argued, was ascertainable and available to the state before the time of trial. The appellant contends he first became aware of the alleged date during the course of the trial and had no opportunity at that point to establish an adequate defense of alibi for a stated time. It has been held where a defendant is not misled or prejudiced in making his defense by the allegation concerning the date of the crime charged, that date is unimportant, and a conviction may properly follow upon sufficient proof of the commission of the offense at any time within the provisions of the statute of limitations. (State v. McCarthy, 124 Kan. 20, 257 Pac. 925, Syl. ¶ 3.) In State v. Wagoner, 128 Kan. 299, 278 Pac. 1, the complaint charged the defendant with the crime of statutory rape within two years past, which was said to be notice to him that any charge or act within the time limited might be introduced in evidence against him and that he might be tried for any act within that time. There the court required the state to elect which occurrence it would rely upon for a conviction. The state made the choice and a conviction was obtained on the charge. In cases of this nature the crucial point is whether the defendant was in any way prejudiced because of the discrepancy in dates or the manner in which the appellant was charged in the information. (State v. Robertson, 190 Kan. 771, 378 P. 2d 37.) Here the appellant on motion was granted a continuance from the June setting to the September term for a trial which commenced on October 15. After the amendment of the information the appellant had more than five months to prepare for trial, during which time he was adequately represented by counsel. Under the circumstances we cannot say the appellant was prejudiced by the allegation that the crime occurred within a seven day period. Here the appellant was charged with the offense which severely injured Starlette. This was made evident at the preliminary hearing. The subsequent filing of the information and its amendment did not change the specific act for which the appellant was charged. The discrepancy in dates was explained by the evidence at the trial. (See State v. Robertson, supra.) Here the defendant in various ways objected to the indefinite period of time stated in the amended information, but the record does not disclose the defendant at any time invoked the provisions of K. S. A. 62-1341 to require the state to definitely state the time and place “in order to enable him to offer evidence in support of a contention that he was not present.” The appellant specifies the district court admitted into evidence testimony which was not competent or admissible and which was prejudicial to his rights. The appellant first directs our attention to the testimony of Starlette. K. S. A. 60-417 now governs the capacity of a witness to testify. This statute reads in pertinent part: “A person is disqualified to be a witness if the judge finds that (a) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth. . . The rules of evidence in the new code were discussed in State v. Poulos, 196 Kan. 253, 411 P. 2d 694, cert. denied 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63, wherein the provisions of K. S. A. 60-407 were said to be limited by 60-417, supra. The appellant argues under the foregoing statute it is possible a witness might fully understand the nature of the oath and might be competent to perceive and remember facts, but if he cannot adequately express himself concerning the matter about which he testifies, he should be disqualified under the provisions of 60-417, supra. The trial court, after conducting a preliminary inquiry out of the jury’s presence as to Starlette’s capacity to testify, found she was capable of understanding the duties of a witness and the meaning of testifying to the truth as required by the oath. At the appellant’s request Starlette was examined by a psychiatrist. He concluded “her effect in discussing the incident was appropriate to the circumstances and from the clinical examination we have no reason to suspect that Starlette is lying or making up the material she communicates.” While the appellant admits Starlette apparently understood the nature of the oath, he argues it was impossible to ascertain whether she could adequately express herself “concerning the matter” so as to be understood by the jury. It is said, only after she had testified before the jury could it be determined whether she could adequately express herself as required by the statute. The appellant contends at no time could it be said that Starlette “expressed herself” concerning the matter. In this connection, it is argued, she was examined by leading questions which brought about only the response of “yes” or “no” concerning critical elements of the crime. The general rule concerning the testimony of young children was reviewed in State v. Gaunt, 98 Kan. 186, 190, 157 Pac. 447, where the court upheld the trial court’s decision to allow a five year old to testify. There it was held the question of whether a person of tender years is competent to testify is a question to be determined by the trial court. Whether leading questions should be permitted in any particular case rests in a large measure in the discretion of the trial court. Unless it appears that there has been an abuse in the exercise of this power of discretion, a judgment based on such evidence will not be disturbed. (State v. Rowland, 176 Kan. 203, 204, 270 P. 2d 211.) The appellant concedes that the capacity of a witness to testify is ordinarily left to the discretion of the trial judge, but he contends in the present case the record reflects an abuse of that discretion. The appellant also concedes the court has on numerous occasions permitted what is commonly referred to as “leading questions,” particularly when the witness is a child of tender years, hut argues the questions in the instant case were not designed to simply assist the witness, but were suggestive and presented in such a manner as to elicit a particular desired answer. Without unduly burdening this opinion, we have carefully reviewed the testimony of Starlette and conclude the trial court did not abuse the exercise of its power of discretion in permitting Starlette to testify, or in permitting counsel for the state to examine her with leading questions. The appellant was permitted and did cross-examine Starlette in considerable detail in the same way counsel for the state examined her. The record indicates she was capable of expressing herself in language suitable to her age. The credibility of Starlette’s testimony and its weight were questions to be determined by the jury. (State v. Gaunt, supra.) The appellant further contends portions of the testimony of Mrs. Thompson were not proper and were wrongfully admitted. Over the appellant’s objection Mrs. Thompson testified as to a conversation she had with Starlette at the hospital on the 17th day of April, as heretofore related. In 1964 Kansas adopted the code of civil procedure which included “Article 4.—Rules of Evidence.” K. S. A. 60-402 states the scope of the rules as follows: “Except to the extent to which they may be relaxed by other procedural rule or statute applicable to the specific situation, the rules set forth in this article shall apply in every proceeding^ both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced.” Thus, the rules of evidence have been codified and govern in all cases notwithstanding the prior case law which might be inconsistent with the statute. K. S. A. 60-460 deals with hearsay testimony and states in part: “Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except: “(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness: “(ci) Contemporaneous statements and statements admissible on ground of necessity generally. A statement (1) which the judge finds was made while the declarant was perceiving the event or condition which the statement narrates, describes or explains, or (2) which the judge finds was made while the declarant was under the stress of a nervous excitement caused by such perception, . . The testimony of Mrs. Thompson concerning her conversation with Starlette was clearly hearsay evidence. The only question, therefore, is whether it is admissible as an exception to the hearsay rule. The two possibilities that exist are indicated by subparagraphs (a) and (d) above. It could hardly be said the statements made by Starlette to her grandmother were “contemporaneous statements” under exception (d). This would include statements which were made so closely connected with the time and place of the crime as to be a part of the res gestae. (For a discussion of this matter see State v. Langston, 106 Kan. 672, 189 Pac. 153, where a child of tender years was assaulted and made complaint to her mother shortly after the occurrence.) In the instant case the alleged conversation between Starlette and her grandmother took place approximately ten days after the event. The grandmother’s testimony relative to the conversation she had with Starlette is admissible, however, under subparagraph (a) as an exception to the hearsay rule. The statement was previously made by Starlette, who was present at the hearing in the courtroom and available for cross-examination with respect to the statement and its subject matter. The statement was made by the grandmother under oath in open court and would have been admissible had Starlette been testifying as a witness. The appellant contends the critical element of this exception is not the physical presence of the declarant, Starlette, but her availability for cross-examination. Thus, it is argued, we are back to the original problem of Starlette’s capacity as a witness. In view of our previous holding that the trial court did not err in finding Starlette was competent to testify as a witness, we find no merit to this point asserted by the appellant. Starlette was available and was cross-examined by the appellant on matters concerning which the appellant desired to cross-examine her. The appellant next specifies the evidence submitted to the jury was insufficient to establish the elements of the alleged offense, and did not establish the elements set forth in the instructions. Therefore, the verdict of the jury was contrary to law and the evidence, and was not supported by competent and sufficient evidence. The jury was instructed by instruction No. 4 as follows: “Before the defendant can be convicted of the crime of statutory rape, as charged in the Information, the State must prove to your satisfaction and beyond a reasonable doubt each and all of the following elements of such crime, to-wit: “1. That the defendant, Gene Jones had sexual intercourse with the said Starlette Armentrout. “2. That the said Starlette Armentrout at said time was a female person under the age of eighteen years. “3. That the act complained of occurred in Ford County, Kansas, and on or about or between the 6th day of April, 1968, and the 12th day of April, 1968. “If the State has proved to your satisfaction beyond a reasonable doubt each and all of the above essential elements then you should return a verdict finding the defendant guilty as charged in the Information, but if the State has not so proved or if the evidence in the case leaves in your minds a reasonable doubt as to any of said essential elements, then you should return a verdict finding the defendant not guilty.” Cases upon which the appellant relies in reviewing the sufficiency of the evidence are State v. Doyle, 201 Kan. 469, 441 P. 2d 846; and State v. Wheaton, 149 Kan. 802, 89 P. 2d 871, the latter case involving statutory rape. The first element argued by the appellant is that there was no actual penetration into the body of the female by the sexual organ of the male to complete the act of sexual intercourse, as defined by the court in its instruction. The thrust of the appellant’s argument on this point is that at no time did Starlette make any complaint of the alleged conduct to her mother, who would be the natural object of her confidence, nor did she make complaint to her teacher in school, who testified for the appellant. In this connection it is to be noted Starlette attended school the 9th, 10th, 11th and 12th of April, 1968, and was observed by her teacher who testified that the child exhibited no indication that she had any pain. The appellant also relies on the fact that none of the normal tests were conducted by the doctor to determine if the child had experienced actual intercourse. The appellant relies on the quotation from 52 C. J., Rape, § 118, p. 1087, in State v. Wheaton, supra. In view of Starlette’s testimony that she promised her daddy she would not tell, and the nature of her mother’s testimony, the appellant’s argument concerning lack of immediate complaint on the part of Starlette loses its significance. Viewing the evidence of Starlette and the doctor who treated her in the light most favorable to the state, we think this point requires no further consideration. The jury was warranted in finding from the evidence the act of sexual intercourse actually took place between the appellant and Starlette. The record of Starlette’s testimony before us reveals a description of the incident in a style and manner appropriate to a seven year old child. When she expressed herself she did not use a sophisticated vocabulary, but this is not required or to be expected. She was capable of being understood by the jury and she was emphatic at times. Her simple explanations were appropriate. The appellant does not challenge the age of the child but proceeds to reassert his argument that the evidence does not disclose beyond a reasonable doubt the “act” occurred in Ford County, Kansas, “on or about or between the 6th day of April, 1968, and the 12th day of April, 1968.” Mrs. Thompson, the child’s grandmother, testified when Starlette missed school on Monday, April 8, 1968, “she was bleeding some and didn’t feel good.” There was testimony from Mrs. Thompson and another witness that Starlette’s mother said Starlette had passed a large clot of blood five or six inches long while in the bathroom immediately before she took her to the Greens-burg hospital. This was denied by Starlette’s mother when she testified for the appellant, but tends to confirm Starlette’s testimony that the offense occurred after attending the movies “Saturday, Sunday” night, which would be the 6th or 7th of April, 1968, and the explanation of the doctor that it was possible the injury was inflicted five or six days prior to his examination of Starlette. The elements of time and place in other respects have previously been discussed and merit no further attention. We hold the evidence presented by the record is sufficient to uphold the establishment of each and every element of the crime charged, and to uphold the verdict of the jury. The appellant specifies the district court was guilty of misconduct in the presence of the jury, which was prejudicial to his rights. In trying this matter the trial judge administered the oath to Starlette himself prior to her testimony, whereas the clerk of the court administered the oath to each of the other witnesses who testified in the case. Prior to administering the oath to Starlette the trial judge in the presence of the jury addressed Starlette as follows: “We have explained to you the meaning of an oath. At this time I am going to give the oath to you and ask you to answer yes or no as you will to the question asked. . . .” The appellant argues Starlette should have been treated as any other witness. The appellant says, “It was almost as if the court was reassuring the jury that this witness knew and understood the oath and was going to testify in a truthful manner.” Instruction No. 9 given by the trial court pertained to the credibility of witnesses and the weight to be attached to the testimony of each and all of them. The appellant after referring to instruction No. 9 queries: “Was the testimony of Starlette subject to the same tests of credibility by the jury as that of other witnesses, pursuant to the instruction? Or did the jury simply assume that the question of credibility of this particular witness was removed by the fact that the judge administered the oath and commented upon her understanding of the same? Defendant contends that the procedure followed with reference to Starlette and the comments so made, removed from the jury’s consideration an aspect of the case which is solely within the integrity of the jury, that of credibility of testimony.” The fact that Starlette was a very reluctant witness presented constant problems to the prosecuting attorney, defense counsel and the judge during the course of the trial. The appellant contends the court again violated the principles of proper conduct in an effort to encourage Starlette to testify. In this connection Starlette testified and the court responded as follows: “Q. You absolutely won’t tell what hurt you? “A. I can’t. “Q. Could you tell me why you can’t? Can you tell me? “The Court: Starlette, just go ahead and tell what you have told others before what happened, if it is the truth.” Appellant’s counsel immediately objected to such procedure on the ground it was immaterial what the witness had told others in the past, and also that the statement strongly implied that the judge had heard the story before and believed it to be true, and now was anxious that the jury hear the same story. Thereafter Starlette testified she was frightened with all the people standing or sitting in the courtroom, and the state’s attorney requested the court to reassure the witness, and the court said: “The only thing we want to know is what happened, and nobody is going to harm you or abuse you or spank you or anything like that. You must recognize that you are a mighty nice little girl and sometimes these things have to be told, and we want you to tell just what happened. “Your going to the hospital and the whole story has to come out, why you went to the hospital and what happened and if you will tell us that that is what we want. “Will you do that?” A little later the trial judge again addressed Starlette while she was on the witness stand as follows: “All of these people have children or have children around them and they have to talk over their matters of the children’s problems and they understand, Starlette, and knowing that you have a problem here and they are all understanding of it but it is one of these things that happens in the courtroom that these things have to come out and be told. And if you will just start out and tell us. Lean forward there on the bench and tell us what happened.” The purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant, and it is a part of the duty of the trial judge to see that this end is attained, even though in accomplishing the full development of the truth it sometimes becomes necessary for him to examine and cross-examine the witnesses. Where the trial judge deems it necessary to examine the witnesses he must exercise great care to prevent giving the jury the impression that he is biased against the defendant, and he must not forget the function of a judge and assume that of an advocate. The same rule applies with respect to the credibility of a witness, and 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. The credibility of a witness is a matter to be determined by the jury. (State v. Winchester, 166 Kan. 512, 203 P. 2d 229; and see State v. Marek, 129 Kan. 830, 284 Pac. 424; and State v. Johnson, 201 Kan. 126, 439 P. 2d 86.) The appellant contends, in essence, the foregoing conduct of the trial judge amounted to the judge becoming an advocate of the prosecution and that the statements and comments made by the judge affected the minds of the jury with reference to the credibility of Starlette. It is, therefore, contended the appellant’s rights were prejudiced and that he should be awarded a new trial as a result of such conduct. It must be fully realized cases of this nature, involving a seven year old child as the principal witness, are extremely difficult to try, particularly where the child is reluctant to testify as Starlette was in this case. In the trial of this case Starlette was confronted with the formidable atmosphere of a courtroom packed with spectators and others. She was naturally shy and awed by the court proceedings. The trial judge was obviously attempting to put the child at ease by administering the oath himself. He had previously conducted the preliminary examination of the child concerning her capacity to testify as a witness, and undoubtedly felt he had made some progress in gaining her confidence. The trial judge can administer the oath to a witness as readily as any other authorized officer of the court, and no prejudice results from such procedure, nor does it add extra credence to the testimony of such witness. Upon examination of the entire testimony of Starlette in the record, nowhere did the trial court comment on the evidence; he did not comment on the witness’ credibility; and he did not comment on the weight of the evidence. Furthermore, he did not conduct the examination of Starlette as a witness beyond his attempts to encourage her to answer. He was interested in attempting to ascertain the truth in the case. Viewed in isolation, the trial judge may have worded some of his statements more carefully, but his remarks were entirely appropriate for those of an adult conversing with a child of tender years, who was somewhat reluctant to testify. The jury was properly instructed concerning the credibility of the witnesses and the weight to be given their testimony. On the record presented it must be assumed the jury followed the court’s instructions. The queries of the appellant and his assertions fall in the realm of speculation and conjecture. We cannot say upon review of the entire record of Starlette’s testimony the appellant’s rights were prejudiced by the conduct of the trial court in its efforts to encourage her to testify. Having thoroughly reviewed the record and the various contentions asserted by the appellant, we hold the appellant has failed to make it affirmatively appear the trial court committed reversible error as to any of the points asserted on appeal. The judgment of the lower court is affirmed.

The opinion of the court was delivered by Schroeder, J.: This is a criminal action in which the defendant is charged with selling securities without having registered them with the securities commissioner as required by K. S. A. 17-1255, and with failure to register as a broker-dealer in connection with the sale of such securities as required by K. S. A. 17-1254. Appeal has been duly perfected by the defendant from a conviction on., each count. The underlying question is whether the appellant was engaged in selling securities. The state charged that Thomas C. Hodge (defendant-appellant) sold a security on September 4, 1965, to La Wanda Burkett without registering the security with the securities commissioner of Kansas (Count 1), and that he did not register as a broker-dealer for this transaction (Count 2). The state also charges that the appellant sold a security on or about the 7th day of September, 1965, to Otto Buller without registering the security with the securities commis sioner of Kansas (Count 4), and that he did not register as a broker-dealer for this transaction (Count 5). Numerous other courts were dismissed prior to trial. The facts are not in dispute, the state and the appellant having entered into a stipulation. In fact, the only evidence introduced in the trial court for the jury to consider was the stipulation entered into between the parties and the two exhibits attached to the stipulation. The controversy involves the legal interpretation and implications of these stipulated facts. The stipulation reads: “The defendant agrees that on or about the 4th day of September, 1965, he did approach La Wanda Burkett, that Mrs. La Wanda Burkett did give to Mr. Hodge the sum of $2,500 and that he did leave with her tire receipt in lieu of promissory contract which will be admitted into evidence and shall be marked as State’s Exhibit No. 1. “That on or about the 7th day of September, 1965, Mr. Hodge did approach one Mr. Otto Buller, that Otto Buller did give to Mr. Hodge the sum of $500 and that Mr. Hodge left with him the instrument entitled receipt in lieu of promissory contract. That the receipt shall be marked as State’s Exhibit No. 2. “The person giving the money to Mr. Hodge expected that he repay it according to terms of the agreement. Mr. Hodge promised to pay the money at a date specified in the instruments. “It is agreed that Mr. Hodge was not registered as a broker-dealer and that the instrument entitled receipts in lieu of promissory contract were not registered with the Securities Commissioner’s Office of the State of Kansas.” The stipulation is dated May 16, 1968, and the state’s exhibits Nos. 1 and 2, except for the amounts of money and names, are identical and in the following form: “RECEIPT IN LIEU OF PROMISSORY CONTRACT “Received of _ The Sum of _ dollars, $ _. “This receipt is issued to those persons participating in the special investment offer made by the Tomal Company. It is hereby understood that the Tomal Company shall issue to the above named party a promissory contract which shall have a face value of twice the amount of the above named amount. The following stipulations shall pertain to this receipt and the above mentioned promissory contract: “1. Said contract shall be dated 1 October 1965. “2. Said contract shall have a face value of twice the amount of this receipt or $_whichever shall be greater. “3. Said contract shall be issued only in conjunction with this receipt and no other person or persons shall be entitled to said contract. “4. Said contract shall further stipulate that a payment in the amount of this receipt shall be made no later than 1 April 1966 and one (1) additional payment of the same amount shall be made no later than 1 October 1966. These payments shall constitute any and all monies due the above named person according to the promissory contract. “NO OTHER AGREEMENTS SHALL BE ISSUED OR RECOGNIZED “Witness_ Signed .—._ Dated at_, -, this_day of_, 1965.” Challenges were made by the defendant at various points in the proceeding by a motion to discharge, objections to instructions, in his motion for a new trial, and in a motion for arrest of judgment, raising the points presented by this appeal. The trial court instructed, among other things, that under the stipulated facts the documents in question were securities as a matter of law, and that such transactions were not exempt under the securities act. The trial court also instructed as to the meaning of the word “willfully,” and as to the meaning of “broker-dealer,” “sale,” “sell,” and “offer” or “offer to sell” as used in the Kansas securities act. (See K. S. A. 17-1252.) Contrary to the appellant’s pleas a verdict of guilty was entered upon each count by the jury, and the appellant was sentenced to the Kansas state penitentiary for confinement according to law on each of the counts. Although the “Receipt in Lieu of Promissory Contract” recites that the terms set forth in the receipt will be exactly the same in the promissory contract, the court is informed by counsel for the appellant in his brief that no promissory contract was ever in fact given. The legislative intent and purpose for enacting the “Blue Sky Law” is clear. The purpose of the present act and all previous acts has been to place the traffic of promoting and dealing in speculative securities under rigid governmental regulation and control to protect investors, thereby preventing, so far as possible, the sale of fraudulent and worthless speculative securities. The term “speculative securities” was defined in Moos v. Landowners Oil Ass’n., 136 Kan. 424, 15 P. 2d 1073, as follows: ". . . Speculative securities include those the value of which materially depends on proposed or promised future promotion or development, rather than on present tangible assets or conditions. . . .” (p. 431.) In discussing the previous securities act the court in State, ex rel., v. Consumers Cooperative Ass’n, 163 Kan. 324, 183 P. 2d 423, said: ". . . Article 12, chapter 17, G. S. 1935, was written to prevent fraud in the sale of worthless securities, not to regulate the business of the company nor to raise revenue generally. . . .” (pp. 361, 362.) The court in discussing the previous securities act said in State v. Short, 121 Kan. 233, 247 Pac. 114: “While the statute is not as precisely drawn to avoid debatable problems of interpretation as might be desired, the legislative intent has been to place the traffic of promoting and dealing in speculative securities under rigid governmental control; and the only exemption therefrom is that accorded to the good-faith owner of such securities who acquires them and seeks to sell them on his own account in the ordinary course of business and not for the direct or indirect promotion of any blue-sky enterprise within the purview of the act.” (p. 236.) K. S. A. 17-1252 (since amended by L. 1967, ch. 121 and L. 1968, ch. 386) applicable at all times herein material, defines a security in subsection (j) to include “evidence of indebtedness” and “investment contract,” among other things enumerated, and it includes an “interim certificate” for the right to subscribe to or purchase any of the foregoing items enumerated. The appellant concedes the term “security” as above defined is extremely broad and encompasses practically all types of instruments including a promissory note. However, the appellant contends, the act was not intended to govern this type of a promissory note or this type of a situation. He argues first that there was no sale of any security, and second that this was not a speculative security calling for the protection of the securities act. Counsel for the appellant argues in his brief: “. . . The value of the note given by Mr. Hodge was not based upon promised future promotion or development. Its value was established and agreed to by all the parties according to the conditions existing at the time the money was borrowed. Mr. Hodge was to repay the parties a specific amount of money irregardless of future promotion, development, success or failure of the Tomal Company. Mr. Hodge neither acquired nor sold any speculative security. As a matter of fact, there was no security in existence at the time of this transaction. Perhaps Mr. Hodge brought a security into existence, but the act was not meant to govern this type of business activity.” On appeal this court is confined to the limited record made in the trial court upon the stipulated facts. By confining our review to the points raised by the appellant matters which do not appear in the record cannot be ignored. For example, the stipulation does not disclose the identity of the Tomal Company, the nature of its business, or the extent of its assets. It may therefore be inferred from the appellant’s argument and the record presented that the Tomal Company had no assets, other than those raised from transactions involving the issuance of the Receipt in Lieu of Promissory Contract in exchange for money. Generally the term “security,” which has no precisely defined legal definition aside from statutory provisions, has reference to written instruments, usually for the payment of money or to evidence a debt, and being more than a mere promise of the debtor of a general liability on his part has as collateral to it a pledge of property or some additional obligation. By common usage, howevér, the term has acquired a much broader meaning. It is now generally used to refer to instruments for the payment of money, or evidencing title or equity, with or without some collateral obligation, and which are commonly dealt in for the purpose of financing and investment. Instruments, whether secured or unsecured, which are used for the purpose of financing enterprises and promoting a distribution of rights in or obligations of such enterprises, and which are designed as a means of investment, are termed “securities.” (In re Waldstein, 160 Misc. 763, 291 N.Y.S. 697 [1936]; and United States v. Royal Loan Co., 61 F. Supp. 436 [E. D. Mo. 1945].) In Kansas we are favored with a general statutory definition of the term “security” in the act, as heretofore paraphrased. The language defining a security in K. S. A. 17-1252 (j) presently under consideration is similar to the language in the federal act. (15 U.S. C. A. § 80a-2 [35].) It has been said of the federal securities act that it is remedial in nature, to be liberally construed, and that in appraising contracts for the purpose of determining the applicability of the statute, courts readily look through the form to discover the real nature of the transaction; that labels affixed by the parties are of little moment. (Securities & Exchange Commission v. Bailey, 41 F. Supp. 647 [S. D. Fla. 1941].) Another definition of the term “security” which has received judicial approval is the investment of money with the expectation of realizing a profit through the efforts of persons other than the investor. (Securities and Exchange Com'n v. Universal Serv. Ass’n, 106 F. 2d 232 [7th C. C. A. 1939]; Brown v. Cummins Distilleries Corporation, 53 F. Supp. 659, 663 [W. D. Ky. 1944]; Securities and Exchange Commisison v. Pyne, 39 F. Supp. 434, 435 [D. Mass. 1941]; Sperry & Hutchinson Co. v. Hudson et al., 190 Or. 458, 468 226 P. 2d 501; and 79 C. J. S., Security; Securities, pp. 941, 946.) Looking through the form of the document entitled “Receipt in Lieu of Promissory Contract” to discover the real nature of the transaction, ignoring the label affixed by the parties, we find that the written document is issued to those persons participating “in the special investment offer made by the Tomal Company.” (Emphasis added.) The written document clearly contemplates that the Tomal Company will pay twice the amount of the money advanced by the purchaser to such purchaser in one year’s time, thus making it apparent the financial failure of the Tomal Company in its business venture, whatever it may have been, would result in a failure to pay in accordance with the terms of the written document issued by the appellant. The written document does not say Mr. Hodge will pay according to the terms of the promissory contract, but that the Tomal Company promises to pay in accordance with the terms of the instrument. The appellant’s attempt to establish the transfer of the documents in question (which he chooses to call promissory notes) to Mrs. Burkett and Mr. Buffer as no more than borrowing transactions conveniently ignores the speculative aspect of the transactions and the recital in each document that it is issued to those persons participating in the special investment offer made by the Tomal Company. The transactions in question contemplate the presence of the investment process; that is, the investment of funds in contemplation of making a profit through the efforts of persons other than the investor. (Sperry & Hutchinson Co. v. Hudson et al., supra.) The document entitled “Receipt in Lieu of Promissory Contract” clearly fits within the term “evidence of indebtedness” defined as a security in 17-1252 (j), supra, and by construction easily falls within the term “investment contract” also defined as a security in the act. The transaction evidenced by the document is the kind of transaction the legislature intended to regulate by the securities act. Construing the documents in question, therefore, in the light of the foregoing authorities, we hold, as a matter of law, they are securities within the contemplation of K. S. A. 17-1252 (j), and under the provisions of K. S. A. 17-1255 it was required that such securities be registered. The appellant contends there was no sale or offer to sell a security. The applicable section of the securities act is K. S. A. 17-1252 (h), which in pertinent part reads: “(1) ‘Sale’ or ‘sell’ includes every contract of sale of, contract to sell, or disposition of, a security or interest in a security for value. (2) ‘Offer’ or ‘offer to sell’ includes every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security for value. . . .” The transactions here in question between the appellant and the two purchasers fit precisely in the statutory criteria. The appellant, in the two instances considered by the trial court, clearly was offering to dispose of and did dispose of a security for value. Mrs. Burkett paid the appellant $2,500 in exchange for her security, and Mr. Buller paid the appellant $500 in exchange for his security. Under the federal securities act it has been held that the giving of a promissory note in exchange for a personal loan is a “sale” under the act, where the notes in question were offered to the public. (Llanos v. United States, 206 F. 2d 852 [9th Cir. 1953]; and Securities and Exchange Commission v. Vanco, Inc., 166 F. Supp. 422 [D. N. J. 1958].) The appellant contends commercial paper is exempt from the Kansas securities act by K. S. A. 17-1261 (i). K. S. A. 17-1255 provides in part: “It is unlawful for any person to offer or sell any security in this state, except securities exempt under section 10 [17-1261] or when sold in transactions exempt under section 11 [17-1262], . . .” The only specific exemption asserted by the appellant on appeal to this court is the provision in K. S. A. 17-1261 (i). It is to be noted none of the exempt transactions specifically enumerated in K. S. A. 17-1262 is asserted by the appellant as a ground for reversal in this, action. K. S. A. 17-1261 pertaining to exempt securities provides that sections 17-1255 to 17-1260, inclusive, of the General Statutes Supplement of 1957, or any amendments thereto, shall not apply to any of the following securities: (Subsection (i) provides in part:) “(i) Any commercial paper which arises out of a current transaction or the-proceeds of which have been or are to be used for current transactions, and which evidences an obligation to pay cash within nine (9) months of the date-of issuance, exclusive of days of grace, or any renewal of such paper which is likewise limited, or any guarantee of such paper or of any such renewal: . . It must be conceded promissory notes by the law-merchant fall under the designation of commercial paper. The appellant contends- the instruments referred to in exhibits Nos. 1 and 2 attached to the stipulation are each clearly nothing more than a promissory note containing a promise to repay money within a specified time. He argues it is commercial paper arising out of a current transaction and evidences an obligation to pay cash within nine months from the date of issuance. The fallacy in the appellants argument lies in the fact that 17-1261 (i), supra, extends the exemption only to commercial paper transactions calling for payment within a period of nine months from date of issuance. The reasons for this particular limitation are discussed in “Draftsmens Commentary to § 402 (a) (10)” of the Uniform Securities Act (Blue Sky Law, Loss and Cowett [1958], p. 361). In discussing the reasons for the nine-month exemption in the uniform act it is said: “. . . The period was here fixed at nine months rather than twelve months for two reasons: First, paper with a maturity of more than ninety days, or nine months in the case of agricultural paper, is not currently eligible for rediscount at the Federal Reserve Banks. Secondly, the period in the comparable exemption contained in § 3 (a) (3) of the Securities Act of 1933 is nine months, and the major commercial paper market is a nationwide market, so that paper would have to be restricted to a nine-month maturity in order to be exempted under the federal statute. . . .” The appellant conveniently overlooks the plain fact the documents in question call for final payment one year after the date of issuance. Assuming these documents to be promissory notes, as the appellant contends, they do not fall within the statutory exemption asserted. By selling the securities in question the appellant was engaged in business as a “broker-dealer” as defined in K. S. A. 17-1252 (c), and the provisions of K. S. A. 17-1254 made it unlawful for him to engage in business in the state of Kansas as a broker-dealer without having been registered as a broker-dealer under this section. The next point raised by the appellant is that the trial court erred by instructing the jury regarding the term “willfully” as used in K. S. A. 17-1267. K. S. A. 17-1267 prescribes the penalties for violations of the act and reads in part: “(a) Any person who willfully violates any provision of this act except section 13 [17-1264] or who willfully violates any rule or order under this act, or who willfully violates section 13 [17-1264] knowing the statement made to be false or misleading in any material respect, shall upon conviction be fined not more than five thousand dollars ($5,000) or imprisoned not more than three years, or both; but no person may be imprisoned for the violation of any rule or order if he proves that he had no knowledge of the rule or order. . . .” Over objections ‘ of the appellant the trial court instructed the jury in its instruction No. 2 as follows: “The word ‘willfully’ as used in the charges laid in the Information denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. “In this connection you are instructed that one is presumed to have intended the natural and probable consequences of his voluntary acts.” The appellant contends he was prejudiced by such an instruction because it strikes down the presumption of innocence to which every defendant in a criminal action is entitled. He argues the instruction in effect negates the prosecution’s duty to prove intent as an element of the crime; that the crime the appellant is alleged to have committed is a crime of specific intent. In support of his proposition, the appellant cites Bloch v. United States, 221 F. 2d 786 (9th Cir. 1955), which involved the prosecution of a taxpayer for willfully attempting to evade or defeat the payment of his income tax. The court in Bloch held an instruction to be erroneous and prejudicial. It said the act required a specific intent involving the bad purpose and evil motive of the person accused to evade or defeat the payment of his income tax, and that a specific intent was an essential element in the offense. The instruction was to the effect that a person is presumed to intend the natural consequence of his acts, and the court said it had no place in the case—it being a conclusive presumption which testimony could not overthrow without effectively eliminating intent as an ingredient of the offense. Upon careful analysis the Bloch case and those which follow it must be distinguished from the case presently under consideration. There a specific intent involving the bad purpose and evil motive of the accused to evade or defeat the payment of income tax was required. No specific intent is necessary to constitute the offense where one violates the securities act except the intent to do the act denounced by the statute. (See annotation, Blue Sky Laws, 87 A. L. R. 42, at p. 151.) In speaking of the term “willfully” used in that portion of the Uniform Securities Act, from which K. S. A. 17-1267 was derived and adopted, it is said in Blue Sky Law, Loss and Cowett (1958), p. 273: “As the federal courts and the SEC have construed the term willfully’ in § 15 (b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78o (b), all that is required is proof that the person acted intentionally in the sense that he was aware of what he was doing. . . .” This is the substance of the trial court’s instruction in the instant case, and we cannot say on the record presented that the trial court erred in giving the instruction or that the appellant was prejudiced by it. The next point raised by the appellant is that 17-1267 (a), supra, denies equal protection and due process of the law. The appellant contends a criminal statute must be definite; that those who would or could come within the purview of the statute should not have to guess what acts are prohibited, nor should they have to guess what act or acts they should perform—that the crime committed must be defined in the statute with appropriate definiteness. (Citing State, ex rel., v. Fleming Co., 184 Kan. 674, 682, 339 P. 2d 12; and Winters v. New York, 333 U. S. 507, 92 L. Ed. 840, 68 S. Ct. 665.) The appellant makes specific reference to the proviso in 17-1267 (a), supra, which states, “but no person may be imprisoned for the violation of any rule or order if he proves that he had no knowledge of the rule or order.” Counsel for the appellant argues: “Presumably one could be guilty of violating the act by simply doing what Mr. Hodge did. However, if one were charged with violating a rule or order under the act, he could show his ignorance of the rules and/or orders under this act and not be punished, at least he would not go to jail. In the second instance the statute purportedly assumes knowledge on the part of the culprit, yet if he proves no knowledge, he is excused. Too, the burden of proof in this instance is shifted from the prosecution to the defendant; he must take the stand and prove he had no knowledge of the securities laws. Such an exception is not granted to the person who allegedly violates any provision of the Chapter 17, Article 12, although both phrases above referred to use the word willfully.” It is then argued by the appellant, if knowledge is presumed in one section of the statute, it should be presumed in all sections of the statute. It should be noted 17-1267, supra, is adopted practically verbatim from the Uniform Securities Act, and in this regard the following comment is made in Blue Sky Law, Loss and Cowett (1958), p. 389: “The provision that no person may be imprisoned for violation of a rule or order if he proves that he had no knowledge of it is found in all of the SEC statutes. Since not all states have an Administrative Procedure Act, and administrative rules and orders are not always easy to find, such a provision seems even more essential at the state level. . . .” This provision rather than being unjust and unfair permits one charged under the act to prove he had no knowledge of a particular rule or order, thus offering him an opportunity to obtain relief from certain of the penal provisions of the act. We fail to see merit in the argument made by the appellant that the provisions of 17-1267 (a), supra, are susceptible of more than one interpretation. The act defines a security with as much precision as seems to be advisable and states in language which is understandable that which shall be unlawful. (See Sperry & Hutchinson Co. v. Hudson et al., supra.) The next point raised by the appellant is that Chapter 17, Article 12 fails to provide adequate standards or guidelines to govern the securities commissioner. The securities commissioner of Kansas is charged in K. S. A. 17-1270 (a) with the administration of the act. He is to be appointed by the state corporation commission. K. S. A. 17-1267 (b) provides: “(b) The commissioner may refer such evidence as may be available concerning violations of this act or of any rule or order hereunder to the attorney general or the proper county attorney, who may in his discretion, with or without such a reference, institute the appropriate criminal proceedings under this act.” The appellant contends the legislature failed to establish sufficient standards and guidelines to govern the securities commissioner in that it has vested him with an arbitrary discretion to govern or not govern the rights or property of individuals, and has failed to prescribe a uniform rule of action. The appellant’s argument seems to be that the commissioner has arbitrary power to decide whether a transaction shall be prosecuted on the ground that it is not exempt by K. S. A. 17-1261 (i), as in the instant case. The appellant overlooks the fact that arbitrary power is not vested in the commissioner to prosecute a given violation. Section 17-1267 (b) specifically gives the attorney general or the proper county attorney authority, with or without a reference to violations under the act by the commissioner, the authority to prosecute violations of the securities act. Furthermore, the section is to be construed as giving the attorney general or the proper county attorney the dis cretion to institute the appropriate criminal proceedings under the act, whether the case has been referred to one or the other of them by the commissioner or not. This is consistent with administration of the criminal law generally in Kansas. The appellant’s argument further has no merit because it overlooks the review proceedings provided in K. S. A. 17-1269 where any person is aggrieved with an order or decision of the commissioner. The final point raised by the appellant is that the state failed to prove tire charges contained in the information, and that the evidence was insufficient to prove beyond doubt that a crime had been committed. On this point the appellant argues there can be no crime if there has been no “sale” of a security or “offer to sell” a security, and if this is so, there was no necessity of registering as a broker-dealer. This argument has heretofore been answered, and we hold the stipulation of evidence and the exhibits attached thereto were sufficient as a matter of law to establish that the instruments in question were securities under the Kansas law, and the transactions involved were prohibited by the act and were sufficient to sustain a conviction on each of the four counts in the information. The judgment of the lower court is affirmed.

The opinion of the court was delivered by Kaul, J.: Defendant, Kenneth Fick, appeals from convictions by a jury of forgery in the second degree (K. S. A. 21-608) and uttering a forged instrument (K. S. A. 21-609). The controlling question is whether the evidence establishes forgery. Defendant concedes the evidence might convict him of passing an insufficient fund check (K. S. A. 21-554) or of cheating by false pretense (K. S. A. 21-551), but contends it does not establish the offense of forgery. Thp evidence establishes that in the latter part of April 1967 an automobile owned by Darrell D. Wells was broken into and his billfold and chauffeurs license were taken. On May 12, 1967, defendant, using the name of Darrell D. Wells, opened an account in the Seneca National Bank of Wichita. Defendant executed a signature card in the name of Darrell D. Wells or Linda Wells. He was assigned an account identification number, made a deposit of $25, and was issued a checkbook with the assigned account number printed on the checks. Defendant made no subsequent deposits after May 12, 1967. The account was marked closed on May 17, 1967. During the five day interim the bank account ledger reflected at least twelve entries showing a number of checks, each in the amount of $35 were returned by the bank. The check which is the subject of this prosecution was executed on May 13, 1967, payable to David’s, which was established as David’s Westway Store in Wichita. Nancy Cone [Smith], an employee of David’s Westway, cashed the check. She testified that the procedure followed in cashing a check involved asking for some identification; then laying the identification next to the check and taking a photograph which was intended to show the check, the identification and the face of the person cashing the check. This was accomplished by the use of a photographic instrument identified as a regiscope. Nancy Cone [Smith] identified the state’s Exhibit 2 as being the regiscope picture, showing the face of defendant, the chauffeur’s license of Darrell D. Wells, and the check in question. She further testified that defendant, when asked for identification, presented the chauffeur’s license of one Darrell D. Wells and that the only basis on which she cashed the check, submitted by defendant, was the identification in the form of the chauffeur’s license. She further testified that when she cashed the check she believed the defendant to be Darrell D. Wells. The check in question, marked “insufficient funds,” was returned to David’s Westway. Darrell D. Wells testified as to the loss of his chauffeur’s license and that he applied for and received a duplicate chauffeur’s license. While on the witness stand, Wells examined the signature on the subject check and testified that, although very similar to his, it was, in fact, not his signature. He further testified that the physical description of the driver in the license portion of the regiscope picture and the sequence of numbers on the license reflected therein corresponded with that shown on his duplicate chauffeurs license. Wells further testified that he had not given permission to sign his name to any check to anyone by the name of Kenneth Fick. He further testified that at one time he had an account at the Seneca National Bank but it had been closed prior to 1967. The principal contention'of defendant on appeal is that, although the evidence may establish his guilt of passing an insufficient or no-fund check under K. S. A. 21-554, it does not establish the offenses of forgery and uttering under 21-608 and 21-609, and, therefore, the trial court erred in overruling his motion to dismiss and discharge at the conclusion of the state’s evidence. While more specific language may be used in particular cases, generally, forgery may be defined as the fraudulent making or alteration of a writing to the prejudice of another man’s rights. Three essential elements are generally prescribed: (1) There must be a false writing or alteration of an instrument; (2) the instrument as made must be apparently capable of defrauding; and (3) there must be an intent to defraud. (36 Am. Jur. 2d, Forgery, §§ 1 & 3, pp. 681, 683; 2 Wharton’s Criminal Law And Procedure [12th Ed.], § 621, p. 396.) The terms of our forgery statute (21-608), under which defendant was charged, conform with terminology generally used in statutory and common-law definitions of forgery. (2 Wharton’s Criminal Law And Procedure [12th Ed.]), § 621, p. 396; 37 C. J. S., Forgery, § 1, p. 31; 36 Am. Jur. 2d, Forgery, § 6, p. 684.) The gist of 21-608, pertinent to this case, is: “Every person who shall forge or counterfeit, or falsely make or alter, . . . any . . . check, . . . being or purporting to be drawn on any . . . bank, ... by any other person, . . . shall upon conviction be adjudged guilty of forgery in the second degree.” (Emphasis supplied. ) The offense of uttering under K. S. A. 21-609, as applied to this case, is the exchanging or delivering of a forged instrument, as defined in 21-608, knowing the same to be falsely made or forged. Defendant argues that the mere use of another’s name, under the circumstances of this case, does not constitute forgery. He says that there are no exclusive rights barring the use of any person’s name and the use thereof by another is not unlawful. Defendant concedes that in the event the name of Darrell D. Wells was assumed with the intention to cheat and defraud Wells, such act might be contrary to K. S. A. 21-551 (cheat by false pretense), but he claims it would not constitute forgery. He says there is nothing unlawful in opening a bank account in an assumed name and that when one does so he becomes the owner of that account, irrespective of the name used and only the signature as it appears on the signature card is an authorized signature on that account. Defendant claims that to be guilty of forgery in this case he must have had in his possession a blank check having thereon the electrical code account number assigned to, and owned by, the real Darrell D. Wells, and then signing the name Darrell D. Wells to such check. He asserts the check passed in the instant case was a genuine instrument, inasmuch as the account upon which it was drawn was actually in existence under the name of Darrell D. Wells, the name he assumed. Thus., defendant claims since the check was returned marked “insufficient funds” rather than “unauthorized signature” he could only be guilty of violating K. S. A. 21-554 (insufficient or no-fund check) under which defendant was not charged. In summation, the defense of defendant appears to be that he simply used an alias in opening the bank account and the mere fact that he selected the name of Darrell D. Wells, and used identification under that name in presenting the check and a signature similar to that of the real Darrell D. Wells, does not amount to forgery. In the absence of intent to defraud the position of defendant might be well taken, but such is not the case here. The test is not whether the assumed name is the only authorized signature on the account, but whether the assumed name was adopted with intent to defraud. An intent to defraud is the gist of the crime of forgery (37 C. J. S., Forgery, § 4, p. 34.) In our view, defendant falsely made and forged the check. Under the circumstances attendant here, the writing of the Wells’s name on the check was false. It purported to be what it was not. Defendant did not innocently assume the name of Wells, but opened the account in that name because he had Wells’s chauffeur’s license to use as a means of identification. Defendant purported to be someone he was not. He attempted to impersonate Darrell D. Wells. He made a deposit of $25, but then promptly proceeded to issue checks against the account, each of which was in an amount exceeding $25.. All such conduct was steeped in fraud. Forgery may be committed by using an assumed or fictitious name in signing an instrument with the intent to defraud. (2 Wharton’s Criminal Law And Procedure [12th Ed.], § 630, p. 405.) The question is the purpose for which the name is assumed. The general rule is stated in 36 Am. Jur. 2d, Forgery, § 11, pp. 686, 687: “The crime of forgery may be committed by the signing of a fictitious or assumed name, provided the instrument is made with intent to defraud. The question of intention to defraud is, however, of vital importance, since a person may rightfully and innocently assume and use a name not his own. For example, a person who signs a name but not his own, but one which he has adopted, using it without the intent to deceive as to the identity of the person signing it, does not commit forgery. . . .” We find no Kansas forgery case dealing with the precise question presented here. However, it has been considered by federal courts and the courts of other states. The identical question was before the United States Court of Appeals, Seventh Circuit, in the recent case of United States v. Ackerman, 393 F. 2d 121 (1968). There defendant, by a $50 deposit, opened a bank account in the name of a person whose lost drivers’s license he had found. As in the case at bar, defendant then proceeded to cash checks greatly exceeding the deposit and was convicted of causing a “falsely made and forged security” to be transported in interstate commerce (18 U. S. C. A. § 2314). There—as here—the defendant Ackerman argued the check was not a forged security, but was a genuine instrument inasmuch as the account, upon which it was drawn, was actually in the name of the person whose driver’s license defendant had secured. In the opinion it was stated: “Defendant argues that no intent to defraud was shown. We disagree. Defendant opened the account at the Ohio bank in the name of Pearson. He used Pearson’s lost Illinois driver’s license as a means of identification. Defendant purported to be someone he was not. He then made a deposit of $50, but proceeded promptly to issue against that account, eleven checks ranging from $109.84 to $142.44. All such conduct was steeped in fraud. “In Hubsch v. United States, 256 F. 2d 820, 824 (5 Cir., 1958) the Court stated: '* * * [W]here a person not only takes an assumed name but uses that name to designate a fictional person with characteristics, personality and a semblance of identity, the use of the fictitious name as an instrument of fraud in the impersonation of the fictional person is as much a forgery as though the fictional character was real.’ We agree! “We hold the security (Government Exhibit 9-A) was falsely made and forged security within the meaning of Title 18 U. S. C. § 2314. . . .” (p. 122.) A forged security is defined in 18 U. S. C. A. § 2314 in essentially the same terms as those used in defining forgery in our K. S. A. 21-608 and 609. In Wilson v. State, 220 Tenn. 565, 421 S. W. 2d 91, the defendant signed a check with his own name but held himself out to be another person by the same name. In sustaining a forgery conviction the Supreme Court of Tennessee said: “. . . It is the law in this State, and in others so far as we know that, ‘A person may commit forgery even though. he signs his own name, when his name is the same as that of another person and (1) he signs his name with the intent that the writing shall be received as written by the other person, or (2) impersonates the other person signing an instrument which was to be signed or indorsed by the other person. If, however, there is no intent to impersonate such other person, the offense of forgery is not committed.’ . . . .” (p. 568.) Cases from many states, in support of what has been said, are cited under Sections 629 and 630 in 2 Whartons’s Criminal Law And Procedure [12th Ed.], pp. 404, 405. Defendant claims State v. Swan, 60 Kan. 461, 56 Pac. 750, supports his position that since his signature of Darrell D. Wells was authorized by the bank as the signature on the account, he did not commit forgery by signing that name on a check. Swan stands for the principle that proof a signature was unauthorized is a necessary element of forgery but the holding does not benefit defendant. He was not authorized to sign the name of the Darrell D. Wells, whom he purported to be, when he signed and presented the check in question. This point was clearly established by the testimony of the real Darrell D. Wells. Since defendant purported and held himself out to be the Darrell D. Wells, identified by Well’s chauffeur’s license, when he signed the check in question and presented it to David’s Westway, we hold it to be a falsely made and forged check within the meaning of K. S. A. 21-608 and 609. The evidence is clearly sufficient to establish the necessary elements of forgery and uttering. During the trial, defendant objected to much of the evidence we have recited and claims it was erroneously admitted because it tended to prove intent to cheat and defraud under K. S. A. 21-551 with which defendant was not charged. While intent to defraud is necessary to establish an offense under 21-551, it is not only admissible but necessary to establish forgery under 21-608 and 609. In the recent case of State v. Wright, 194 Kan. 271, 398 P. 2d 339, it was stated: “An essential element of forgery in the second degree under both 21-608 and 21-609, supra, is an intent to defraud. . . .” (p. 275.) See, also, 36 Am. Jur. 2d, Forgery, § 11, p. 686; and 2 Wharton’s Criminal Law And Procedure (12th Ed.), § 621, p. 396. Defendant next complains that he was prejudiced when required to make his motion to dismiss upon conclusion of the state’s evidence in the presence of the jury. The record discloses the following: “Mr. Koerner: We would like to have a motion outside of the presence of the jury, if we may. “The Court: Make your motion out loud. “(The court refused to excuse the jury and required counsel to make motion in the presence of the jury.) “Mr. Koerner: Comes now the defendant and moves to dismiss the charge against the defendant on the basis the State has failed to prove the charge; also, that in our opinion the evidence of the State’s indicates this was an authorized signature to an authorized account, and the most which has been proven is it is an insufficient fund check involved—and that is not forgery. “The Court: The motion to dismiss is overruled.” In his brief defendant candidly admits that the incident, standing alone, does not amount to reversible error, but, he argues, the attitude of the trial judge, as demonstrated by this occurrence, prevailed throughout the trial to the extent defendant’s substantive rights were affected. Since evidence was not argued by counsel or commented upon by the court in the presence of the jury, nor reasons given by the trial court for its ruling, we do not believe the occurrence amounted to prejudicial error requiring a reversal. (State v. Davis, 48 Kan. 1, 28 Pac. 1092.) However, we point out with emphasis that the procedure followed by the trial court in. this regard is not the better practice; such motions should always be presented and ruled upon in the absence of the jury. We have examined other incidents, with respect to the attitude of the trial judge, pointed out by defendant. They involve, for the most part, rulings on evidence adverse to defendant arising from defendant’s erroneous concept of the elements of forgery. We find nothing approaching reversible error in this regard. Defendant’s claim that he was denied a fair trial, because of the trial judge’s attitude, is not supported by the record. Defendant next complains of the trial court’s refusal to submit requested instructions and also contends that instructions given were erroneous. Defendant’s basis for his contentions in this regard are premised on his position that intent to cheat and defraud is not an element of forgery and that a signature, which corresponds with a bank account signature card, amounts to an authorized signature and cannot serve as a basis for forgery. The fallacy of defendant’s position as to these matters has been fully pointed out in the foregoing discussion. It will suffice to say that we have carefully examined the instructions given and find the elements of forgery and uttering adequately set out and the issues for the jury’s determination clearly defined. Lastly, defendant claims the trial court erred in overruling his motion for a new trial. In this specification, defendant merely reasserts the points which have been discussed and disposed of. Counsel for 'defendant has displayed vigor and industry in representing the defendant in the trial of this case and has been diligent in advancing claims of error here. However, our examination of the record compels the conclusion that defendant received a fair trial and that no grounds exist which necessitate a reversal. The judgment is affirmed..

The opinion of the court was delivered by Fromme, J.: This appeal is from a judgment quieting plaintiffs’ title to eighty acres of land in Ellsworth county, Kansas. The defendant claims an interest in the minerals. The case was submitted to the trial court on the pleadings. The parties stipulated a judgment should be entered by the court based upon its construction of a reservation of oil and gas by cotenants in a prior partition action. In the petition plaintiffs allege ownership of fee simple title to the West Half of the Northwest Quarter (W/2NW/4) of Section One (1), Township Seventeen (17) South, Range Ten (10) West, in Ellsworth county, Kansas. (This is the 80 acres in question.) Their claim of title includes both the surface and the oil and gas interests. In the answer defendant, Ervin H. Stratmann, claims to own an undivided one-fifth (Ys) interest in the oil, gas and minerals underlying said real estate for so long as oil and gas, or either of them, are produced from the West Half of the Northwest Quarter (W/2NW/4) of Section One (1) and the Northeast Quarter (NE/4) of Section Two (2), all in Township Seventeen (17) South, Range Ten (10) West, in Ellsworth county, Kansas, or any part thereof. (This is the 240 acres referred to herein.) Defendant alleges this interest in the oil and gas was reserved to him in a partition action between all the present parties in 1961. The pertinent language of the reservation of interest is quoted in the answer and reads as follows: “That oil and/or gas is being produced at this time from the West Half of the Northwest Quarter (W/2NW/4) of Section One (1), and the Northeast Quarter (NE/4) of Section Two (2), in Township Seventeen (17) South, Range Ten (10) West, in Ellsworth County, Kansas and the several part owners as are hereinafter by the court found and determined are each receiving their proportionate share of the oil runs and proceeds therefrom and such mineral interests should not be partitioned and the partition of the last described real estate should be made subject to the mineral rights of the several part owners thereof as hereinafter determined for such a period of time as oil and/or gas or either of them is being produced in paying quantities from said real estate, and upon the termination of production of such oil and/or gas, the rights of all of the several part owners thereof as is hereinafter found and determined, should terminate, so that the title thereto shall at such time merge and vest in the then owner, or owners, of the surface of such real estate.” Defendant further alleges that oil has been continuously produced and marketed from the NE/4 of Section Two and that he is the owner of an undivided one-fifth (Ys) interest in the oil, gas and minerals under the entire 240 acres including the 80 acre tract claimed by plaintiffs. In their reply plaintiffs admit the order reserving an oil and gas interest was entered in the partition action. They admit that oil has been and now is being produced and marketed from the NE/4 of Section Two. For further reply plaintiffs allege that when the land was partitioned it was subject to three separate oil and gas leases, that production from wells located on the eighty acre tract has ceased and that the oil lease thereon has been released. They further allege that all title and interest of the defendant, Ervin H. Stratmann, in the eighty acre tract has terminated because production has ceased on the eighty acres. With the pleadings on file the parties agreed and stipulated that the case should be submitted to the court “on the pleadings for determination of the question of law presented.” On being advised of the stipulation the trial court considered the case, found generally in favor of plaintiffs and quieted plaintiffs’ title to the eighty acre tract against any right or claim of the defendants. The defendant, Ervin H. Stratmann has appealed. In their brief plaintiffs (appellees) quote from a portion of the order of partition not set forth in the pleadings on file in the district court. As previously noted the parties by stipulation submitted their case on the pleadings. When the parties by stipulation submit a case on the pleadings the trial court should consider the case entirely on the allegations contained in the pleadings. (Whitaker v. Douglas, 177 Kan. 154, Syl. ¶ 3, 277 P. 2d 641.) The court is not justified in reaching out and making additional facts a part of the pleadings when ruling upon such a motion. (Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 444, 337 P. 2d 992.) If matters outside the pleadings are presented to the court on a motion for judgment on the pleadings, the motion may be treated as one for summary judgment and disposed of as provided in K. S. A. 60-256. In such case the parties should be given reasonable opportunity to present all material pertinent to the questions involved. (K. S. A. 60-212 (c).) This was not done in the present case. In the court below the parties agreed to submit their case to the court on the pleadings, but they do not now agree on what was considered by the court in reaching its decision. Under the stipulation of the parties and our rules of practice we must arrive at a decision based upon the pertinent facts contained in the pleadings. The quotation from the order of partition set out in appellees’ brief as an additional statement of facts does not appear in the pleadings and will be disregarded by this court. From the pleadings we learn the following pertinent facts. The parties to this action owned fee simple title to 240 contiguous acres of real estate as cotenants. This ownership included both the surface interests and the minerals in place. The parties had executed three separate oil and gas leases covering eighty acres each. Together these three leases covered the entire 240 acre tract. One of these leases covered the eighty acre tract now in question. When the partition action was filed oil was being produced from wells located on the eighty acre tract as well as on other portions of the 240 acres being partitioned. Production has since ceased from wells located on the eighty acre tract now in litigation. The oil and gas lease on this eighty acres has been released. Production has continued from wells located on the balance of the 240 acre tract. The appellant, Ervin H. Stratmann, contends the reservation of interest in the partition action covered the minerals in place under the entire 240 acres for as long as oil is produced from any well located on the 240 acres. The appellees contend and the district court held the reservation of interest covered only royalty rights under the separate prior leases and when production ceased on the eighty acres the reservation terminated on the eighty acre tract. In a partition action the district court is vested with plenary powers to make a just and equitable partition between the parties and to secure their respective interests. (See Home-Stake Production Co. v. Tri-State Pipe Co., 197 Kan. 163, 415 P. 2d 377, and G. S. 1949, 60-2114 now K. S. A. 60-1003 (d).) The general rules governing the construction and interpretation of judgments apply in partition proceedings. A partition of real estate by decree is a judgment of the court. To arrive at a construction and interpretation of such decree the intention of the court rendering the decree should be determined and when determined should be controlling. (68 C. J. S. Partition § 120, pp. 179, 180.) We here seek to determine the intention of the district court when it entered the order reserving the interests in oil and gas in the partition action. In 3A Summers, Oil and Gas, 2nd Ed. § 599, p. 240, it is stated: “During the last half century there has been an undue amount of litigation involving the creation and transfer of oil and gas royalties by deed and reservation. This litigation has concerned such royalties created both before and after lease for oil and gas. Several factors have contributed to this situation. Some of the more important are (1) a lack of understanding of the distinction between an oil and gas royalty and a mineral estate or interest in oil and gas in place; (2) application to royalty conveyances by some courts the common law rule that a grant of the profits or proceeds from land amounts to a grant of the land itself; and (3) the inability of draftsmen to employ terminology expressive of an intent to grant or reserve a royalty interest as distinguished from a mineral estate or interest. . . .” To arrive at a correct decision in this case we must first understand the common meanings of the terms “royalty interest” and “mineral interest.” These terms have been defined by this court and distinguished in many of our decisions. (See Bellport v. Harrison, 123 Kan. 310, 255 Pac. 52; Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463; Rathbun v. Williams, 154 Kan. 601, 604, 121 P. 2d 243; Hickey v. Dirks, 156 Kan. 326, 333, 133 P. 2d 107; Lathrop v. Eyestone, 170 Kan. 419, 227 P. 2d 136; Baker v. Hugoton Production Co., 182 Kan. 210, 320 P. 2d 772, and Magnusson v. Colorado Oil & Gas Corp., 183 Kan. 568, 331 P. 2d 577.) The term “royalty interest” generally refers to a right to share in the production of oil and gas at severance. It is personal property and concerns the proceeds from oil and gas leases if and when there is production. The term “mineral interest” as commonly used refers to the oil and gas in place and constitutes a present ownership of an interest in real property. (Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 368 P. 2d 19.) A prime characteristic of a mineral interest is the right to enter the land to produce and carry on production activities. This right may be leased to others. (Williams and Meyers, Oil and Gas Law, Manual of Terms, p. 232.) The meanings of these two terms are discussed and the terms are distinguished by Professor William R. Scott in his article, The Creation of Oil and Gas Royalty and Mineral Interests. The article appears in Vol. 23 Journal of the Bar Association of Kansas at page 234. We recommend this article to those who are not familiar with the terms. The appellant relies on Baker v. Hugoton Production Co., supra; Magnusson v. Colorado Oil & Gas Corp., supra; and Shepard, Executrix v. John Hancock Mutual Life Ins. Co., supra. These cases involved the construction of written instruments which conveyed or reserved a fractional interest in oil under real estate. The instruments were construed by this court as conveying or reserving an interest in the minerals in place, an estate in real property. Since the interests covered minerals in place production from any portion of the described real estate was sufficient to perpetuate the mineral interest in the entire acreage. The appellees, on the other hand, rely on Stamper v. Jones, 188 Kan. 626, 364 P. 2d 972, and Dewell v. Federal Land Bank, 191 Kan. 258, 380 P. 2d 379. They also rely on passages taken from the Baker and Shepard cases. In Stamper an action was filed to cancel oil and gas leases as to the undeveloped portions based upon breach of the implied covenant to develop. The interests referred to in that action were created by oil and gas leases. The opinion concerned itself with royalties resulting from leases. In Dewell a term mineral interest under a half section of land was reserved in a deed. The reservation ran for a primary term of twenty years and as long thereafter as oil was produced from the premises. The interest was leased and the lease on this half section was unitized with leases on other land. Production was obtained on the other land. There were no producing wells drilled on the half section of land. The court held that production on the other land did not perpetuate the mineral interest on the half section beyond the primary term. To perpetuate the interest production had to come from the half section. A mineral interest normally includes a royalty interest in the sense that a mineral owner who has joined in a lease becomes a royalty owner. (See Hinkle v. Gauntt, 201 Okl. 432, 206 P. 2d 1001.) By virtue of the ownership of the minerals in place and the rights created by the lease the mineral owner holds an interest in the lease royalties. The royalties in such case are dependent upon the terms of the lease which is carved out of the mineral interest. Such a royalty interest may be made dependent upon continued production from the lease and in such case will expire or terminate if production under the lease ceases. (Stamper v. Jones, supra.) A mineral interest may also be reserved for a period so long as production from the land continues. We have designated such an interest a base or determinable fee. (Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899.) It may be dependent upon continued production but the event which determines the interest must be found in the instrument creating it. The interest is not created by nor is it dependent upon a particular oil lease. If the mineral interest is in a 240 acre tract continued production will perpetuate the interest regardless of whether one or more leases cover the minerals. The only condition necessary to perpetuate such an interest is that there be production. One producing well on the premises is sufficient to perpetuate the interest. (Shepard, Executrix v. John Hancock Mutual Life Ins. Co., supra.) We now concern ourselves with the language used by the district court in partitioning the 240 acres and reserving to the cotenants the interests in the oil and gas. The legal description of the land affected by the decree includes 240 contiguous acres of real estate. The court first stated that oil was being produced from the 240 acres and that the cotenants were receiving their proportionate share of the oil proceeds. Then the court found and determined, “such mineral interests should not be partitioned and the partition of the last described real estate should be made subject to the mineral rights of the several part owners”. Up to this point the defendant as a cotenant owned a fractional interest in both the surface interests and the minerals in place. The interest reserved is referred to as a “mineral interest”. The partition of land was “made subject to the mineral rights of the several part owners”. The mineral rights owned were underlying the 240 acres described. The interest to be reserved was carved out of the entire 240 acres owned by these parties as cotenants. When the term of the reservation was set by the court the interest was “determined for such a period of time as oil and/or gas or either of them is being produced in paying quantities from said real estate”. Again “said real estate” refers to the 240 acres for no other real estate description appears in this portion of the decree. If the reservation was intended to cover less than the entire interest in minerals owned by defendant some further refinement was necessary to limit the same. Specific oil and gas leases were not mentioned. Royalties accruing from the leases were not mentioned. The language employed by the court in the last portion of this reservation indicates a single termination date at which time the rights of the several part owners would end. The court provided “upon termination of production” the rights reserved should terminate “so that the title thereto shall at such time merge and vest” in the surface owners. “At such time” refers to a single termination date. The terminology used is generally applied to interests in real property. If the interest reserved was only a royalty interest under a lease there would be no merging or vesting of the interest on termination. Although the land was subject to three oil and gas leases, each covering eighty acres, no attempt was made by the district court to identify the leases and the royalties from these leases were not reserved except as they followed the ownership of the mineral interests reserved. The reservation was not dependent upon continued production from specific leases. Instead the interest was made dependent upon production from the 240 acres from which the mineral interest was reserved. It is generally held that where land held in common is divided by a decree in partition in which it is provided the mineral rights in the whole of the land shall remain undivided, the reservation reserves to the common owners the minerals in place under the land divided. (68 C. J. S., Partition § 120 (b), p. 181.) The interest reserved to each common owner in the present case was a determinable fee in the minerals in place under the entire 240 acres of land described. The interests were limited and determinable at such time as production of oil and gas or either of them in paying quantities ceased from the 240 acres described. Since production continues from wells located on a portion of the 240 acres the defendant continues to own an undivided one-fifth interest in the oil and gas underlying the entire 240 acres, including the 80 acres which are the subject matter of this action. Said interest shall continue so long as oil and gas or either of them is produced in paying quantities from the 240 acres described or any part thereof. The judgment is reversed and the case is remanded to the district court with instructions to enter judgment in favor of the parties in accordance with the views expressed in this opinion.

The opinion of the court was delivered by Fontron, J.: In this action Mr. and Mrs. Welch, the plaintiffs and appellants herein, have sued the city of Kansas City, Kansas, to recover damages occasioned to their property from flooding. The trial court sustained the city’s motion for summary judgment and the plaintiffs have appealed. On the 12th day of June, 1966, a severe rainstorm occurred in Kansas City which flooded the Welch property, water entering the basement of plaintiffs’ home and damaging both the residence and certain personal property. The plaintiffs allege the flooding was due to inadequate storm sewers and drainage facilities under adjoining streets. A written statement of the plaintiffs’ claim against the city was filed on July 29, 1966, as required by K. S. A. 12-105, and no issue is raised as to its sufficiency. The present lawsuit was commenced July 2, 1968, more than two years after the damage is alleged to have occurred but within two years from the date on which plaintiffs filed their written statement with the city clerk. The city’s motion for summary judgment was bottomed on the premise that plaintiffs’ action was barred by the statute of limitations, and such was the basis on which the motion was sustained. Thus the sole issue before us in this appeal is whether the plaintiffs commenced this lawsuit within the time permitted by statute. In support of the plaintiffs’ contention that their action was timely filed, two arguments are advanced: First, that the cause of action is one based upon a liability created by statute, and thus the three-year limitation set out in 60-512 (2) is applicable, and second, that the cause of action accrued July 29, 1966, when the written statement required by K. S. A. 12-105 was filed. In a sense these points are intertwined and plaintiffs’ positions, interdependent. We believe however that neither position is tenable. So far as material to this lawsuit, K. S. A. 60-512 reads as follows: “The following actions shall be brought within three (3) years: . . . (2) An action upon a liability created by a statute other than a penalty or forfeiture.” In their printed brief, the plaintiffs seem to imply that a city’s liability in a case of this character is created by that portion of K. S. A. 1969 Supp. 12-101 which provides: “. . . Each city being a body corporate and politic, may among other powers— “First. Sue and be sued.” However, we were informed upon oral argument that plaintiffs are no longer relying on this provision to establish their cause of action as statutory in nature. Such being conceded, we need pursue this facet of plaintiffs’ contention no further than to express agreement with their present view of the statute, and to say that in our opinion 12-101 relates to corporate powers of a municipality rather than to the creation of liabilities against it. The areas and limits of municipal liability are largely defined by case law, not by statute. Rut the plaintiffs seriously maintain that K. S. A. 12-105 gives rise to a cause of action against a municipality, and that a statutory liability thus exists against Kansas City in this case. We are obliged to disagree. This statute, which will be set out more fully later on, makes no pretense of creating a liability; it simply establishes a procedure with which a litigant must comply before maintaining an action against a city, regardless of what may be the basis of the asserted liability. In the recent case of Grantham v. City of Topeka, 196 Kan. 393, 411 P. 2d 634, we discussed various bases upon which municipal liability may be predicated. Commencing on page 397, Mr. Justice Fatzer, speaking for the court, said this: “It is a general rule of law in tbis state that a municipality is not liable for negligent acts of its officers or employees in the performance of a governmental function unless such liability is expressly imposed by law. (Wray v. City of Independence, 150 Kan. 258, 92 P. 2d 84; Rhodes v. City of Kansas City, 167 Kan. 719, 208 P. 2d 275; Stolp v. City of Arkansas City, 180 Kan. 197, 303 P. 2d 123; Rose v. Board of Education, 184 Kan. 486, 337 P. 2d 652; Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347.) The rule is based on the doctrine that the state is not liable except as made so by statute and that municipalities, when acting in a governmental capacity, are arms of the state. (Perry v. City of Wichita, 174 Kan. 264, 255 P. 2d 667; Weast v. Budd, 186 Kan. 249, 253, 349 P. 2d 912.) However, exceptions have been engrafted into this general rule by decisions of this court to the effect that a municipality is liable (1) where its conduct results in creating or maintaining a nuisance (Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798; Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474; Adams v. City of Arkansas City, 188 Kan. 391, 362 P. 2d 829), and (2) for its negligent and wrongful acts (a) when performing in a proprietary capacity (Dunn v. City of Emporia, 181 Kan. 334, 311 P. 2d 296), and (b) for failure to keep its streets reasonably safe for public use. . . .” (Emphasis supplied.) It appears to be the universal rule that municipal corporations are liable for damages occasioned to private property from the overflow of surface waters cast upon it through the action and fault of the municipality, its officers and agents. (38 Am. Jur., Municipal Corporations, § 645.) For many years Kansas has consistently followed this rule. Among our early cases, see Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; and King v. City of Kansas City, 58 Kan. 334, 49 Pac. 88.) In a much more recent case, Reeder v. Board of County Commissioners, 193 Kan. 182, 392 P. 2d 888, we held that an action of mandamus will lie against the Board of County Commissioners to restore a water course and to prevent the Board from effecting changes therein to the damage of plaintiff’s lands. Recovery of damage in cases of this character has usually been said to sound in the nature of nuisance or, occasionally, as was said in King, supra, in the invasion of individual rights in the nature of trespass. Never, to our knowledge, has the cause of action been said to originate in the filing of the written statement required by K. S. A. 12-105. In every case where the limitation upon actions of this character has been involved, the two-year statute, K. S. A. 60-513, has been applied. In Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631, it was held: “Where a permanent improvement is made by a city on the bank of a water course in such a way as to narrow the channel and wash and injure private property on the opposite bank, the city is hable for the injury; but an action therefor can only be brought within two years after the erection of such improvement.” (Syl. ¶ 4.) The holding in Beard v. Kansas City, 96 Kan. 102, 150 Pac. 540, is to like effect: “Where a city improves a street and causes water from heavy rainfall to overflow adajacent premises the owner of the premises may maintain an action for damages caused by the overflow, but such an action must be brought within two years after such overflow or it will be barred by subdivision 3 of section 17 of the code of civil procedure.” (Syl. ¶ 3.) In McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, cited in plaintiffs’ brief, recovery was sought for permanent damage to a creek into which the city discharged sewage waters. This court held that since the sewer system was a permanent structure causing continuous injury, the cause of action accrued when the impurities were first deposited in the stream, and the action not being brought within two years therefrom, suit was barred. The appellants argue that “the instant case involves primarily a continuing nuisance and one wherein the cause of action is reestablished with each new injury.” They overlook, however, the allegations of their own petition seeking recovery only for those damages which resulted from the overflow of June 12, 1966. No other or subsequent injuries are asserted. Neither do we find any relevancy in the plaintiffs’ allusion to that portion of K. S. A. 60-513, providing in essence that the period of limitation shall not commence to run until the fact of injury becomes known. There is no allegation in the instant petition that the fact of injury was concealed, or incapable of ascertainment. Indeed, the very opposite impression is to be gleaned from the plaintiffs’ pleading. Plaintiffs have cited authority to the effect that an action for damages occasioned by a defective bridge or highway is based on a liability created by statute. (Shaw v. Lyon County Comm’rs., 126 Kan. 319, 267 Pac. 1096; Wagner v. Edwards County, 103 Kan. 719, 176 Pac. 140; Bohrer v. State Highway Comm., 137 Kan. 925, 22 P. 2d 470.) These cases do not support the position taken by plaintiffs in this case. Liability for injuries resulting from defective roads and bridges is specifically imposed on counties and townships, as well as upon the state, by explicit statutory enactment. (K. S. A. 68-301.) No such statute is involved here. We have heretofore referred to K. S. A. 12-105, which so far as material to the facts of this case, reads as follows: “No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three (3) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto . . .” It is argued that even though the provisions of 12-105 may fall short of creating a statutory liability against municipalities, nevertheless, no cause of action can be said to accrue until the written statement required by the statute has been filed with the city clerk. Although at first glance this argument might appear plausible, on closer inspection its rationale will be found fallacious. This court, it is true, has said on more than one occasion that the statute establishes a condition precedent for instituting legal action against a city for the recovery of damages. (Workman v. City of Emporia, 200 Kan. 112, 434 P. 2d 846, and cases cited therein.) This is not to say, however, that a cause of action will not accrue until written notice has been filed with the city. The issue was squarely raised, and plaintiffs’ argument clearly refuted, in Fuller v. State Highway Comm., 140 Kan. 558, 38 P. 2d 99, 95 A. L. R. 1186. In that case the plaintiff sought to recover damages sustained by reason of a road defect, under a statute imposing liability on the state for damages resulting from defective state highways. The statute further provided that written notice be given within ninety days and that suit be commenced within two years. In the Fuller case, as in the case at bar, suit was filed more than two years after the injuries were sustained, but within two years from the date on which notice was given. There, as here, plaintiff claimed that the cause of action accrued when the written notice was given. This court rejected Mrs. Fuller’s contention, and held that the giving of the statutory notice was but a preliminary step in bringing the action. The nub of its decision is found on page 561: “The test is whether the serving of the notice is a part of the cause of action or merely a step in the remedy. We have concluded tihat it was a procedural step in the remedy and that the cause of action accrued when the damages were sustained. Hence the statute started to run then and the demurrer [an archaic term] should have been sustained.” In formulating the rule which it declared in Fuller, the court followed the prevailing rule which we find stated in 34 Am. Jur., Limitation of Actions, § 117, p. 97: “While frequently notice by one party to another is a condition precedent to a right to bring an action, the service of such notice is not a part of the cause of action, but merely a preliminary step in the bringing of the action on an accrued cause of action, and does not constitute the starting point of the statute of limitations; the failure to serve the notice does not operate to suspend the statute. Thus, the statute of limitations begins to run against a claim for injury to the person from the date of the injury, and not from the time of the service of a notice required by a statute providing that actions against certain persons for the recovery of damages for personal injuries, or actions for the recovery of injuries caused by certain agencies, cannot be maintained unless, within a specified time, written notice is served, stating the date, place, character of the damage, and the name and address of the person sustaining the damage.” This principle was tacitly recognized by this court in the recent case of James v. City of Wichita, 202 Kan. 222, 447 P. 2d 817. There, we held that a petition which omitted an allegation of compliance with K. S. A. 12-105 could be amended to include such an allegation and that the amendment would relate back to toll the statute, inasmuch as the claim asserted in the amended pleading arose out of the same conduct or occurrence set out in the original pleading. Finally, the plaintiffs insist that the ends of justice would be served by granting them their day in court, despite the fact their action was commenced out of time. The same suggestion, we presume, could be advanced by every litigant who by inattention, inadvertence or otherwise, had let the time slip by for bringing his lawsuit. It has been said that statutes of limitation are statutes of repose, precluding presentation of stale claims and encouraging diligence on the part of those whose rights have been infringed. In furthering these objectives, such statutes serve a worthy and useful purpose, and we are not at liberty to ignore them completely. Before concluding this opinion we deem it advisable to note that the record in this case has been prepared on pages which exceed, in length, those required by Rules of the Supreme Court, No. 9. (201 Kan. xxn.) The attention of members of the bar is directed to the requirements of that rule in order that future violations may be avoided. We find the trial court was correct in sustaining the city’s motion for summary judgment, and its action in such respect is affirmed.

The opinion of the court was delivered by Harman, C.: This original quo warranto action on the relation of the attorney general tests the validity of the provisions of Chapter 431, Laws of 1969, which provides a method whereby motor vehicles acquired after January 1 but before November 1 are to be listed and assessed for ad valorem taxation. Defendant is the officer charged with general supervision over the administration of the assessment and tax laws of the state (K. S. A. 79-1404). Issues were joined, the case was briefed and orally argued and on September 23, 1969, judgment was entered for defendant, that decision being announced in a brief opinion found at State, ex rel., v. Dwyer, 204 Kan. 1, 458 P. 2d 735. The purpose of this opinion is to state reasons for the decision reached. Generally, the challenged portion of the act provides that any motor vehicle acquired after January 1 and prior to November 1 of any year is to be valued by the county assessor at the time of the vehicle’s registration pursuant to schedules furnished by the director of property valuation and is to be placed on the tax rolls for the current year. Such valuation is to be prorated according to the number of months the vehicle is owned during the year. In case of a trade during the year the valuation and ensuing tax are to be apportioned between the vehicle previously owned by the taxpayer and that acquired as a replacement according to the number of months each was owned during the year. In making this valuation the county assessor is authorized to deviate from the valuation schedules by using a lower amount for a damaged vehicle. Plaintiff has challenged the law upon several constitutional grounds. Our consideration and ultimate determination of validity is limited to those grounds. Plaintiff first contends the law will deprive certain taxpayers of equal protection of the law and of their property without due process of law in violation of the federal constitution. His argument derives from our legislative pattern of appeals from action of assessing officials and briefly is this: Once property is listed and assessed, a taxpayer who feels aggrieved by the valuation of the assessor may complain to the board of county commissioners sitting as the county board of equalization which board is empowered to make such changes as it deems necessary in order to secure a proper assessment of all property. This board may now meet at any time after January 15 and is required to meet on the first business day in May for the purppse of such tax review. It generally remains in session during the month of May and for limited purposes meets in June but must finally adjourn for the year on June 15 and may not thereafter change an assessment (Chapter 437, Laws of 1969). Further appeal from this board’s action may be made to the state board of equalization (K. S. A. 79-1409). Plaintiff then points out that the taxpayer who purchases a vehicle after June 15 may be dissatisfied with the assessment placed upon it but he may not present his grievance to the county board of equalization as can the purchaser of a vehicle earlier in the year and plaintiff argues the taxpayer is thus deprived of due process and equal protection of the law. We cannot sustain this argument. In Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P. 2d 836, a statute placing a tax upon motor carriers was at tacked as violative of the fourteenth amendment to the federal constitution. In rejecting the contention this court stated: ‘It is only necessary that at some stage of the assessment proceedings the taxpayer shall have an opportunity, after notice, to appear and contest the assessment.” (p. 296.) K. S. A. 79-1413a provides in pertinent part: “Whenever, upon complaint made to the state board of tax appeals . . . by any property taxpayer, and a summary proceeding in that behalf had, it shall be made to appear to the satisfaction of said state board that the assessment of taxable . . . tangible personal property in any county is not in substantial compliance with law . . . said board of tax appeals shall order a reappraisal of all or any part of the taxable property. . . .” Also, K. S. A. 79-2005 permits a taxpayer, who feels aggrieved, to pay his taxes under protest and thereafter either to commence a judicial proceeding to recover the protested payment or file an application with the state board of tax appeals for a hearing on the validity of his protest. This latter board is the same group which constitutes the state board of equalization (K. S. A. 79-1409). These avenues of relief remain open to the aggrieved taxpayer after June 15. Their availability satisfies constitutional requirements. Although their relative simplicity and expensiveness in a given case might be debatable when compared to the further remedy open prior to June 15, this fact would not constitute a denial of equal protection of the law beyond constitutional limits. Article 11, section 1, of our state constitution provides that, with certain exceptions not here material, the legislature shall provide for a uniform and equal rate of assessment and taxation. Plaintiff’s principal contention is that this clause is violated in that some vehicles purchased after January 1 of any year are taxed for that year while no other property so purchased is taxed. Our general statute on listing personal property subject to taxation provides that it shall be listed in the name of the owner as of January 1 (K. S. A. 1968 Supp. 79-301). It must be conceded the bulk of taxable personal property would be assessable under this provision, but not all, as we shall see. Plaintiff relies primarily for his position on our early holding in Graham v. Comm’rs of Chautauqua Co., 31 Kan. 473, 2 Pac. 549. There a taxpayer brought cattle from Indian Territory into Kansas in March and April of 1881 and kept them within this state until somé time in October of that year. The general taxing date at that time was March 1. The cattle were assessed by reason of a statute which provided that when any livestock shall be driven into any county of this state from beyond the boundaries of the state for the purpose of grazing therein at any time prior to the first day of December, such stock shall be liable to be assessed for all taxes levy-able in thát county for that year, the same as if the owner thereof resided and held the stock in such county on the first day of March of that year (Chap. 34, § 1, Laws of 1881). This court held the particular proviso unconstitutional, saying: “All personal property in the state on the first of March is, with the constitutional exemptions, listed for taxation. This therefore enforces the constitutional rule of uniformity. There is no general provision for taxing property brought into the state after the first of March, but by this statute an attempt is made to tax certain kinds of property when brought into the state for certain purposes. But if this is done, the rate of assessment and taxation is not uniform and equal. It was said in the case of Hines v. City of Leavenworth, 3 Kas. 200, that ‘the whole property of the state must be listed and valued for taxation/ If this be true, must not all the property brought into the state after the first of March be listed for taxation in order to support the listing of part? Certainly a statute cannot be sustained which attempts to cast the entire burden of taxation on one class of personal property, leaving all others exempt. If this be true in respect to the entire year, must it not be equally true in respect to a portion? “We think this argument is sound, and that if in addition to ihe listing of all property present in the state on the first of March, an attempt is made to list property brought in after the first of March, it must apply to all property so brought in. No distinction can be made as to property after the first of March, any more than it can as to property on that day.” (pp. 477-478.) This ruling has since been cited approvingly by this court and the broad language quoted supports plaintiff’s position. However, it should be noted the statute in the Graham case made no provision for pro rata assessment based upon length of time the property was in the state but called for a full year’s assessment to be made against it. This fact alone makes the case distinguishable from the case at bar. Since the time of the Graham case other statutes have been enacted which have the effect of taxing property not in the state at the time of the general listing date. Among these are K. S. A. 79-316 providing for the listing and assessment, under certain conditions, of personal property brought into the state after January 1 and prior to July 1; K. S. A. 79-316b and 79-316c providing for pro rata assessment of cattle which are in Kansas only a part of the year; K. S. A. 79-1001 and 79-1002 calling for assessment of merchants’ property upon an average monthly inventory basis; K. S. A. 79-1003 providing for assessment of the property of merchants commencing business after January 1 and before November 1; and K. S. A. 79-1434 providing for assessment of property of transient merchants entering the state after January 1. These statutes are cited merely as instances in which the legislature has sought to tax property acquired or brought into the state after January 1. We are aware their constitutionality has not been judicially challenged and, of course, cannot be determined here. The constitutionality of a 1937 act imposing a tax upon leased railroad freight cars operating within the state (now K. S. A. 79-907) was raised in Associated Rly. Equipment Owners v. Wilson, 167 Kan. 608, 208 P. 2d 604. The tax was to be measured by a percentage of gross earnings of the cars. Obviously, few of these cars were in the state on the regular listing date and, as pointed out in the opinion, the property was of such a nature that it was not amenable to the ordinary taxing processes and, absent a particular method as embodied in the act taxing it, could not be taxed at all. This court held the act did not violate article 11, section 1 of the constitution. So it is not correct to say that no other property acquired after January 1 is subject to taxation. Our legislature’s recent concern with our system of taxation was reflected by its creation in 1968 of a Joint Committee on State Tax Structure. This committee was charged with the duty of studying and providing recommendations to the legislature on various taxes imposed by the state and their relationship to each other and to the economy and public interest (Chap. 62, Laws of 1968). This committee held numerous hearings and in January, 1969, made its interim report to the legislature (Senate Journal, 1969 Regular Session, [January 30, 1969] p. 104). This report expressed concern over the fact much personal property has no recorded title so that administrative discovery of taxable items remains a problem and, further, that the consequence of escape from taxation of personal property is discrimination and over taxation of owners of real property. Special attention was paid to the subject of motor vehicles. The committee heard evidence of the possibility and practice of evasion of taxes thereon by means of transfer of title prior to January 1 either with transfer back or purchase of another vehicle after January 1. Conceivably one vehicle or a fleet of them could be brought into the state after January 1 by purchase or under rental or lease arrangement so as to be exempt from personal property taxes for that year, although used in the state most of the year. The committee recommended passage of the legislation we deal with here, commenting that an existing “loophole” would be closed. Thus we see our legislature concluded that a serious tax evasion problem has existed in the past. The dominant principle of our constitutional mandate is that property shall be assessed for taxation under uniform rules so that equality in the burden of taxation results. Yet practical problems in the administration of a taxing system always remain; absolute or perfect equality in taxation, being impossible of attainment, is not required. As long as there is substantial uniformity in the application of tax statutes, constitutional provisions relating to equality and uniformity are not violated (see 84 C. J. S., Taxation 22a & b; 1 Cooley, Taxation, § 259). One element to be considered in determining subjection of various kinds of personal property to tax liability is the expense attendant to the listing and assessment procedure. Long ago, this factor was recognized in Francis, Treas., v. A. T. & S. F. Rld. Co., 19 Kan. 303, when this court rejected a contention of lack of equality and uniformity in taxation in violation of article 11, section 1, in a situation where expense of the machinery for collection of certain taxes might well have exceeded the amount of taxes collected. Some kind of inquisitorial process is generally required in the discovery of personal property to be listed for taxation. That this could be profitably carried on by the state beyond a certain listing date as to all kinds of personal property might well be doubted. Certainly the state is not obliged to tax property when the cost of discovery and assessment would be greater than the amount received. Our registration laws do provide a ready method for ascertainment of ownership of motor vehicles. In considering the effect of Chapter 431, this question arises: If it was constitutional that, prior to its enactment, some property within the state during the year was taxable while other property within the state remained untaxed, how is it any less constitutional, after enactment of Chapter 431, that a lesser amount of property remains untaxed during the year? If anything, it would appear the latter situation results in greater uniformity and equality in the taxing structure. We think the legislature had tax reform in mind in enacting the legislation questioned here. Plaintiff also urges the act lacks the requisite uniformity and equality because vehicles purchased after November 1 would not be subject to taxation, while those purchased before that date are. That which has been heretofore said respecting the practical problems of taxation sufficiently answers this contention. A final cutoff date in our taxing system so as to give certainty and stability to the public revenues in a given year is an obvious necessity, which fact this court has recognized (Benn v. Slaymaker, 93 Kan. 64, 143 Pac. 503). We cannot say the act results in invidious discrimination so as to destroy the requisite uniformity and equality in our taxing system, and its validity must be upheld. Judgment is entered for defendant. APPROVED BY THE COURT.

The opinion of the court was delivered by Kaul, J.: This appeal is from an order denying relief under K. S. A. 60-1507. Petitioner-appellant, Larry Joe Collins, was charged in the district court of Sedgwick County in three counts; attempted burglary in the second degree, possession of a pistol after a previous conviction of a felony, and possession of burglary tools. On May 20, 1965, petitioner, with his retained counsel, Mr. Larry Kirby, appeared before the district court. The following proceedings were had: “The Court: All right. This is case CR 1824-65. Will the defendant waive arraignment? “Mr. Kirby: Yes, Your Honor. The defendant waives arraignment and waives a jury trial. “The Court: All right. Mr. Collins, although you have waived formal reading of the Information, the Court would inform you in count 1 of this Information filed by the State you are charged with the offense of attempted burglary in the 2nd degree in violation of Section 21-101 and 21-520 of the General Statutes of Kansas. In Count 2 you are charged with the offense of possession of a firearm after having been convicted of the offense of a felony in violation of 21-2611 of the General Statutes of Kansas. “In count 3 you are charged with the offense of possession of burglary tools; an offense commonly known as possession of burglary tools; in violation of Section 21-2437 of the General Statutes of Kansas. “Have you discussed all of these counts with Mr. Kirby? “The Defendant: Yes. “The Court: Do you fully understand what you are charged with? In each of them? “The Defendant: Yes. “The Court: Do you have any question in this case as to the nature of any of the charges pending against you? “The Defendant: No, Sir. “The Court: Mr. Kirby has informed me that you wish to enter a plea of guilty to each of these three counts. You have also discussed your plea in this case with Mr. Kirby? “The Dependant: Yes, I have. “The Court: You understand fully what you are doing by pleading guilty? “The Defendant: Yes. “The Court: Is that what you, yourself, wish to do? “The Defendant: Yes. “The Court: The court will ask you: In each of these counts do you plead guilty because you are guilty? “The Defendant: Yes. “The Court: Do you have any legal reason why sentence should not be pronounced at this time? “The Defendant: No, Sir.” The district court then accepted petitioner’s plea and imposed the statutory sentence on each count. The sentences were ordered to run concurrently, which amounted to a minimum term under the circumstances. Petitioner was sent by the district court to the Reception and Diagnostic Center for an evaluation and report. Thereafter, petitioner was confined in the state penitentiary until placed on parole by the State Board of Probation and Parole. Later, petitioner’s parole was revoked and he was again confined in the penitentiary. We are informed petitioner’s parole was revoked because of convictions of burglary and larceny affirmed by this court in’ State v. Collins, (No. 45,321), 204 Kan. 55, 460 P. 2d 573. On March 1, 1968, petitioner made a belated attack on the sentence by filing a motion under K. S. A. 60-1507, thereby initiating these proceedings. As grounds for his claim of unlawful detention, petitioner alleges in Paragraph No. 10 of his motion: “(a) I entered a plea on the grounds I would make an early parole and that all alleged charges pending against me would be treated as (one). Although some of the alleged charges could have been defeated in a short trial. “(c) The parole acquired forced me to live in Sedgwick County, Ks., and was harassment in my latest convictions.” In Paragraph No. 11 of his motion form, which calls for a statement of facts supporting the grounds alleged in No. 10 and names of witnesses or other evidence relied upon to prove such facts, petitioner merely reasserts that his plea was induced by promises of parole. Petitioner fails to name any witnesses. On April 8, 1968, the trial court considered petitioner’s motion and examined the files and records in his criminal case. The trial court found that the' records show petitioner plead guilty because he was guilty and for no other reason, and further “that he makes no allegation that any promises were made to him by any person other than his own attorney, which promise was that if he did not appeal he would make parole, which promise was fulfilled.” The trial court further found the limitations and requirements set by the State Board of Probation and Parole were not a proper subject for inquiry by the court. The limited scope of judicial review of proceedings before the State Board of Probation and Parole is pointed out and discussed in Johnson v. Stucker, 203 Kan. 253, 453 P. 2d 35, cert. den. Vol. 38 United States Law Week, p. 3173 (Misc. 463), _ U. S __, 24 L. Ed. 2d 180, 90 S. Ct. 218. Finally, the trial court concluded the motion, of petitioner was wholly without merit and should be denied. The trial court’s journal entry of judgment was filed on April 8, 1968. Thereafter, petitioner filed a motion for a rehearing, generally reasserting contentions made in his original motion. Apparently as an afterthought, petitioner stated: “The Court’s Order states no witnesses were requested, therefore, petitioner submits and prays the Court issue an Order of Subpoena upon the following party: “Attorney Larry D. Kirby “331 South Hydraulic “Wichita, Kansas 67202” The trial court considered petitioner’s motion for rehearing and ruled it presented no justiciable issue and provided no reason for changing the decision previously entered. The record here affirmatively shows the plea to have been volun tarily entered and with full knowledge of the probable consequences. The only suggestion of coercion is petitioners statement “I entered a plea on the grounds I would make an early parole and that all alleged charges pending against me would be treated as (one).” The record shows petitioner received just that: concurrent sentences on the three charges and, as he admits in Paragraph No. 9(a) of his motion, he made a parole. The transcript of the proceedings and allocution in connection with petitioners plea of guilty, considered together with petitioner’s own statements in his motion, clearly indicate the trial court was justified in not granting an evidentiary hearing and denying relief. Petitioner did not appeal from the trial court’s ruling on his original motion but, as we have previously noted, he filed a motion for a rehearing. In his motion for a rehearing petitioner recites a lengthy argument, for the most part incomprehensible, and concludes by reasserting the contention that his plea was induced by his attorney’s promise of a parole. The point was raised in petitioner’s original motion and determined adversely to his contention. No appeal was taken from that judgment and it became final. Petitioner’s motion for a rehearing, reasserting the same point, actually amounted to a successive motion. (See K. S. A. 60-1507 [c]; State v. Foulk, 195 Kan. 349, 404 P. 2d 961; McCall v. State, 196 Kan. 411, 411 P. 2d 647, and Lee v. State, 197 Kan. 371, 416 P. 2d 285.) The appeal is wholly without merit and the judgment is affirmed.

The opinion of the court was delivered by O’Connor, J.: On February 26,1968, the petitioner, John Edward Baker, filed a motion under K. S. A. 60-1507 attacking the judgment and sentence of the district court of Johnson county for the crime of grand larceny. The motion was denied, and Baker has appealed. Baker was originally convicted by a jury of burglary in the second degree and grand larceny. On direct appeal to this court the burglary conviction was held to be void on the basis the information was jurisdictionally defective; the grand larceny conviction was affirmed (State v. Baker, 197 Kan. 660, 421 P. 2d 16). Petitioner in his present motion asserts seven grounds: (1) lack of speedy trial; (2) the information charging grand larceny was fatally defective; (3) incompetent evidence of prior felony convictions was used to impose sentence under the habitual criminal act; (4) prejudicial and improper comments in the closing argument of the county attorney; (5) the erroneous admission of evidence resulting from an illegal search and seizure; (6) trial counsel was incompetent and inadequate; and (7) a coerced confession was improperly used against petitioner. Mr. Donald Culp was appointed counsel and, with petitioner present, a full evidentiary hearing was held on the 1507 motion. On October 17, 1968, the trial court made extensive findings of fact and conclusions of law, and held that petitioner had failed to sustain the burden of proof on any of the issues. Except for the contention of lack of speedy trial, which has been abandoned, basically the same points are urged on appeal as were presented to the trial court. Two of the points were adjudicated in Baker’s direct appeal. There, we held the information was sufficient to charge the offense of grand larceny. We also1 determined that evidence of two prior felony convictions, the record of each disclosing on its face that defendant was represented by counsel, were sufficient to authorize imposition of the present sentence as a third conviction under the habitual criminal act. A 60-1507 proceeding ordinarily cannot be used as a substitute for a second appeal. (Rule No. 121 [c] [3], Rules of the Supreme Court, 201 Kan. xxxiii; Basker v. State, 202 Kan. 177, 446 P. 2d 780; King v. State, 200 Kan. 461, 436 P. 2d 855; Jolly v. State, 200 Kan. 202, 434 P. 2d 547.) Moreover, there is nothing in the additional arguments advanced with respect to these points that would cause us to deviate from what was said in the direct appeal. We find nothing in the complaint now made regarding the assistant county attorney’s closing argument which could be said to constitute a trial error of constitutional magnitude. Under Rule No. 121 (c) (3), mere trial errors not affecting constitutional rights are to be corrected on direct appeal. The point was not properly raised before and will not now be considered in this collateral proceeding. The three remaining contentions pertain to matters involving constitutional rights. Two of these—the admission of illegally seized evidence, and a coerced confession—are alleged trial errors which were specified as error but not passed on in the direct appeal for the reason that under our then existing rule of appellate procedure, trial errors not included in the grounds of a motion for new trial, and thus not presented to the trial court, could not be reviewed. Since our decision in the direct appeal, the rule in respect to appellate procedure in criminal actions has been changed by the adoption of Rule No. 17, which reads as follows: “Motions fob. New Trial in Criminal Proceedings. In an appeal from the judgment of the district court in a criminal proceeding, adverse decisions or intermediate orders made in the progress of the case, including trial rulings, may he specified for review regardless of whether a motion for a new trial shall have been filed; and it shall not be necessary to specify the overruling of a motion for a new trial in order to obtain the review of any errors in such decisions, intermediate orders, or trial rulings. . . . “Adopted by the Court June 27, 1968.” (201 Kan. xxvii. ) Had Rule No. 17 been in effect when Baker’s appeal was here previously, the alleged trial errors would have been reviewable. Rule No. 121 (c) (3) provides that trial errors are to be corrected by direct appeal, but if they affect constitutional rights, they may be raised in a 60-1507 proceeding, even though the errors could have been raised on direct appeal, provided there were exceptional circumstances excusing the failure to appeal. The immediate question posed is whether there are exceptional circumstances excusing the failure of petitioner to properly present the alleged trial errors in his direct appeal. This case is closely analogous to the situation presented in Holt v. State, 202 Kan. 759, 451 P. 2d 221. There, in a post-conviction proceeding under K. S. A. 60-1507, the petitioner sought review of a trial error involving the admissibility of his confession which had been denied him on direct appeal because he had failed to appeal from the order of the district court overruling his motion for new trial. (See, State v. Holt, 197 Kan. 468, 419 P. 2d 834.) The import of our decision on the direct appeal was abrogated by the subsequent promulgation of Rule No. 17. We held that such conditions constituted exceptional circumstances as contemplated by Rule No. 121 (c) (3), and the trial error which affected petitioner’s constitutional rights was reviewable in the 60-1507 proceeding. The “exceptional circumstances” requirement of Rule No. 121 (c) (3) received our careful attention in the recent case of Barnes v. State, 204 Kan. 344, 461 P. 2d 782, and the reader is referred to that opinion for a thorough discussion of the subject. As a matter of fundamental fairness we believe that where, as here, a defendant on direct appeal has been precluded from a review of alleged trial errors affecting his constitutional rights because of an appellate procedural rule which has since been abrogated, exceptional circumstances exist within the purview of Rule No. 121 (c) (3). Therefore, we will consider the two trial errors about which petitioner complains in this proceeding, as well as his claim of incompetent and inadequate counsel. Baker contends that articles seized in the search of his automobile at the time of his arrest in Kansas City, Missouri, for a traffic violation were the products of an unconstitutional search and were improperly admitted into evidence. The record of trial discloses the items consisted of a suitcase containing a display card of cigarette lighters identified as having been stolen from the Ralph Rye service station. No objection was interposed to the admission of the card of lighters or the suitcase itself. Objections to other articles in the suitcase were sustained on the ground no foundation had been laid which would tie them to the particular crimes for which petitioner was being tried. Although at the 1507 hearing the district court heard evidence on the merits of the issue and concluded there had been no illegal search and seizure, we believe petitioner was in no position to urge the point as a ground for relief. The contemporaneous objection rule long adhered to in this state requires timely and specific objection to the admission of evidence in order for the question of admissibility to be considered on appeal. (K. S. A. 60-404.) The rule is a salutary procedural tool serving a legitimate state purpose. (See, Mize v. State, 199 Kan. 666, 433 P. 2d 397; State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. denied, 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981.) By making use of the rule, counsel gives the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial. Furthermore, the rule is practically one of necessity if litigation is ever to be brought to an end. In Mize, the trial court, as well as this court, refused to consider a constitutional claim of illegal search and seizure because of petitioner s failure to comply with the rule. We emphasized the anomaly of denying review on appeal because of the contemporaneous objection rule and then permitting review by the more circuitous route under a K. S. A. 60-1507 proceeding. We held in either case review was precluded. While we rest our decision here, just as we did in Mize, on petitioner’s failure to comply with the rule, the failure to object may not prevent consideration of his constitutional claim in a federal habeas corpus proceeding, depending on whether it is shown petitioner deliberately bypassed the orderly procedure of the state courts. Mr. Mize pursued his quest for relief in the federal courts by habeas corpus. In Mize v. Crouse, 399 F. 2d 593 (10th Cir., 1968), the Circuit Court of Appeals, after reviewing the evidence, concluded that petitioner’s failure to object to the “tainted evidence” was knowledgeably done as a part of defense strategy and, hence, consideration of his claim was precluded. The opinion was bottomed on what had been said in Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822, and Henry v. Mississippi, 379 U. S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564. (Also, see, Nelson v. State of California, 346 F. 2d 73 [9th Cir., 1965].) In view of the federal decisions, we might add, as will later be pointed out, that in our opinion the entire record, and particularly the testimony at the 60-1507 hearing of petitioner’s trial attorney, Mr. H. C. Parrish, clearly demonstrates that the contemporaneous objection rule was deliberately bypassed as a part of defense strategy, rather than because of incompetency or inadequacy of counsel, as petitioner argues. In his claim of incompetent and inadequate counsel, petitioner contends that an examination of the trial record, as well as the evidence adduced at the 1507 hearing, shows “mere token representation and a misunderstanding about a rule of law basic to the case.” We cannot agree. Summarily, the trial judge’s findings on this point were that H. C. Parrish, a duly licensed and regularly practicing attorney in Johnson county, with extensive trial practice since 1957, was appointed January 6, 1964, to represent Baker; that after a conference between Baker and Mr. Parrish, Baker waived arraignment and entered a plea of not guilty to the crimes charged in the information; that later on that day, and on subsequent days, Parrish conferred with Baker and obtained from him a detailed statement concerning not only the admissions Baker had made to the detectives but also Baker’s record of arrests and convictions; that Mr. Parrish advised Baker of the charges against him and the penalty therefor, including the provisions of the habitual criminal statute; and that after first denying guilt to his counsel, Baker subsequently, of his own volition, admitted having burglarized the Ralph Rye station and taken property from it. The court further found that at Baker’s request Mr. Parrish con ferred several times with the assistant county attorney who agreed that if Baker would plead guilty to the charges, the state would not invoke the habitual criminal act; that being advised of the state’s willingness to comply with his request, Baker, on January 15, requested Mr. Parrish to arrange for him to appear before the court for the purpose of entering a plea of guilty; that when Baker appeared on the following day, January 16, he advised Parrish and the court he had changed his mind about pleading guilty and wished to proceed with a trial. After noting that when Mr. Parrish completed his services Baker thanked him and presented him with a -.25 calibre automatic pistol, the court concluded Parrish had adequately, effectively, fairly and competently represented Baker as his court-appointed counsel. Although not specifically mentioned in the trial court’s findings, petitioner takes trial counsel to task because counsel had not been concerned with the search and seizure question and did no research in that particular area of the law. By way of explanation, Mr. Parrish stated in the 1507 hearing that, “[I]f we had proceeded with a not guilty plea and perhaps gone straight through on that, preparing for a jury trial, I might have investigated search and seizure further, but when he started giving confessions and wanting to plead guilty, we didn’t pursue that particular matter any further.” Counsel had four days to prepare for trial after petitioner decided not to plead guilty. In respect to trial preparation, Mr. Parrish testified he went over “everything” he had obtained in his interviews with Baker, the police officers, the assistant county attorney, and information gleaned from the latter’s file. He did what research he deemed necessary; he knew this was the search of an automobile, and there was a difference between a search of a home and that of an automobile. Since he felt he understood the law of search and seizure and was relatively well-acquainted with criminal law and trial procedures generally, he did not go back and review cases on basic principles. In addition, petitioner complains tihat his trial counsel was also unconcerned with proper identification, during the trial, of the property taken from petitioner’s automobile. He points to the fact that Parrish did not object to hearsay testimony of a policeman, who was not the arresting officer, concerning evidence found in the car. In justification of his action, Mr. Parrish testified he had made so many objections during trial he was becoming fear ful of offending the jury and losing their “good will or support.” He also thought that “if we got the arresting officer on, we would hurt ourselves more than if he was not there.” As already indicated, counsel did object to many items found in the suitcase which were irrelevant to the particular crimes charged. Under the circumstances can we say petitioner is entitled to a new trial on the basis of inadequate and incompetent counsel merely because his attorney failed to object to evidence now claimed to have been obtained in an unlawful search when counsel honestly, and in good faith, thought there was no serious question of its admissibility? We think not. From counsel’s testimony, his action or nonaction may well be charged to trial strategy rather than ignorance of the law. This court stated in State v. Wright, 203 Kan. 54, 453 P. 2d 1: “We doubt if one of the best lawyers ever laid claim to having tried a case with absolute perfection. Any good lawyer, having finished the trial of a case, can think of errors that he could have avoided and also think of moves that might have improved his client’s chances. New trials cannot be granted for such reasons. An accused cannot be guaranteed a lawyer that will present a perfect trial. He can only be guaranteed a trial free of prejudicial error. . . .” (p. 56.) No useful purpose would be served by our recounting the numerous complaints now voiced by petitioner about his court-appointed attorney. Appellate counsel has meticulously combed the trial record and picked at Parrish’s every move and decision and comes up with the bald assertion of incompetent and inadequate representation. In an abundance of caution we likewise have scrutinized with care the entire record, only to arrive at the same conclusion as the district court: that Mr. Parrish “adequately, effectively, fairly and competently” represented the petitioner. The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation. (State v. Brown, 204 Kan. 430, 464 P. 2d 161; Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. denied, 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.) The representation given petitioner was far more than token representation which renders a trial a sham, the total effect of which amounts to a complete absence of counsel. (McGee v. Crouse, 190 Kan. 615, 376 P. 2d 792; Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147.) The burden of establishing the incompetency of an attorney or the in effective assistance of counsel to the extent necessary to overcome the presumption of regularity of a conviction is upon the petitioner. (Wisely v. State, 201 Kan. 377, 440 P. 2d 632; Goodwin v. State, 195 Kan. 414, 407, P. 2d 528.) The district court properly concluded that petitioner failed to sustain that burden. Petitioner’s final point relates to testimony of his oral admissions, or confession, which was received in evidence at the trial without objection. The statements were given during custodial interrogation by police officers when petitioner was returned to Johnson county from Kansas City, Missouri. In these statements petitioner admitted breaking into the service station and stealing various items, including the display card of lighters. The statements elicited constituted a confession of guilt to the crimes with which petitioner was charged. When petitioner took the stand in his own defense he testified the officers said they would go easy on him if he would admit the burglary, that they had several other charges they could press against him, so he “just went ahead and told them whatever they wanted to know.” The state introduced rebuttal testimony to the effect that no threats were made at the time of Baker’s statements, and that they were freely and voluntarily given. No request was made at trial by either party that the court hear evidence outside the presence of the jury and decide as a preliminary matter whether petitioner’s confession was freely and voluntarily made. (See K. S. A. 60-408 and 60-460 [f].) Notwithstanding the evidence presented a fair question of the voluntariness of the confession, that issue was not determined by the court as a preliminary matter, but was left to the juiy, which also had the duty to determine the weight and credibility to be given the confession. At the 1507 hearing evidence was introduced by both sides on the issue of voluntariness of the confession. The trial court determined that petitioner’s testimony of coercion was uncorroborated and failed to meet the burden-of-proof test applicable to 60-1507 proceedings. (Rule No. 121 [g], 201 Kan. xxxii.) Further, the court relied on State v. Jones, 198 Kan. 30, 422 P. 2d 888, in holding the provisions of K. S. A. 60-408 did not arbitrarily require the hearing of foundation proof out of the hearing of the jury in the absence of a request. Subsequent to the trial court’s ruling we handed down our decision in State v. Milow, 199 Kan. 576, 433 P. 2d 538, which expressly overruled State v. Jones, supra, to the extent that a hearing outside the presence of the jury need be granted only upon request. Since State v. Seward, 163 Kan. 136, 181 P. 2d 478, the law of this state has made it the duty of the trial court, upon request, to hear evidence and decide as a preliminary matter whether the confession was freely and voluntarily made without force or coercion. In Milow, the Seward principle as codified in K. S. A. 60-408 was thoroughly discussed by Justice Schroeder, in light of numerous federal decisions, and particularly Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205, decided June 22, 1964. We concluded that the statutory law of this state must yield when it is not in harmony with rights guaranteed by the Fourteenth Amendment to the federal constitution, as interpreted by the United States Supreme Court. Thus, foundation proof testing the admissibility of a confession must be heard outside the presence and hearing of the jury, even though no request for such hearing is made, unless, of course, there has been a knowing and intelligent waiver of that right by the accused —“an intentional relinquishment or abandonment of a known right or privilege.” (See, Fay v. Noia, supra, and Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A. L. R. 357.) The rule of Milow is well stated in syllabus ¶ 3: “It is the duty of a trial court, before admitting a purported confession into evidence, to conduct a proceeding separate and apart from the jury to determine from the evidence, as a preliminary matter, whether the confession was freely and voluntarily made by the accused. The range of inquiry in such collateral proceeding by the trial court is broad, and the inquiry must be based upon a consideration of the totality of the circumstances.” Jackson v. Denno, supra, was decided by the Federal Supreme Court five months after Baker’s trial. There, just as in this case, counsel did not specifically object to the jury’s determining the issue of voluntariness. Under the New York rule the trial court excluded a confession if under no circumstances could it be deemed voluntary, but left to the jury the ultimate determination of its voluntary character, as well as its truthfulness, if the evidence presented a fair question as to its voluntariness. In striking down the New York procedure, the high court observed the reliability of a confession has nothing to do with its voluntariness; the evidence given the jury under such procedure inevitably injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness. The court went on to say that it is only a reliable determination on the voluntariness issue which satisfies the constitutional rights of a defendant and which would permit the jury to consider the confession in adjudicating guilt or innocence. We believe what was said in Barnes v. State, supra, regarding the retroactive application of Jackson v. Denno, is controlling in this case: “Perhaps the most persuasive authority for the proposition that Jackson o. Denno is to be applied to convictions already finalized, even though no specific objection was made that the judge did not rule on voluntariness prior to submitting the confession to the jury, is Jackson v. Denno itself. . . . “In view of the federal decisions we are not inclined to dispose of the Jackson v. Denno issue presented on any theory of waiver. . . . we hold the state has not as a matter of. law met the heavy burden cast upon it to show that the appellant intentionally relinquished or abandoned a known right or privilege. “At the hearing granted the appellant in his 1507 proceeding there was no testimony, nor was any offered, which comes close to meeting the requirements of waiver set forth in Fay v. Noia, supra, and Johnson v. Zerbst, supra. There has been no testimony or evidence that the specific issue concerning the lack of a Jackson v. Denno hearing was raised during the trial, in the motion for a new trial, or if discussed with the appellant. In other words, there is no showing that the appellant was informed of the issue—that he had been denied due process of law in the 1956 trial—and it cannot, therefore, be said he made an ‘intentional relinquishment or abandonment of a known right or privilege,’ (p. 464) as required by Johnson v. Zerbst, supra. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights.” (pp. 354-7-8.) At the time of trial here neither petitioner nor his counsel had the benefit of the Jackson v. Denno decision, and just as in Barnes, we are not inclined to dispose of a matter so fundamental as the voluntariness of a confession of guilt on any theory of waiver. From what has been said, there are facts in substantial dispute concerning the voluntariness of petitioners confession which have not been resolved at a Jackson v. Denno hearing to which petitioner is constitutionally entitled. In other words, he is entitled to an adequate evidentiary hearing productive of reliable results. We are unable to agree with the state’s suggestion that the defi ciency has been cured by the 60-1507 evidentiary hearing, wherein the trial court found that petitioner had failed to sustain the burden of proof because his testimony of coercion was uncorroborated. Disposition of this issue cannot be upheld by application of Rule No. 121 (g). The trial court is required to make its determination of the issue of voluntariness in light of the rule that the burden of proof is upon the state to show that the confession was freely and voluntarily made before it is admissible in evidence. (State v. Milow, supra; State v. McCarther, 197 Kan. 279, 416 P. 2d 290.) Accordingly, the case is remanded to the sentencing court with instructions to proceed in accordance with the decision of State v. Milow, supra.

The opinion of the court was delivered by Kaul, J.: Plaintiff-appellant brings this action for specific performance of a contract for the sale of eighty acres of land. Defendant-appellee, a seventy-eight year old widow, and plaintiff reached an oral agreement, which was reduced to writing on a printed form by a local banker at the request of both parties. Defendant executed the contract for herself and for the heirs of W. T. Conger, deceased. The issue on appeal is whether defendant is absolved from liability for specific performance of the contract by reason of an “absolving clause,” the blanks of which were not fully filled out by the scrivener. The eighty acre tract, involved in the contract, was a part of the estate of defendant’s deceased husband. At the time of the contract, in February of 1967, defendant, Bethena S. Conger, owned an undivided one-half interest in the land, the other undivided one-half interest was owned by her three children, namely; Ardna L. Smith, Grant V. Conger and W. Duane Conger. A day or two following the signing of the contract, plaintiff and defendant went to the office of Hindman and Krysl, attorneys in Stockton, who had performed services for both parties. They contacted Mr. Krysl and requested that he prepare a proper deed. Mr. Krysl informed plaintiff and defendant that the contract would not be binding and a deed would not convey title to the property unless executed by all of the Conger heirs and their spouses. Nevertheless, a deed was prepared but was not signed by defendant nor any of the Conger children or their spouses. Plaintiff undertook to obtain the consent of the Conger children to the sale and contacted them personally, but was unsuccessful in obtaining their consent. Defendant refused to execute a deed to her undivided one-half interest and tendered back to plaintiff the $1,000 paid to her by him. Plaintiff declined to accept the tender by defendant, but on June 20, 1967, defendant delivered a check to plaintiff by restricted mail. Plaintiff retained the check but did not cash it. Thereafter, plaintiff filed this action asking that defendant be required to specifically perform her part of the agreement individually and to convey any interest of her cotenant owners, which she had the right to convey as agent, and that the purchase price be adjusted by the amount of interest defendant owns and controls, if defendant were unable to convey the entire interest in the land. Following a pretrial conference, the case was tried to the court. Specific performance was denied. The trial court found defendant did not have authority at any time to execute written instruments or conveyances of real estate for her children or their spouses. The court noted: “. . . The sale was effected by oral conversation which became merged into a banker’s typical contract. Defendant owned only one-half interest in the land. The contract contained an ‘absolving clause’ so defendant refused to deed any interest in the land. Hence, this law suit.” After making detailed findings of fact concerning the transaction involved, the trial court concluded: “The ‘absolving clause’ in the contract relieves the defendant from liability under the contract when both parties know defendant is not the holder of a full merchantable tide.” We construe the trial court’s determination to be that the “absolving clause” was intended to be included in the contract and was in fact and law a part thereof. The trial court held the only obligation of the defendant was to return the $1,000 down payment to the plaintiff with interest thereon at six percent from the date of the contract. Thereafter, plaintiff perfected this appeal and defendant cross-appealed from the trial court’s judgment directing the payment of interest on the down payment. On appeal both parties take the position that only a question of law is presented and, therefore, none of the evidence is included in the record. The facts, which we have related and will note in the course of our discussion, are gleaned from the findings of the trial court. The contract in question was prepared on what appears to be an ordinary form for real estate contracts with the usual blanks to be filled out. The portion of the contract with which we are interested consists of a sentence pertaining to the sellers’ obligation to cure a defective title if possible and if not to be absolved from the contract. It reads: ". . . If the title be found to be defective, the seller agree to have the defects in it rectified within a reasonable time, which is not to exceed _days from the date of notice of such defects; but in case such defects in the title cannot be cured or remedied within that period, and no extension of time is had between the parties, this Contract to be null and void, and the sum of.__ Dollars deposited as aforesaid, is to be returned to the buyer_.” The portion above quoted is followed by the last paragraph of the body of the contract which provides for forfeiture of the down payment on default of the buyer. It reads: “If, though the title be good and the seller £ here ha ve_ kept their part of this Contract, the buyer_fail to comply with its requirements on his part, within reasonable time # # # after being furnished with the abstract of title, or within reasonable time # # # from the date of this Contract, provided said abstract has been delivered within ten days as agreed, then the aforesaid deposit of_Dollars shall be forfeited to the seller _, but for this cause this Contract shall not cease to be operative as between the parties thereto.” Plaintiff argues that since the scrivener-banker failed to fill out the blanks, the absolving clause is not a part of the contract and should be disregarded. Plaintiff contends that all other blanks in the printed form, which pertained to the oral agreement of the parties, were filled out and thus it should be inferred the absolving clause was not a part of the agreement. While it appears, as plaintiff contends, that many of the blanks in the printed form were filled out, we are unable to draw the inference urged by plaintiff. In the first section of the contract, in which the parties were identified and the terms of the sale stated, the word seller was pluralized by inserting “s” in the blank provided. However, in the next section, which provides for the sellers’ obligation to furnish a complete abstract of title, the word seller appears three times; it is pluralized in only one instance. Certainly, the parties intended that the sellers be obligated in this regard. The absolving clause is only one provision of the sentence under consideration. The first provision obligates the seller to rectify a defective title within a reasonable time if possible. It is not suggested that defendant was not obligated under this provision merely because the letter “s” was not inserted after seller and reasonable time specified as not to exceed a fixed number of days in the blank provided therefor. If the absolving clause is to be disregarded for the reasons advanced by plaintiff, then the entire sentence must fall including the provision for the sellers’ obligation to rectify a defective title within a reasonable time if possible. The only unfilled blank in the absolving clause itself is that provided for the amount of the down payment following the words “sum of.” We note the scrivener also failed to type in the amount of the down payment in the following paragraph providing for the forfeiture of the down payment on default of the buyer. In both instances the sum is referred to as an aforesaid deposit of dollars, referring back to a prior clause of the contract in which a down payment of $1,000 is specified and acknowledged. We believe what has been said demonstrates that omissions by the scrivener resulted from inadvertence rather than design. We are well aware that, if the unfilled blanks or omissions in a contract make it unintelligible or cause the intention of the parties to be unascertainable, a court cannot write a contract for the parties by supplying the omissions. In this case, however, notwithstanding the omissions which we believe to be insignificant, the meaning of the provisions referred to is clear and the intention that they be a part of the contract, in the absence of evidence to the contrary, appears to be obvious. Plaintiff directs our attention to a statement in 17 Am. Jur. 2d, Contracts, § 280, p. 693: “Unfilled blanks in a contract may be rejected as surplusage if the parties so intended.” (p. 694.) Apparently, plaintiff construes the statement to mean that in the case of unfilled blanks an entire provision or paragraph of a contract may be rejected. If this is plaintiff’s construction it is in error. A footnote to the statement quoted cites cases (N.E.D. Holding Co. v. McKinley, 246 N. Y. 40, 157 N. E. 923; Starr v. Holck, 318 Mich. 452, 28 N. W. 2d 289; 172 A. L. R. 413) which hold that where a blank in an instrument is not filled, such blank may be rejected as surplusage if the parties so intended; and in such case the intent is to be inferred from the transaction and its details. In other words, it is the unfilled blanks rather than the entire clause or provision which may be rejected. (See, also, 17 C. J. S., Contracts, § 65, p. 742.) In the instant case, the filling in of the letter “s” after the word seller and the failure to specify an exact number of days as a reasonable time were not essential to the completion of the contract and the sum called for in the other two blanks, is supplied from another part of the instrument. Ry its inclusion with other integral and necessary provisions of the contract, and from the details of the transaction as found by the trial court, we believe the inference is properly drawn that the parties intended the absolving clause to be a binding provision. Absolving clauses, such as that before us, are common in many types of contracts. (See 17 Am. Jur. 2d § 409, p. 857, and 32 A. L. R., Anno. pp. 584, 606 and 607.) However, our attention is called to only two cases in which similar clauses have been considered by this court. In Barker v. Critzer, 35 Kan. 459, 11 Pac. 382, a seller was absolved from liability for specific performance under the provision of a contract for the sale of real estate, similar to the absolving clause in the contract here. The contract provided for a down payment of $50, which was to be forfeited if the buyer failed to perform within thirty days and if the seller failed to tender a deed within the same time the contract was at an end, without any forfeiture and the down payment was to be returned to the buyer. The seller did not tender a deed and suit for specific performance was filed. On appeal, this court held the remedy of plaintiff (successor to the buyer) was not in specific performance but to sue for the $50 if the seller refused to return it. While the court described the contract as optional in nature as to the seller (Critzer), the instrument was treated as a contract rather than an option. Plaintiff contends defendant is estopped from defending on the ground of lack of title and relies on Herman v. Sawyer, 112 Kan. 6, 209 Pac. 663, to support his position. Herman is the only other Kansas case involving an absolving clause that is called to our attention. In Herman a judgment of the district court, denying specific performance to the buyer (Herman), was reversed by this court. Prior to his contract with Plerman, Sawyer had contracted for the sale of the same land with one Fry, a resident of Missouri. Herman knew of the Fry contract, but Sawyer claimed that the Fry contract was procured by fraud and could be avoided. Shortly after executing the contract with Herman, Sawyer commenced suit to quiet title against the Fry contract, Fry removed the quiet title suit to federal court and also filed a separate action for damages for breach of contract against Sawyer in federal court. Recause of the Fry litigation, Sawyer claimed he could not deliver merchantable title to Herman and should be absolved under the terms of the contract. Probably because of the outstanding Fry contract, the following clause was inserted in the Sawyer-Herman contract: “ ‘It is agreed between the parties hereto that in case said Sawyer is wholly unable to furnish perfect title to said land, the attached check is to be returned to said Herman and this agreement canceled, and neither party to be liable for damages in any way.’” (Herman v. Sawyer, supra, p. 7) (Emphasis supplied.) In holding Sawyer not absolved under the clause and existing circumstances the court said: “The provision of the contract governing conduct of the parties if the defendant should be wholly unable’ to perform, related specifically to the outstanding Fry contract, and contemplated, not merely diligence without success, but impossibility. While the defendant, led by his counsel, testified he had done everything he could to get the suit to quiet tide disposed of, the patent fact was to the contrary. All he needed to do was to exhibit, on the equity side of the federal court, the pleading filed by Fry on the law side, and a decree would have been entered whenever applied for.” (p. 8.) The import of the Herman decision is that under the language of the clause only impossibility was absolved and not merely diligence without success. The court found that Sawyer could have easily disposed of the Fry litigation and perfected his title if he had so desired. Facts, such as related by the court in the Herman decision, are not before us in the instant case. It is not claimed or even suggested that Mrs. Conger by further diligence might have been able to secure conveyances from her co-owners. Plaintiff devotes much of his brief in advancing the proposition that where a vendor signs a contract to convey, but does not have a complete title, equitable principles compel specific performance as to whatever interest the vendor has coupled with a proper abatement from the purchase price. Defendant concedes, and we agree, that as an abstract principle of law plaintiff’s proposition is correctly stated. (See Hollingsworth v. Sell, 167 Kan. 405, 207 P. 2d 406.) However, it is not applicable to a contract qualified by an absolving clause, as found in the present case. We next turn our attention to the defendant’s cross-appeal, directed at the trial court’s allowance of interest from the date of contract to date of judgment. Ordinarily interest stops on the making of a proper tender. However, when specific performance is denied, a court is allowed considerable latitude in making such orders as it sees fit in order to administer equity between the parties. (Haston v. Citizens State Bank, 132 Kan. 767, 297 Pac. 1061.) In the instant case the court heard all of the evidence and found that plaintiff had always acted in good faith even though specific performance was denied. Under the circumstances, we believe the allowance of interest to plaintiff was within the equitable discretion of the trial court and, therefore, its ruling will not be disturbed. The judgment is affirmed as to the appeal and cross-appeal.

The opinion of the court was delivered by ■ Price, C. J.: Petitioner appeals from an order denying his motion filed under K. S. A. 60-1507 to vacate his sentence of life imprisonment. The background of the matter is this: On April 10, 1961, petitioner, Walter F. Nall, was charged with the offense of murder in the first degree (K. S. A. 21-401). He waived his right to a preliminary examination. On April 25 Mr. Homer Davis of Leavenworth was appointed to represent him. On May 5 Mr. Joseph J. Dawes, Jr. of Leavenworth was appointed to assist Mr. Davis.- On a date not shown it appears that petitioner entered a plea of not guilty by reason of insanity. On August 31, pursuant to K. S. A. 62-1531, a commission of three medical doctors was appointed to examine petitioner to determine his sanity and ability to stand trial. They made such examination and on September 15 filed a written report stating that petitioner was sane and that he was able to comprehend his position and to make his defense. On November 22 the court entered an order to the effect that the sheriff was to make petitioner available for psychiatric examination and the Menninger Clinic of Topeka was authorized to- examine petitioner at its convenience. No such examination was made. On January 23, 1962 petitioner appeared in court with Mr. Davis and Mr. Dawes, his appointed counsel. Mr. Davis announced that petitioner desired to enter a plea of guilty to the charge of murder in the first degree. Upon close questioning by the court petitioner stated that he had been in conference with his counsel; that he understood what he was doing; that he desired to withdraw his former plea of not guilty by reason of insanity and to enter a plea of guilty, and that he was pleading guilty because he felt he was guilty. The plea of guilty was accepted—and, upon formal allocution—■ petitioner stated that he had no legal cause or reason to offer why judgment should not be pronounced. Pursuant to K. S. A. 21-403 the court then heard evidence as to the facts of the homicide for the purpose of determining sentence. This evidence consisted of the testimony of the officer who questioned petitioner following his arrest—and of three voluntary written statements made by him. (In brief, we are told that petitioner— in a hold-up, shot a taxicab driver twice in the back of the head with an automatic pistol.) Counsel for petitioner stated there was no objection to this evidence for the purpose for which it was being offered, and that petitioner had no evidence to offer. A short recess was taken, following which the court imposed the sentence of life imprisonment (K. S. A. 21-403). Petitioner was not advised by the court that he had a right to appeal. In August 1967 petitioner, pro se, filed a motion to vacate and set aside the sentence imposed on January 23, 1962. The motion was set for hearing, and Mr. Robert D. Beall of the Leavenworth bar, was appointed to represent him. Mr. Beall filed an amended motion setting out fourteen grounds for relief. An evidentiary hearing was held at which petitioner was present in person and by counsel. Other than the testimony of Mr. Dawes as to his representation of petitioner and events leading up to the plea of guilty—the record does not disclose what other evidence, if any, was introduced by either side at the hearing. At the conclusion thereof the court made findings setting forth facts as heretofore related. Its conclusions were that petitioner’s plea of guilty was freely and voluntarily entered; that the judgment and sentence were valid and not subject to collateral attack; that petitioner had waived his right to be represented by counsel on an appeal from the judgment and sentence, and that there had been no denial or infringement of petitioner’s constitutional rights. Relief was denied. Mr. Beall was appointed to represent petitioner in this appeal from that ruling. Only two contentions are made. The first concerns the fact petitioner was not examined by a psychiatrist—the argument being that due to the course of events—• including the report of the commission of the three medical doctors—he found himself in the position of having no alternative than to enter a plea of guilty and throw himself on the mercy of the court rather than run the risk of the death penalty being imposed by a jury, and it is argued that no determination was ever made as to his mental condition at the time of the offense. Mental competency at the time of commission of an offense—if raised—is to be determined by the trier of the facts upon a trial. Mental competency to stand trial—if raised—is another matter (Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197), and may be determined in the manner followed here—by the appointment of a commission of medical doctors. Further, the law does not require that a psychiatrist be a member of the commission (State v. Hickock & Smith, 188 Kan. 473, 481, 363 P. 2d 541, cert. den. 373 U. S. 544, 10 L. ed. 2d 688, 83 S. Ct. 1545). By voluntarily pleading guilty petitioner waived his right to have his mental capacity at the time of the commission of the offense determined by a jury. Some mention also is made of the written statements given by petitioner to the officers following his arrest. When he voluntarily entered his plea of guilty the question whether those statements in the nature of a confession would have been admissible at trial became irrelevant (State v. Brown, 204 Kan. 430, 464 P. 2d 161). The other contention is that petitioner’s constitutional rights were denied by the failure of the court to advise him of" his right to appeal. There are several answers to this argument. One is that the right is not guaranteed by the constitution (Ware v. State, 198 Kan. 523, 426 P. 2d 78). At the time of this plea of guilty there was no statute which required the court to advise a defendant of his right to appeal. Furthermore, as has been said in recent decisions—what was there to appeal from? (Sharp v. State, 203 Kan. 937, 943, 457 P. 2d 14; Mathues v. State, 204 Kan. 204, 209, 460 P. 2d 545.) Petitioner made no attempt to appeal and does not allege he desired to appeal. At the time he entered his plea of guilty he was represented by two competent counsel—one of whom (Mr. Davis) was an attorney of many years experience in criminal law. Petitioner’s contention on this point is patently without merit. The trial court’s findings and conclusions in denying relief are fully supported by the record. The judgment is affirmed.

The opinion of the court was delivered by Fromme, J.: The defendant, W. D. Weigand, was convicted by a jury of feloniously defrauding a doctor in Dodge City, Kansas, of $5,000 by false pretenses in violation of K. S. A. 21-551. Defendant was sentenced to the penitentiary for a period of not more than five years. This is a direct appeal from that conviction. The charge arose from the defendant’s activities in promoting a marketing corporation to be organized for the purpose of promoting sales of a new and modern product to replace the common tooth brush. The product is a brushless toothpaste in tablet form called “Foam-ettes”. The tablet foams in the mouth when it is chewed and releases food particles from the teeth without brushing. After the doctor in Dodge City had examined and used a sample tablet he paid the defendant $5,000 for stock in the proposed corporation. The corporation was never formed and the doctor received no shares of stock. On appeal the defendant urges various trial errors including lack of evidence of misrepresentation as to existing facts. In view of our present decision we are concerned in this appeal with but one claim, denial of the effective assistance of counsel. This claim arises by reason of the trial court’s order requiring counsel to begin trial on the day counsel was appointed. The appointment of counsel was made pursuant to K. S. A. 62-1304. A resumé of the events bearing upon this claim follows: Defendant was present at a preliminary hearing on November 15, 1967. His retained counsel, Fred Hall, was present and preliminary hearing was waived. On May 20, 1968, the district court at the request of defendant and his retained counsel continued the trial to the fall term. That term of court began September 23, 1968. The trial was set for September 25 at which time all parties appeared. Mr. Hall asked and was permitted to withdraw from the case because of his health. The court inquired if defendant had another lawyer hired. The defendant advised he did not but he assured the court that he could and would hire counsel. The case was reset for trial October 7 at 10 o’clock a. m. and defendant was advised by the court to have his trial counsel enter his appearance in the case by September 27. No entry of appearance was made and nothing further occurred until the court convened for trial on October 7. The defendant was present without counsel and the following colloquy occurred in open court: “The Court: Do you have any body that is coming to represent you in this matter in any respect? “The Defendant: I am going to find one today, and I’ll bring them back here at a date specified in person, Your Honor. “The Court: Where are you going to find them? "The Defendant: I am going to go to Olathe, Kansas, this afternoon, and I am going to visit with my good friend, John Anderson. “The Court: This case is going to trial today, Mr. Weigand. If you want to call local counsel here and get somebody up here to consult with you in this case, why, that is fine. Do you have anybody locally that you want to consult with? “The Defendant: I don’t know any one that will, but I’ll get in the telephone directory and find someone, if it pleases the Court. “The Court: You are wasting a lot of the jurors’ time, but I’ll give you until 1:15. The case goes to trial at 1:15. That is going a little further than I intended to when we opened court this morning, seeing that you hadn’t contacted the court with reference to the fact you didn’t have counsel, when you assured me that you would have counsel make an appearance in this case a week ago last Friday, and you make no contact with the court until just a few moments before 10:00 this morning and then to tell the court that you were in traffic court downstairs.” At 1:15 p. m. court convened and the colloquy continued as follows: “The Court: The State is present by the county attorney and the defendant, W. D. Weigand, is present in court personally. ' “Have you secured counsel to represent you? “Mr. Weigand: Your Honor, I searched in the short time I had. I do not have the funds immediately available to hire an attorney. I talked with Mr. Don Shultz, and I do not have the fee immediately. So the only alternative I have is to ask the court to appoint counsel at this time. “The Court: Mr. County Attorney, would you call Mr. Jack Shultz to come up here. “We’ll take a short recess.” A ten minute recess was taken and attorney Jack Shultz was summoned and appointed to represent the defendant. On being appointed defense counsel requested a continuance and stated his reasons as follows: “Mr. Shultz: May it please the court, I cannot as court appointed counsel for this accused possibly be prepared to try this matter and to fully represent him, as I would have the duty to do, either today beginning with the impaneling of the jury or tomorrow morning. “The court well knows K. S. A. 62-1304 relating to court appointed counsel required that counsel appointed to represent accused in a criminal matter, a felony matter such as this, must fully and fairly represent that accused. I feel that being hurried into this matter at this time, knowing no more than I do about even the charge, knowing no more than I do about the State’s evidence, knowing no more than I do about the defendant’s evidence in his own behalf, it would certainly be making it impossible for me to comply with the provisions of that statute. “I would, therefore, move at this time that the defendant be granted a continuance for a period of at least two weeks in order that I might become fully apprised of the charge and the evidence available, in order that I might fully comply with this statute and fully and fairly represent this defendant. I just cannot possibly after briefly talking with this man and just getting a brief look at what I am going to have to do to properly prepare this matter, cannot possibly have it done by tomorrow. “I don’t know what previous problems have gone on in relation to counsel to represent Mr. Weigand and of course at this point that is not my concern. My concern is that he be fully and fairly and properly represented, and to require me to attempt to do that on an overnight preparation basis is just an impossibility. I think it will require a minimum of two weeks to prepare tins matter properly. “At this point, Your Honor, I might add of course the defendant is constitutionally entitled to compel the presence for testimony of witnesses in his own behalf. At this point I have not even had a shadow of the time I need to discuss with him who these witnesses might be and where they might be found and fully prepare in that regard, and of course he is entitled to that, and I think it is going to require some time, and I ask for that time. I do this realizing the inconvenience to the court and to these persons we have drawn as jurors, but I feel the constitutional rights of this man weigh a little heavier than that.” The court responded: “The court is well aware of the spot that counsel is in. The court is also aware of the fact that this case has been set down for some time and continued better than two weeks ago to this date, and nothing was done to apprise the court that this situation would arise until this morning, and I think the defendant has had all the consideration he is entitled to from the court, and I am going to direct that the jury be selected this afternoon and the case go to trial tomorrow morning at 11:00 o’clock. “I am going to direct the county attorney in the meantime to make available to you his witnesses for consultation.” Thereafter the defendant was arraigned a second time and entered a plea of not guilty. Counsel were then directed to select a jury to try the case. After voir dire examination the jurors were sworn. The trial proceedings were then adjourned to the following morning, October 8. When court convened on October 8 counsel for the defendant renewed his motion for a continuance on the grounds previously urged. He requested permission to further examine the jurors in light of information he had acquired. He requested an order requiring the prosecution to make its papers and flies available to him. The court denied the request to re-examine the jurors but continued the trial to the following morning in order to enable the defense to subpoena witnesses and to examine documents in the prosecutor’s file. The following morning when court convened the trial resumed and the state presented its evidence. The defendant presented his evidence in the morning of October 10. The jury reached its verdict on the first ballot without discussing the evidence presented to it. The evidence for the defense was limited to defendant’s testimony and the testimony of two business associates, one from Emporia, Kansas, and the other from Belpre, Kansas. Although no showing was made in the record that defendant was unable to secure additional witnesses he asserted a claim in his motion for new trial that his constitutional right to compel the attendance of witnesses was impaired. Counsel for defense filed and strenuously argued the motion for new trial asserting that defendant was denied effective assistance of counsel as guaranteed to him by the Sixth and Fourteenth Amendments to the Constitution of the United States and by Section 10 of the Rill of Rights of the Constitution of the State of Kansas. He asserted that he was required to select a jury to try the case within ten minutes after being appointed and without an opportunity to examine and discuss the state’s witnesses and the prospective jurors with the defendant. He further insisted the defendant’s right to have compulsory process to compel attendance of witnesses in his behalf was impaired. The granting of a continuance in a criminal prosecution is largely within the discretion of the trial court and its ruling in the matter will not be disturbed unless it affirmatively appears that such discretion has been abused to the extent that a defendant’s substantial rights have been prejudiced. (State v. Dickson, 198 Kan. 219, Syl. ¶ 1, 424 P. 2d 274.) Certain responsibilities are placed upon defense counsel when they undertake the defense of a person charged with crime. K. S. A. 62-1304 in pertinent part provides: “. . . Counsel employed by or appointed for the accused shall have free access to him at reasonable hours for the purpose of conferring with him relative to the charge against him and advising him respecting his plea, and for the preparation of his defense, if a defense is to be made. It is the duty of an attorney appointed by the court to represent a defendant, without charge to defendant, to inform him fully of the offense charged against him and of the penalty therefor, confer with available witnesses, cause subpoenas to be issued for witnesses necessary or proper for defendant, and in all respects to fully and fairly represent him in the action. . . .” The right of one charged with crime to be represented by counsel includes a fair opportunity to secure counsel of his own choice under the above statute. There can be no doubt that defendant was afforded ample opportunity to secure counsel of his own choice after his previously retained counsel withdrew. The lack of cooperation by the defendant and his retained counsel in preparing for trial is apparent in this record. Delay in the enforcement of our criminal law should not be permitted or condoned. The prompt disposition of criminal cases is to be commended and encouraged. However, the irresponsibility of a defendant and the failure of his retained counsel to prepare for trial cannot justify stripping counsel appointed by the court of sufficient time to acquaint himself with the crime charged. The right to counsel is a matter of substance not form and representation must fulfill the spirit and purpose of the constitutional mandate. (State v. Oldham, 178 Kan. 337, 285 P. 2d 775.) In State v. Young, 196 Kan. 63, 410 P. 2d 256, this court said: “The duty of the trial court to appoint counsel imposed by K. S. A. 62-1304 is not discharged by an assignment of counsel at such time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” (Syl. ¶ 3.) The right to effective assistance of counsel in the preparation and trial of the case is recognized in all jurisdictions. It includes sufficient time to advise with counsel and prepare a defense. (Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A. L. R. 527.) Counsel should have opportunity to acquaint himself with the facts of the case and the law. He should be afforded an opportunity to present the facts to the jury in their most favorable light. (Willis v. Hunter, 166 F. 2d 721.) Effective assistance of counsel has been defined and the minimum requirements have been applied by our court as recently as Ray v. State, 202 Kan. 144, 446 P. 2d 762. The brevity of time between assignment of counsel and the trial bears directly upon the question of whether the accused is denied the right to effective assistance of counsel. Cases on this question from other jurisdictions have been collected and appear in the annotation in 84 A. L. R. 544. A trial court should be aware of the propensities of the accused to procrastinate in the hiring of counsel. The court can and should protect itself against the irresponsibility of the defendant. After a reasonable time has been granted to the accused to procure counsel of his own choosing, as was done in this case, the accused should be ordered to appear on a day certain with counsel. If the accused has not obtained counsel on that day counsel should then be appointed to represent him and the trial date should be set with sufficient time to permit counsel to advise with the accused, prepare a defense, subpoena witnesses and acquaint himself with the facts and the law. What time is reasonable will depend upon the circumstances of each case and should be determined by the trial court in its discretion. In the present case the defendant and his retained counsel had from November 15, 1967, to September 25, 1968, to prepare for trial but did not do so. When counsel was appointed, for defendant he was required to undertake the selection of a jury within a few minutes after his appointment. He had no opportunity to acquaint himself with either the facts or the law. The accused was not a resident of that community. The doctor and others who would testify against him were citizens of the community from which the jurors were selected. The selection of a fair and impartial jury was a matter of grave importance. In the ten or fifteen minutes allotted to defense counsel before trial he could do little to prepare for the selection of the jury except to confer with the accused as to the nature of the charges. The defendant’s activities had touched others in the community. The cross current of community activities gives rise to bias and prejudice against an outsider. Under these circumstances it is difficult for counsel to be effective in the selection of a fair and impartial jury without some preparation in advance. The jury selected returned a verdict of guilty on the first ballot and without any preliminary discussion of the evidence. The trial court after selection of the jurors and upon defense counsel’s insistence continued the trial for one day in order to give counsel time to talk to witnesses and to examine the papers to be used by the state at the trial. This time for preparation was afforded during the trial and could not compensate for stripping counsel of time to prepare for the selection of a fair and impartial jury. A prompt and vigorous administration of the criminal law is commendable and we have no desire to clog the wheels of justice. What we here decide is that to force a defendant to trial ten or fifteen minutes after appointed counsel is precipitated into a serious felony case denies the accused effective assistance of counsel and violates fundamental principles of due process of law. This conclusion is not intended to indicate that evidence of guilt was inconclusive. No matter how guilty a defendant may be, or how strong and overpowering the evidence may be against him, he is entitled to a fair and impartial trial with the effective assistance of counsel. (State v. Taylor, 198 Kan. 290, 298, 424 P. 2d 612.) For the reasons set forth in this opinion the judgment of the trial court is reversed and this case is remanded with directions to grant the defendant a new trial.

The opinion of the court was delivered by Harman, C.: The issue here is whether a district court has discretionary power to allow an appeal bond to be filed out of time in an attempted appeal from probate court. The parties to this litigation, Joseph L. Torrence and Matthias G. Torrence, are brothers. Their parents were Joseph C. and Bertha P. Torrence, who had joint and contractual wills and whose estates are under administration in the probate court of Lyon county, Kansas. Joseph, as a devisee and legatee, petitioned the probate court to remove Matthias as executor of the two estates, and for other relief, because of alleged misconduct of Matthias. On November 7, 1967, the probate court denied Joseph’s petition. On November 21, 1967, Joseph duly served and filed his notice of appeal to the district court of Lyon county from the adverse ruling, together with his proof of service. He filed no bond and, in fact, on November 27, 1967, procured an ex parte order of the probate court stating he need not file a bond in connection with the appeals. No bond has ever been filed. No further action in the proceeding was taken by the parties until July 17, 1968, when Matthias filed a motion in the district court to dismiss the appeal on the ground the court acquired no jurisdiction over the purported appeals because of Joseph’s failure to file an appeal bond. On July 31, 1968, the district court sustained this motion. On August 8, 1968, Joseph filed another motion in the district court requesting it to determine whether it had discretionary power to permit an appeal bond to be filed. August 9, 1968, the court responded with a supplemental order stating it had no discretionary power to permit an appeal bond to be filed out of time. Joseph’s appeal to this court is from both the July 31 and the August 9 rulings. The only question raised is whether a district court has discretion to allow an appeal bond to be filed out of time in an appeal from probate court in which due notice of appeal has been filed in the probate court. K. S. A. 59-2404 provides in substance, so far as material here, that an appeal may be taken from an order of the probate court within thirty days after the order is entered. In construing the statute in In re Estate of Parker, 201 Kan. 1, 439 P. 2d 138, this court stated: “An appeal from an order, judgment, decree, or decision of the probate court must be perfected within thirty days after the same is made.” (Syl. ¶ 1.) Both parties agree the answer to the question at issue lies in the interpretation to be given our procedural statute pertaining to appeals from probate court (K. S. A. 59-2405) which provides: “To render the appeal effective: “(1) The appellant shall serve upon the adverse party or his attorney of record, or upon the probate judge for the adverse party, a written notice of appeal specifying the order, judgment, decree, or decision appealed from, and file such notice of appeal in the jprobate court with proof of service thereof verified by his affidavit. •“(2) The appellant, other than the state or municipality or a fiduciary appealing on behalf of the estate, shall file in the probate court a bond in such sum and with such sureties as may be fixed and approved by the probate court, conditioned that he will without unnecessary delay prosecute the appeal and pay all sums, damages, and costs that may be adjudged against him. “(3) Whenever a party in good faith gives due notice of appeal and omits through mistakes to do any other act necessary to perfect the appeal, the district court may permit an amendment on such terms as may be just.” Appellant acknowledges that under our law the filing of an appeal bond is essential to vest a district court with jurisdiction of an appeal from probate court, with exceptions not here material (see In re Estate of Bengston, 182 Kan. 322, 320 P. 2d 800), but he contends that having filed a proper notice of appeal under subdivision (1) of 59-2405 he is then entitled to the exercise of the district court’s discretion in permitting an amendment under subdivision (3). He argues that under the language of subdivision (3) the only prerequisite to its application is the good faith giving of notice of appeal. This court has upon a number of occasions construed the provisions of K. S. A. 59-2405 adversely to appellant’s position. In In re Estate of Dudley, 159 Kan. 160, 152 P. 2d 678, a notice of appeal from an order of a probate court was timely filed by an heir opposing probate of a will. No bond was filed within the statutory period of time for taking an appeal and the district court dismissed the appeal. The appellant contended that by reason of subdivision (3) of 59-2405, he, having given timely notice of appeal, might give bond two or three months after the time for appeal had expired. This court held appellant was not in position to present this question because he had never made any request upon the district court within the purview of the statute and further stated: “We add, however, that the purpose of the quoted sentence [59-2405 (3)] was to prevent trivial imperfections from defeating an appeal. Certainly the court would be reluctant to say that the simple giving of a notice of appeal would justify the delay of giving any bond until after the time for appeal had expired.” (p. 164.) In In re Estate of Freshour, 177 Kan. 492, 280 P. 2d 642, this court was again concerned with amendments permissible under subdivision (3) of 59-2405, albeit in a situation in which due notice of appeal had not been given. The statement contained in Dudley that the purpose of the amendment provision is to prevent "trivial imperfections” from defeating an appeal was specifically adhered to. This court further concluded the appeal statute must be read in its entirety, adding: “It says that in order to render the appeal effective an appellant must do certain things . . .,” (p. 501.) and that one of those things is the filing of a bond. In Freshour we find this: “In order for an appeal from the probate court to the district court to be effective, thus vesting the district court with jurisdiction thereof, it is necessary that the party appealing comply with the requirements of subdivisions (1) and (2) of the appeal statute, G. S. 1949, 59-2405.” (Syl. ¶ 1.) “The phrase ‘any other act,’ appearing in subdivision (3) of G. S. 1949, 59-2405, means an act ‘in addition to’ or ‘distinct from’ those acts already mentioned in subdivisions (1) and (2) of the statute. . . .” (Syl. ¶ 5.) The Freshour holding was referred to with approval in In re Estate of Bengston, supra, a case in which an appellant who was not a fiduciary of an estate failed to file a bond in a purported appeal from probate court, and again in In re Estate of Allgire, 183 Kan. 527, 331 P. 2d 296, and most recently in In re Estate of Lang, 195 Kan. 352, 404 P. 2d 640. Although the Freshour, Allgire and Lang cases were situations in which defective notices of appeal were involved we think the reasoning therein is sound and the conclusions expressed are valid. By statutory fiat, in order to render an appeal effective an appellant must file a bond. Here, because of the absence of the filing of a bond as prescribed, the appeal did not become effective. It was a nullity. Therefore, the district court acquired no jurisdiction of it. Lacking jurisdiction of the appeal, it naturally follows the court was without power to exercise any discretion with respect to a requested amendment (see In re Estate of Freshour, supra, p. 501). In any event a court’s jurisdiction—its power to act at all with respect to a given case—should not depend upon the exercise of its discretion in a particular way. The orders of the district court dismissing the appeal and ruling it had no discretionary power to permit an appeal bond to be filed out of time are affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Fontron, J.: This action is one to foreclose a mechanic’s lien against real estate owned by Abilene Motors, Inc., hereafter referred to as defendant or Abilene Motors. The lien claim is predicated on a written contract for the construction by the plaintiff, sometimes called Abbott herein, of an Armco steel building. The Abilene National Bank was joined as a party defendant solely because of its status as a mortgage holder. A motion for involuntary dismissal with prejudice was filed by Abilene Motors. This motion was sustained by the trial court, and the plaintiff has appealed. So far as it is material to the question presented on appeal, Abbott’s petition alleged the execution of a written agreement in which it, Abbott, was to erect the building for a price of $30,500. A copy of the contract was attached to the petition as an exhibit. Abbott further alleged it had completed the building as per contract and had also furnished, at defendant’s request, more than $1000 worth of extras, consisting of labor and materials; that Abilene Motors had paid slightly more than $28,000 on the contract and that altogether some $3500 remained due and owing. Additional allegations with respect to the filing of the lien itself are of no particular moment in this appeal. No answer was ever filed to the petition, but Abilene Motors filed a “motion for a more definite statement” under the authority of K. S. A. 60-212 (e). In its motion, Abilene Motors asked that plaintiff be required to make its petition more definite and certain by furnishing all the plans, specifications and drawings which were referred to in the contract. This motion was sustained on July 25, 1966, and subsequently Abbott complied in part by providing the defendant with certain drawings. Approximately two months later the defendant filed a motion for involuntarily dismissal pursuant to K. S. A. 60-241 ( b), the basis of this motion being that the plaintiff had not complied with the court’s order of July 25, and that the defendant was unable to answer or plead until it had been supplied with the essential elements of the contract. In this motion it was averred also that Abbott had informally advised Abilene Motors that it was unable to provide the preliminary plans and drawings on which the petition was based. This motion was heard March 5, 1968, and on April 10, 1968, the court advised counsel by letter that the motion was sustained. Thereafter Abbott filed a motion for clarification of the April 10 decision, in response to which a hearing was held and the court entered certain findings of fact which may be summarized as follows: 1. The contract made references to an attached proposal, to an attached drawing and to a basic drawing containing initial changes. 2. Plaintiff alleged it constructed the building in accordance with the contract. 3. The parties stipulated that the drawings were not available and could not have been submitted to defendant pursuant to the court’s previous order. Concluding its clarification the trial court spoke in this wise: “The court felt, and would enlarge upon its letter previously noted, since the reliance in the petition was on a contract, that is was essential for the defendant to have in his possession the exhibits, drawings, and notations made thereon before he could adequately answer a contract action; and further, as the court stated at the hearing of the motion to which this ruling goes, the court felt that the action should have been in the quantum class rather than contract.” Accepting the reasons given by the court for its decision, we think it clear that the involuntary dismissal of plaintiff’s lawsuit was not of a punitive character, i. e., that the dismissal was not imposed as a sanction under K. S. A. 60-237 (b) (2) for failure to comply with a judicial order. It appears to us that plaintiff’s counsel spoke truly when, responding to a question posed at oral argument, he stated he was certain the court’s order of dismissal was not intended to be a sanction. Accordingly, in assessing the merits of this appeal, we shall proceed on the basis that the dismissal of plaintilFs lawsuit was not predicated on a refusal to obey an order of the court. The plaintiff takes the position in presenting its side of this appeal that the trial court’s action deprived it of an opportunity to prove its case. In different words, Abbott argues that while it has the burden of establishing the terms of the construction contract, including the contents of the plans and drawings which were part thereof, it was nonetheless entitled to attempt such proof through the medium of parol evidence, it being admitted on both sides that the written documents were not available. We find a good deal of merit in the plaintiff’s point of view. It is of course true that, having alleged a cause of action based on contract, the plaintiff was required to prove the contract and its essential terms. However, the plaintiff is not to be precluded from attempting to sustain that burden of proof simply because some of the written instruments may have become lost and were thus unavailable. Secondary evidence relating to the contents of a written document becomes admissible as an exception to the hearsay rule when the writing, which would itself have been admissible, has been innocently lost or destroyed. This principle is found stated in 32A C. J. S., Evidence, § 823, pp. 164, 165, in these words: “Secondary or parol evidence generally becomes admissible where the writing or record containing or constituting the primary evidence of the fact to be proved is satisfactorily shown to have been lost or destroyed, without the fault of the party desiring to prove the fact, when the original would be admissible, . . . and where, in the case of a lost instrument, the party has made a proper search for the instrument. . . .” This rule was recognized by this court in the case of In re Estate of Marcotte, 170 Kan. 189, 224 P. 2d 998, where it was said: “It is a further established rule that upon a proper showing that an original writing containing facts relevant to issues in the case has been lost or destroyed, secondary evidence of its contents becomes admissible. In case of destruction of the original writing, the introduction of secondary evidence of its contents does not depend upon the manner in which the original was destroyed so long as the fact of its destruction is sufficiently established. . . .” (p. 193.) In the more recent case of Harrington v. Hess Construction Co., 191 Kan. 416, 381 P. 2d 519, we discover overtones quite similar to those in the case now before us. Harrington filed an action to recover damages resulting from an alleged breach of a contract to construct a house. In his petition Harrington alleged that certain plans and specifications displayed to him in an effort to induce him to sign the agreement were to be retained and preserved by a savings and loan association, which subsequently denied having them in its possession. The plans themselves were thus not available to Mr. Harrington. A demurrer filed against the plaintiff’s petition was sustained by the trial court. That action, however, was reversed on appeal, this court holding that the plaintiff should not be barred from his remedy by virtue of the loan company’s failure to keep the plans safely. Under such circumstances we said that Harrington could not be required to attach the plans and specifications to his petition. In the course of its opinion the court expressed itself as follows: “If the written plans and specifications cannot be produced at the trial, the appellees are entitled to show by parol evidence what they contained since they are not available. In Souder v. Tri-County Refrigeration Co., 190 Kan. 207, 373 P. 2d 155, it was said: “ ‘The rule against the admission of parol evidence to contradict, alter or vary the terms of written instruments is not violated when such evidence does not contradict but explains or supplements indefinite or incomplete matters contained in the instruments, or when it tends to show the relation of the parties and the circumstances under which the instruments were executed.’ (Syl. 3.)” Even though the defendant had alleged in its motion to dismiss that it was unable to answer or otherwise plead until the missing plans were furnished, it assumes a somewhat different stance in its brief, where it is contended there never was a completed contract —the argument being there was no meeting of the minds but that the understanding between Abbott and Abilene Motors was merely in the nature of an agreement to make an agreement. We do not so read the contract which was pleaded. While reference is made to certain attached plans and drawings, which it is now agreed have been lost or misplaced, and thus unavailable, the document itself is signed by both parties and bears the essential characteristics of a contract upon which agreement has been reached. There is nothing in the circumstances of this case which, so far as we can see, would make it impossible for the defendant to respond to plaintiff’s petition or, in due time, to bring the case to issue. There is naught to bar defendant from asserting a counterclaim or setoff for faulty workmanship or for breach of warranty. It may be appropriate to point out that so far as the record discloses, no discovery has been had, no depositions taken, no pretrial conferences held. At that stage in the proceedings we believe the trial court acted erroneously in denying the plaintiff the opportunity of proving the essential terms of the agreement, including the contents of the drawings, even though the burden of doing so might have been heavy. For another reason we feel the trial court acted precipitately in dismissing this action on the basis set out in its order. The petition alleged that in addition to the contract items, the plaintiff provided other labor and material at the request of the defendant. These additional items were set out in detail in an exhibit and they constituted a substantial part of Abbott’s claim. Recovery was sought for these “extras”, as well as for the balance due under the contract. Abbott’s inability to produce the original plans and drawings could scarcely prejudice the defendant in responding to the cause of action based on extra services provided at Abilene Motors’ own request. For reasons heretofore set forth, the judgment of the trial court must be reversed. This cause is remanded with directions to set the dismissal aside and to reinstate the action for further proceedings therein.

The opinion of the court was delivered by O’Connor, J.: After a marriage spanning slightly over twenty years, Robert Eugene Sinclair was granted a divorce from his wife Hazel on February 21, 1968. Custody of their two children—Gary and David, ages eighteen and thirteen—was granted to the father. Certain property was set over to each of the parties, and Robert was ordered to pay Hazel the sum of $3,000. Hazel has appealed and contends the district court erred in: (1) granting a divorce to Robert on the grounds of gross neglect of duty and extreme cruelty, (2) the division of property and alimony award, and (3) awarding custody of the boys to their father. The marriage was reasonably tranquil until 1966 when Hazel became interested in the teachings of Jehovah’s Witnesses and began studying the Bible. As a result her interest in her husband and children gradually waned to the point where she told Robert and the boys her religion meant more to her than her family or anything else. Finally, after Robert told her he would not “live with the religion” any longer, Hazel departed the home in February 1967. Following a short sojourn to Montana, she returned to Kansas and lived apart from her family. Hazel maintained little or no contact with them and did not so much as attend Gary’s graduation exercises in June 1967. On August 31, 1967, Hazel instituted an action for separate maintenance in which Robert filed a cross-petition for divorce. When the case came on for trial Hazel withdrew her petition and the case was heard on the cross-petition. Robert was granted a divorce on the grounds of gross neglect of duty and extreme cruelty about which Hazel now complains on the apparent basis there was no evidence of marital delinquency against her. She contends the evidence all related to acts of indignity and abuse on the part of her husband. The essence of her argument, as we view it, is that we should reweigh the evidence and arrive at a conclusion different from that reached by the trial court. This we decline to do. The trial judge had the duty of determining the weight and credibility to be given the testimony of the witnesses. Our task on appellate review is to examine the record and ascertain whether his findings are supported by substantial, competent evidence. If so, the findings will not be disturbed. (Cool v. Cool, 203 Kan. 749, 457 P. 2d 60; Haynes v. Haynes, 202 Kan. 83, 446 P. 2d 749.) According to Robert, when his wife first started studying to be a Jehovah’s Witness he “figured any religion was a good religion as long as they believe in God,” but then she started asking him if he “would leave money to the clan if she were to die,” and stated that “she would let her children die for lack of a blood transfusion and that the world was coming to an end in 1975.” Hazel, in her husband’s opinion, had undergone a complete personality change: her religion came before everything, she became inattentive to the children and lost interest in their school activities, she no longer believed in Christmas and refused to take part in any of the season’s festivities, and she ceased to prepare regular meals for the family as she had done before. Ry the testimony of Robert, the two boys, and Hazel’s own sister, the record leaves no doubt that Hazel had become so obsessed with her religious beliefs and activities that she completely neglected her duties as a wife and mother, and as a result, she and her husband could no longer live together. The religious zeal of a spouse may be carried to such lengths that domestic harmony is completely disrupted and the legitimate ends of matrimony destroyed, with the result that the life of the complaining spouse is rendered intolerable. (Mertens v. Mertens, 38 Wash. 2d 55, 227 P. 2d 724; Smith v. Smith, 61 Ariz. 373, 149 P. 2d 683; Golden v. Arons, 36 N. J. Super. 371, 115 A. 2d 639; Krauss v. Krauss, 163 La. 218, 111 So. 683, 58 A. L. R. 457; Anno. 25 A. L. R. 2d 930 § 2.) Such a course of conduct, we believe, characterizes behavior amounting to extreme cruelty within the purview of our divorce statute. (K. S. A. 60-1601, as amended; Haynes v. Haynes, supra; Saint v. Saint, 196 Kan. 330, 411 P. 2d 683; Preston v. Preston, 193 Kan. 379, 394 P. 2d 43.) Likewise, under the circumstances disclosed in this record, such conduct may constitute gross neglect of duty. (Haynes v. Haynes, supra; Kelso v. Kelso, 182 Kan. 665, 324 P. 2d 165.) The record discloses ample evidence to support the action of the district court in granting a divorce to Robert. Plazel also complains the lower court abused its discretion in the division of property and allowance of alimony. Robert was awarded as his separate property the residence of the parties for which they paid $10,000 and to which they added a shop at a cost of approximately $3,000, subject to a mortgage of about $5,000; the household goods and furnishings; the business and inventory; a 1959 Ford; and a 1964 Chrysler on which there was an encumbrance of $1,400. Hazel was to receive her personal effects, a 1964 Mercury automobile, and the sum of $3,000, which was to be paid over a period of time. Hazel, who was thirty-eight years of age, had been employed as a garment factory worker during various periods of the marriage. At the time of trial she was working in a factory located at Carthage, Missouri. She had also helped her husband operate taverns and a taxicab business while he worked on construction jobs. Robert began his present business in early 1959. It was operated out of the shop at the home and consistéd of buying used ball bearings, repacking and selling them, and also selling other automotive parts. Hazel helped keep the books for the business. Although Hazel insisted the total inventory value of the shop items was between $10,000 and $15,000, Robert testified the inventory would “run up around $3,000.” The bank account fluctuated greatly, depending on the sales and inventory for a particular month. The couple’s joint taxable income in 1966 was approximately $11,000. During the early part of their separation Robert gave Hazel three checks totaling $240 for support. She tore up another check for $500 he had given her. Robert also offered her a small house they owned in “East Town,” but she declined the offer. With Hazel’s consent the house was finally sold for a nominal sum and the proceeds deposited in a savings account for the children. On one occasion Hazel stated all she wanted from the marriage was the car. Actually, the record is not clear as to whether the $3,000 ordered paid to Hazel was intended as alimony or as a part of the order dividing the property. Regardless, we have concluded the court did not abuse its discretion in its decree settling the property and alimony rights of the parties. The division of property, as well as the allowance of alimony, rests within the sound discretion of the trial court, whose judgment will not be disturbed in the absence of a clear showing of an abuse of that discretion. (Cool v. Cool, supra; Clugston v. Clugston, 197 Kan. 180, 415 P. 2d 226; Saint v. Saint, supra; Preston v. Preston, supra.) In our decisions we have noted many factors which may be considered in determining whether a just result in the division of property and computation of alimony has been achieved. (See, e. g., Moran v. Moran, 196 Kan. 380, 411 P. 2d 677; Cool v. Cool, supra; Saint v. Saint, supra; Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478.) Additionally we have here a father with virtually the entire financial burden of supporting and educating two teen-aged sons. Even if we consider the $3,000 awarded Hazel as being in the nature of a division of property rather than alimony, we are unable to say the trial court erred. Although alimony may be awarded to a party irrespective of fault (Zeller v. Zeller, supra), the court may, in its discretion, refuse to grant any alimony at all (Cool v. Cool, supra.) Whether we would have made the same determination as the trial judge in this case is of no moment, for under all the circumstances we are satisfied the bounds of judicial discretion were not exceeded. Finally, Hazel contends the lower court abused its discretion in granting custody of the boys to Robert. She urges that the court’s decision was based solely on the ground of religion, which is impermissible under Jackson v. Jackson, 181 Kan. 1, 309 P. 2d 705. The case is clearly distinguishable. The import of our holding in Jackson was that religious views alone afford no ground for depriving custody to a parent who is otherwise qualified. Here, the religious beliefs of Hazel precipitated a course of action on her part of utter disregard and indifference to her children and their activities. Several events have already been mentioned. In addition, we note that after Hazel left home in February 1967 she did not contact the boys for nearly six months, and thereafter no more than three times until the time of the divorce in February 1968. At the trial both boys expressed a strong desire to remain with their father. The paramount consideration of the court in custody cases between parents is always the welfare and best interests of the children. The trial court is in the most advantageous position to make the inquiry and determination, and in the absence of abuse of sound judicial discretion, its judgment will be upheld on appeal. (Greene v. Greene, 201 Kan. 701, 443 P. 2d 263; Moran v. Moran, supra; Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746.) We find nothing in the record which would justify our disturbing the custody order of the lower court. The judgment is affirmed.

The opinion of the court was delivered by Fontron, J.: The petitioner, Lawrence Eugene Ingram, has appealed from a judgment denying relief in an action brought pursuant to the provisions of K. S. A. 60-1507. This case has previously been before the court on a direct appeal from the judgment of conviction. Our decision in that case is reported in State v. Ingram, 198 Kan. 517, 426 P. 2d 98. In February, 1966, this petitioner was tried on charges of burglary and grand larceny. He was convicted on the larceny charge alone and was sentenced under the habitual criminal act. Subsequently, Ingram filed this action which attacks the validity of the sentence imposed against him. Following an evidentiary hearing at which the petitioner was personally present, the district court denied relief and the present appeal was then taken. Although the petitioner has listed three points in his brief, they may be consolidated as follows: (1) The jury was guilty of mis conduct resulting in a compromise verdict. (2) The jury was coerced into reaching a verdict through the means of a coercive or “dynamite” instruction. Four members of the jury which convicted the defendant were present and testified at the 60-1507 hearing. All were in agreement that from the beginning of the jury’s deliberations, nine of the jurors were for conviction on both counts charged against the defendant while three were for acquittal, and that this division persisted until the final ballot was cast. Each of the three jurors who initially voted for acquittal testified, without objection by the state, that they finally agreed to a verdict of guilty on the larceny charge, not because they believed the defendant was guilty, but because they felt that in case of a hung jury the defendant might be retried and found guilty of both charges. These three jurors characterized their verdict as a compromise and each professed to have believed Mr. Ingram innocent of both charges. This cóurt has long followed the rule that a juror may not impeach the verdict in which he himself joined by the giving of testimony as to the reasoning employed by the jury in reaching its decision or what may have influenced the mental processes by which he and his fellow jurors arrived at their verdict. (See cases in 5 Hatcher’s Kansas Digest [Rev. Ed.], Trial, § 316.) This salutary rule of law, fashioned by judicial decision, has been incorporated into the statutory law of this state by the provisions of K. S. A. 60-441: “Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.” See, also, Kincaid v. Wade, 196 Kan. 174, 410 P. 2d 333; Brown v. Hardin, 197 Kan. 517, 523, 419 P. 2d 912. To engage in a dissertation, at this late date, on the many valid reasons for the rule would simply be to repeat what this court has often said on the subject. It is sufficient here to observe that retention of the rule is essential if the integrity and the finality of jury verdicts are to be preserved. None of the evidence introduced by the petitioner related to extrinsic misconduct, that is, to physical facts, conditions or activities bearing upon or influencing the jury in its determination of the issue of guilt or innocence. The testimony of those jurors who would now compromise their verdict relates solely to the reasoning process by means of which they arrived at and acquiesced in the verdict. This evidence was not competent for the purpose of impugning the verdict. As to the second point raised by the petitioner it is only necessary to point out the propriety of the so-called “Allen” or “dynamite” instruction was directly raised and passed upon adversely to petitioner in his former appeal. Our rules specifically provide that a proceeding under K. S. A. 60-1507 cannot ordinarily be used as a substitute for a second appeal. (Rule No. 121 (c) (3), 201 Kan. xxxiii.) We have zealously adhered to this principle throughout our decisions (King v. State, 200 Kan. 461, 436 P. 2d 855; Holt v. State, 202 Kan. 759, 451 P. 2d 221) and we discern naught in the circumstances of this case which would justify us in making an exception to the rule. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Harman, C.: This is a class action brought by certain taxpayers residing in Unified School District No. 237 to enjoin issuance of general obligation bonds of the district authorized at a special election. After a hearing the trial court denied injunctive relief and plaintiffs have appealed. Appellants question the validity of the election proceedings upon several grounds. We examine first that asserted to be the most serious—defective publication notice of the election. The facts upon this issue are not in dispute. Unified School District No. 237 is comprised largely of territory located in Smith county but it includes a small amount of territory in Osborne county. It desired to issue general obligation bonds of the district in an amount not to exceed $1,501,018 with which to provide sites, buildings and equipment for school purposes. The Smith County Pioneer is a newspaper of general circulation in the entire district. A notice of a special election to be held November 5, 1968, to vote on the school bond issue was published in the Smith County Pioneer on the 10th, 17th and 24th days of October, 1968. On October 18, 1968, the state superintendent of public instruction issued an order transferring territory from Unified School District No. 237 to Unified School District No. 392 and also transferring territory from District 392 to District 237. The order specifically stated the transfer of territory for election purposes and for determining tax liability for bonds issued was to be effective October 18, 1968. This action was taken pursuant to K. S. A. 1968 Supp. 72-7103 and 72-7103a. The special election was held November 5, 1968, and the bonds were authorized by a vote of 1080 to 1062. Nine qualified electors lived in the area which was transferred into the district by the October 18, 1968, order. Four of these electors voted in the bond election. Appellants urge that by reason of the transfers of territory and consequent changing of the district’s boundary the notice was defective because, after the boundary change, it was not published at least twenty-one days prior to the election. The applicable statute is K. S. A. 1968 Supp. 25-2018 (f) which in pertinent part provides: “Notice of any question submitted election of any school district shall be made by one publication by the county election officer in a newspaper of general circulation in the school district once each week for three (3) consecutive weeks, the first publication to be not less than twenty-one (21) days prior to such election.” Here the district’s boundary was changed the day following the second publication of the notice. The result was, after the district was reconstituted, a single publication instead of three, and that did not occur twenty-one days prior to the election. Stated another way, unless the first two publications be held valid and effective, less than twenty-one days elapsed between the publication and the time the election was held. Appellees argue the statute was complied with because it requires only that a notice of the election be published in a certain form and manner and the requirements as to contents and manner of publication were met. They contend in effect the irregularity did not affect the informative quality of the notice. Appellees also urge application of the rule that in challenging an election it must be shown the irregularities complained of would have changed the result of the election. Although we are aware of no authority precisely in point on the question at issue, this court has always held that publication of a notice prescribed by statute is a condition precedent to a school district election authorizing the issuance of bonds. In State, ex rel., v. Staley, 90 Kan. 624, 135 Pac. 602, this court stated: “This court has quite uniformly held that a failure to give the notice required by the statute authorizing a special election will render the proceedings void. In none of the decided cases has it ever been held that the number of electors participating or the decisive character of the vote polled affected the validity of a special election, if the notice given failed to comply with the requirements of the statute.” (p. 627.) A strict rule as to notice provisions has always been applied to special elections when the power of taxation is to be exercised. One of our leading cases on sufficiency of publication notice in school bond elections is Baugh v. Rural High School District, 185 Kan. 123, 340 P. 2d 891. It was there stated: “The statutory provisions for notice of a special election are mandatory rather than directory, and failure to comply with such mandatory provisions renders the election void.” (Syl. ¶ 3.) In State v. Bently, 80 Kan. 227, 101 Pac. 1073, a statute authorized establishment of a school district under certain conditions which included publication of a notice for a particular length of time. Publication of the notice was commenced prior to the effective date of the enabling statute. This court held the notice ineffective, saying its publication for the required length of time after the statute took effect was a condition precedent to the establishment of the school. The purpose of K. S. A. 1968 Supp. 25-2018 (f), of course, is to require that notice be given to the electors. But the statute is concerned with more than mere efficaciousness of a notice published in one issue of a newspaper. It also requires the notice be published for a particular length of time—not less than twenty-one days prior to the election. A similar statute was the subject of the appeal in Baugh and there it was held strict compliance as to the length of time of the publication notice was mandatory. A notice published one day less than the time prescribed by statute was ruled fatally defective. Appellants contend that when boundary changes in a district are made the electors are thereafter entitled to the twenty-one days’ notice required by the statute, arguing they are entitled to know the size, valuation and physical needs of the particular district in order to formulate a judgment whether to support or oppose the bond proposition. Certainly the statute does establish a particular period for decision making and reflection before the elector casts his ballot. Although a school district is a continuing body, the particular land embraced within its confines at any given time, both as to size and character, undeniably can be a factor in the process of making decisions as to expenditures. Property brought into the district and that transferred out are affected taxwise by the result of a bond election. Other considerations could exist. The crucial time is the election date, not some date prior to boundary changes and the district affected is the one existing on election day. In the case at bar the transfer of property and the consequent change of boundary may have been of little or no significance in the election. But, if a small amount of territory may be transferred during the time a publication notice is running, why could not a larger amount likewise be transferred without publishing new notice? The question arises, If transfers are to be ignored, where should the line be drawn? We think the intent and purpose of the statute, and the only safe rule as well, is that territorial changes are not to be ignored and when a boundary of a school district is changed, notice of a bond election, to be effective, must be published after the change for not less than twenty-one days prior to such election, and we so hold. The result is the notice given here was ineffective and invalid, consequently nullifying the election and requiring reversal of the judgment appealed from. In view of the conclusion already reached, and the nature of the other alleged irregularities complained of, we deem further discussion unnecessary. The judgment is reversed with directions to enter judgment for appellants. APPROVED BY THE COURT.

The opinion of the court was delivered by Fromme, J.: This is an appeal by plaintiff from a summary judgment entered in favor of defendants in a “slip and fall” negligence action. The plaintiff, a business invitee, was seriously injured shortly after entering defendants’ laundromat. The plaintiff accused defendants of failing to keep the floor in a reasonably safe condition. Summary judgment was entered after depositions had been taken from all prospective witnesses disclosed at pre-trial conference. The question raised in this appeal is whether any genuine issue of fact, one having a controlling legal effect upon the outcome of plaintiff’s claim, remained in dispute when the summary judgment was entered. In Smith v. Mr. D’s, Inc., 197 Kan. 83, 85, 415 P. 2d 251 and in Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 43, 427 P. 2d 591, we set forth the duty of a proprietor to a business invitee. That duty will be iterated in the following paragraph. A proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by business invitees in a reasonably safe condition. If an unsafe condition is created by the proprietor or those for whom he is responsible, or if it is traceable to then- actions, proof of notice of the condition is unnecessary. When a dangerous condition is neither created by the proprietor or those for whom he is responsible, nor traceable to their actions, proof of negligence with respect to a floor condition requires some showing they had actual or constructive notice of the dangerous condition. A proprietor may be charged with constructive notice of the condition if the condition existed for such length of time that the proprietor, his agents or employees should have known of it in the exercise of ordinary care. The defendants contend in this case actual or constructive notice is necessary and the absence of notice of the condition, actual or constructive, is fatal to plaintiff’s claim. They argue the facts upon which notice, or lack of it, must depend are not in dispute. Therefore summary judgment was proper. The plaintiff is of a contrary opinion. The plaintiff alleged in her petition the floor of the laundromat was “wet, slippery, dangerous and unsafe and the defendants knew, or by the exercise of ordinary care, should have known said condition of the floor existed”. The plaintiff contended at pre-trial conference there were leaves, water or other substances on the floor of the laundromat causing the floor to be slippery and the defendants failed to correct said condition. The defendants contend in their brief a summary judgment in their favor was proper because there was “no substantial, competent evidence to support a verdict and judgment for plaintiff”. This is the test applied on a motion for directed verdict at the close of evidence. It is not a proper test to determine a motion for summary judgment in advance of trial. The rule requiring substantial competent evidence to support a verdict and judgment is set forth and applied in Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380, Smith v. Mr. D’s, Inc., supra, and Bingham v. Hillcrest Bowl Inc., supra. Although defendants cite the above cases in support of their present position, those cases were not determined on motions for summary judgment. In each of those cases this court was concerned with the sufficiency of the evidence to support a verdict and judgment, and evidence had been introduced during trial. The present case rests on a summary judgment entered before trial. The rule by which a motion for summary judgment should be determined may be found in Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 790, 420 P. 2d 1019. A summary judgment should not be entered if there remains a dispute as to material facts unless the dispute as to facts is clearly shown to be sham, frivolous or so unsubstantial that it would obviously be futile to try the case. It has been said a summary judgment is seldom proper in negligence cases. See Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976, where the experience in the federal courts with negligence cases is set forth on page 579 of the opinion. We turn now to the conditions contributing to plaintiff’s fall as disclosed by the depositions. We view these conditions in a light most favorable to the plaintiff. At 11:00 a. m. the plaintiff entered the laundromat. She slipped on a “tremendously slick place” a few feet inside the front door. It had been raining since 7:00 a. m., when the laundromat was opened. It was still raining when plaintiff entered. The plaintiff attempted to clean her shoes on a small mat provided for that purpose. The mat was located just inside the front door. The floor of the laundromat had been waxed two days before. The plaintiff’s husband examined the floor after the fall occurred and discovered a slippery spot approximately eighteen inches in diameter where the fall occurred. An employee in charge of cleaning the floor had not mopped the floor during the four hour period preceding plaintiff’s fall. There was moisture on the floor inside the door around the floor mat. The deposition of one witness indicated there were wet leaves on the floor where the fall occurred, and a skid mark leading to a leaf was apparent after the plaintiff fell. Considering the posture of this case when summary judgment was rendered there was evidence available that plaintiff’s fall was caused by a “tremendously slick place” on the floor. It might reasonably be inferred the slick spot was caused by the waxing operation two days before. If the floor was in an unsafe condition by reason thereof, this condition may have been traceable to, created or maintained by the proprietor or those for whom he was responsible. Under such facts proof of actionable negligence did not require a showing that the proprietor had actual or constructive notice of the condition. However, if the fall was caused by a condition created by other business invitees notice of the condition would be necessary to establish actionable negligence. Moisture, leaves or a combination thereof resulting from traffic by others using the laundromat might have created an unsafe condition. Actual or constructive notice would be necessary in such case. At the time of plaintiff’s fall it had been raining all morning and the floor had not been mopped for more than four hours. Moisture had accumulated around the floor mat at the door and there were wet leaves on the floor where plaintiff fell. Under some of the facts disclosed in the depositions, a jury might find the moisture and leaves had caused plaintiff to fall and had remained on the floor a sufficient time prior to the accident to charge the defendants with constructive notice of an unsafe condition. We are mindful that the evidence against the plaintiff in the depositions was substantial. However, a summary judgment proceeding is not a trial by affidavits. (Brick v. City of Wichita, 195 Kan. 206, 211, 403 P. 2d 964.) Neither is it a substitute for trial by jury when discovery depositions have been taken from all the witnesses. A surmise or belief that a party cannot prevail upon a trial, no matter how reasonably entertained, does not justify refusal of a jury trial as to material issues in dispute. (Brick v. City of Wichita, supra.) The summary judgment in favor of defendants is reversed and the case is remanded for trial.

The opinion of the court was delivered by Schroeder, J.: This is an action for the wrongful death of a five year old girl as a result of a fall from the fifth floor roof of a church building. It is brought against the trustees of the church and the Montgomery Elevator Company, claiming that one or all of the defendants were guilty of negligence by leaving a door unlocked which led to the roof, by means of which the child gained access to the roof. The defendants’ motion for summary judgment was sustained at the pretrial conference, the trial court holding that the child was a licensee on the church premises, by reason of which the defendants owed her no duty of ordinary care. Appeal has been duly perfected by the plaintiff. The underlying question on appeal involves the duty of care owed by the defendants to Michelle Lemon. The material facts in this case are not in dispute. The action was commenced by Harry Lemon (plaintiff-appellant) as father and next of kin of Michelle Lemon, deceased, who was five years old at the time of her death. Leta Walker, the deceased’s grandmother, was babysitting with Michelle Lemon on April 9, 1965, and took the child with her to The First Baptist Church of Wichita where Mrs. Walker was employed part time. Mrs. Walker was a member of the church congregation, but neither Michelle nor her parents were members, nor were they affiliated with the church in any way, although the parents had formerly been members. The child had accompanied her grandmother to work at the church building in the past and had attended Sunday School there, but had never been in the care of the nursery. The child was not on the church premises for any church function or business at the time in question, nor was she in any manner under the supervision of church employees. The child was brought to the church for the convenience of her grandmother and parents. No church meetings were being conducted or in session at the time of this incident, and no children were being supervised in the church nursery on the day in question. While Mrs. Walker was busy operating a duplicating machine, Michelle went to play in the hall with her grandmother’s permission. The child was next seen falling from the south side of the roof on the fifth floor of the educational building of the church. The injuries sustained resulted in her death. No evidence was presented as to how the child got onto the roof. The child could have reached the roof of the church building either by means of a fire escape or by means of an unlocked door which allowed access onto the roof. For purposes of this appeal it will be assumed she reached the roof by means of the latter route. The Montgomery Elevator Company had a service contract to service the church elevators. On the day in question the door to the roof, which was normally kept locked, had been unlocked to permit a Montgomery employee to work in the elevator head house located on the roof. For reasons which are in dispute this door was not relocked. The plaintiff contends and alleges in his petition that the failure to relock this door constitutes ordinary negligence on the part of one or all of the defendants herein and subjects them to liability for the child’s death. The plaintiff also claimed in his petition that the defendants were maintaining an attractive nuisance, but this contention has been abandoned in the plaintiff’s brief on appeal. No allegation was made in the petition that any one of the defendants was guilty of willful, intentional or reckless conduct. No allegation was made in the petition that the church building was a dangerous instrumentality. We shall continue to refer to the parties throughout this opinion as plaintiff and defendants. The primary contention of each of the defendants herein is that the deceased child was on the church premises as a licensee, and as such they did not owe her a duty of ordinary care, but that they owed only a duty to refrain from willfully, recklessly or intentionally injuring the child. This was the basis upon which the trial court entered summary judgment for the defendants. The plaintiff, on the other hand, contends there are factual issues in dispute in this matter. He argues in his brief: “. . . it appears clear that a jury could well conclude that the deceased child has the legal status of a licensee by implied invitation or an invitee. Plaintiff contends that regardless of the particular status of the child, the basis of liability to the deceased child in this case was the forseeability of harm and the measure of duty owed by each of the defendants was care proportionate to the forseeable risk. This, of course, called for a factual determination by the trier of the facts.” The plaintiff argues further the acquiescence of the church in the use of the church premises by the public, and the Lemon child in particular, amounted to an invitation to the deceased child who thus had the status of a licensee by invitation, if not, in fact, an invitee, and in either event a duty of ordinary care was owed by the defendants. If a duty to excercise ordinary care was owed to the child, the - judgment of the trial court was erroneous. If the defendants did not owe Michelle Lemon the duty of ordinary care, the judgment of the trial court was correct. Was Michelle Lemon an invitee or a licensee? The plaintiff’s approach to this case discloses a confusion of theories. This court has made it clear that an owner of property owes an invitee a duty to exercise ordinary care for his safety. The owner of property owes a person having any other status, whether that of a trespasser, a licensee, a social guest, or a mere passerby, only the duty to avoid willfully, intentionally or recklessly injuring him. Here no claim is made that the defendants violated any duty other than to exercise ordinary care. The crucial fact that determines Michelle Lemon’s status is not whether she was invited to be on the church premises at the time of the occurrence, but rather what her purpose was for being there. In Restatement, Second, Torts § 332, an “invitee” is defined as follows: “(1) An invitee is either a public invitee or a business visitor. “(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. “(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” (p. 176.) Under the foregoing definition it is clear Michelle Lemon could not have been a “business visitor.” The fact that someone is invited to visit does not make him a public invitee. The purpose of his visit determines his status. In Restatement, Second, Torts § 332, it is said in Comment a: “ ‘Invitee’ is a word of art, with a special meaning in the law. This meaning is more limited than that of ‘invitation’ in the popular sense, and not all of those who are invited to enter upon land are invitees. A social guest may be cordially invited, and strongly urged to come, but he is not an invitee. . . .” (p. 176.) The foregoing rules in Restatement, Second, Torts, are confirmed in our decisions. In Ralls v. Caliendo, 198 Kan. 84, 422 P. 2d 862, a social guest was said not to be an invitee even though she had been invited to the home for Christmas dinner, but was a mere licensee. The status of the plaintiff there was not determined by whether or not she had been invited to be on the premises, but by the purpose for which she was there. In Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P. 2d 748, the wife of an employee was injured as a result of the employer’s negligence in maintaining a parking lot. It was clear the employer had no objection to her presence on the premises and had even, at times, provided recreational and social facilities for the families of employees. There the plaintiff argued that her husband had the status of a business invitee, and that she had the same status as that of her husband. The court rejected this contention holding as follows: “A licensee is a person who is privileged to enter or remain upon premises by virtue of the possessor’s consent, whether given by invitation or permission. “Where a wife brings her husband back to his employer’s place of business to work in the evening, and later comes to take him home, and in parking and going into the office building, slips on ice in the company parking lot suffering personal injury, she is a mere licensee under the above definition and no breach of duty by the employer toward her has been shown in the evidence.” (Syl. ¶¶ 1, 3.) The plaintiff attempts to distinguish the Backman case by saying the church involved in this case does not have the status of a private place of employment, but must be considered as a public building to which the public has an implied invitation. To support this proposition the plaintiff relies on Davis v. Central Congregational Society, 129 Mass. 367, 37 Am. Rep. 368 (1880), where it was said: “If a religious society gives notice of a meeting to be held at its house of worship, and invites the members of other societies to attend, a member of a church so invited, while on the land of the society, is not a mere licensee, and may maintain an action against the society for a personal injury sustained, while in the exercise of due care, from the dangerous condition of the defendant’s premises.” (Syl.) Many cases are cited by the plaintiff from other jurisdictions, where a person was injured on church premises while attending church-sponsored functions, similarly holding that such person had the legal status of an invitee. The distinguishing factor in the instant case is that Michelle Lemon was not in the church building for any of the purposes for which the church building was open to the public, or for any purpose connected with the operation of the church office. The plaintiff's attempt to distinguish the Backman case fails to show why the office portion of a church building is any different from the office of any other private place of business. It is important to note in cases of this type the time, place and purpose of the visit determine the status of the visitor. In the recent case of Roberts v. Beebe, 200 Kan. 119, 434 P. 2d 789, a nine year old girl was struck in the eye by a shot from a BB gun. The girl, after having been previously told to leave the yard, apparently was sitting on a fence in the back yard out of the direct line of fire, but was struck by a pellet that ricocheted. A judgment in her favor in the lower court was reversed on appeal with the following comment: “. . . This is not to say that at her tender age and under the existing circumstances she was a trespasser, but viewing the evidence in its most favorable light Jeanie could be raised to no preferred status higher than that of licensee. . . . Giving Jeanie the standing of a social guest she would have enjoyed no greater status than that of the injured guest in the recent case of Ralls v. Caliendo, 198 Kan. 84, 422 P. 2d 862, . . .” (p. 124.) The plaintiff argues that Kansas does .recognize the implied in vitation doctrine, citing Nave v. Hixenbaugh, 180 Kan. 370, 304 P. 2d 482; Campbell v. Weathers, 153 Kan. 316, 320, 111 P. 2d 72; Fleming v. Brown, 150 F. 2d 801 (8th C. C. A. 1945); and Kinney v. Atchison, Topeka & S. F. Rly. Co., 193 Kan. 223, 392 P. 2d 873. In Nave v. Hixenbaugh, supra, a passenger in an automobile was warming herself in a gas station while the driver bought gas. In Campbell v. Weathers, supra, a regular customer at a place of business operated as a restaurant and cigar store, which was open to the public, used the toilet after having looked over merchandise; and in Fleming v. Brown, supra, a train derailed killing a boy parked in a truck at a railroad station parking lot. In each of these cases the plaintiff was on the defendant’s premises for a purpose for which the general public was invited. In the Kinney case a special statute imposing liability upon railroads (K. S. A. 66-234) controlled the decision. This statute provides that railroads in this state shall be liable for all damages done to person or property, when done in consequence of any negligence on the part of the railroad companies. The holding of the court in Kinney is indicated by the following language: “. . . Accordingly, we hold where the public uses premises of the railroad, which the railroad devotes to public use with the implied permission of the railroad which has control of the premises, such as the station depot in the instant case, the Kansas law imposes a duty on the railroad to exercise ordinary and reasonable care in the operation of its railroad to avoid injury to the public on such premises, whether the individuals using the premises be there as business invitees or as gratuitous licensees; and the provisions of G. S. 1949, 66-234 define the duty of care owed by the railroad to the public under such circumstances.” (p. 228.) None of the cases cited by the plaintiff involves a situation, such as that in the instant case, where the purpose of the plaintiff’s visit to the defendant’s premises was purely social or purely for the convenience of an employee. (See Dye v. Rule, 138 Kan. 808, 28 P. 2d 758; Steinmeyer v. McPherson, 171 Kan. 275, 232 P. 2d 236; Hogan v. Hess Construction Co., 187 Kan. 559, 358 P. 2d 755; and Blackburn v. Colvin, 191 Kan. 239, 380 P. 2d 432. The place a customer visited on the premises was material in Thompson v. Beard and Gabelman, Inc., 169 Kan. 75, 216 P. 2d 798. There a customer was looking for a fitting room and wandered through an office, through another door and fell downstairs. In sustaining a directed verdict for the defendant the court said: “. . . The duty of the proprietor of a place of business which is open to public patronage to use ordinary care to make the premises reasonably safe for customers is generally limited to that part of the premises designed, adapted, and prepared for the accommodation of customers, or to which customers may reasonably be expected to go. The duty of the proprietor of a place of business to his customers does not require him to render safe for their use parts of the building reserved for use only by him and his employees, such as private offices, shipping rooms and warerooms, unless he expressly or impliedly invites or induces a customer to enter such a reserved part. (38 Am. Jur. 794, and cases cited.) A person who has received an injury in consequence of passing through a wrong doorway in a part of the building not designed for the use of unattended customers cannot recover unless he was induced to enter therein by the invitation or allurement of the proprietor. . . (p. 77.) The foregoing cases make it clear that Kansas adheres to the definition of an invitee as set forth in Restatement, Second, Torts. In the instant case Michelle Lemon was not on the premises of this church for any purpose related to the business of the church. She was there for the personal convenience of her grandmother and her parents. By reason thereof she was not an invitee but a mere licensee. Under these circumstances the duty of care owed to her by the defendants was to avoid willfully, intentionally or recklessly injuring her, unless the rule is altered by reason of her age. Does the fact that Michelle Lemon was only five years of age change the duty owed to her by the defendants? The negligence relied upon by the plaintiff in the instant case would, at best, be passive negligence arising from the failure of the defendants, or their employees, to lock the door of the church building leading to the roof. Such passive negligence cannot amount to willful, intentional or reckless misconduct and, consequently, it is not sufficient to enable recovery for the death of a licensee from the owner or occupant of the premises, absent a higher degree of care owed by the defendants to an infant licensee. (See Graham v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750.) Whether a different rule should be applied where children are involved than has been applied to adults has been squarely met in the recent case of Roberts v. Beebe, supra, where the court, after holding a nine year old plaintiff to be a licensee, states: “Generally it appears the same rule applies even though the trespasser or licensee might be an infant. (Healer v. Inkman, 94 Kan. 594, 146 Pac. 1172; United Zinc Co. v. Britt, 258 U. S. 268, 66 L. Ed. 615, 42 S. Ct. 299, 36 A. L. R. 28; 99 A. L. R. 2d Anno. 461, 462; 65 C. J. S., Negligence, § 63 (68), p. 795. . . .” (p. 124.) The case holds in substance that a nine year old girl occupying the status of a licensee on the premises is entitled to no greater protection than an adult. In other words, the nine year old licensee has no cause of action because of injury received through the ordinary negligence of the owner or occupant of the premises to which the license extends. The owner or occupant of the premises owes no duty to the licensee except to refrain from willfully, intentionally or recklessly injuring her. I The court went on, however, to recognise an exception to the general rule, established by application of the attractive nuisance doctrine, not here applicable. Another exception to the general rule is found in Wroth v. McKinney, 190 Kan. 127, 373 P. 2d 216. There the plaintiff was employed by the defendant to do certain plumbing work at the defendant’s residence, and the plaintiff’s four year old son, who accompanied him to the premises, went into the house to use the bathroom. While in the house the child found a loaded revolver in the bedroom, easily accessible to the child. In playing with the gun the child killed himself. The court held the child to be no less than a licensee, but because the defendant had a dangerous instrumentality on his premises he was required to use the highest degree of care. The duty of care imposed upon one arising from the ownership of a dangerous instrumentality was discussed in the opinion as follows: “Kansas has long followed the rule that the highest degree of care is required of all responsible persons having ownership or control of dangerous explosives such as dynamite and firearms. (Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320.) Under the Clark case the degree of care has to be commensurate with the dangerous character of the instrumentality and a duty to exercise the highest degree of care never ceases, (p. 271.) On the same subject, see Goehenour v. Construction Co., 104 Kan. 808, 810, 180 Pac. 776.” (p. 130.) The foregoing doctrine concerning ownership of a dangerous instrumentality has nothing whatsoever to do with the issue in the instant case. A church building cannot be classified as a dangerous instrumentality, and an unlocked door leading to the roof of the church building does not fall in this category. In the instant case the duty owed to Michelle Lemon by the defendants was to avoid willfully, recklessly or intentionally injuring her. The plaintiff does not contend in his brief that such a duty was breached. The mere fact that Michelle Lemon was five years old is not sufficient to impose liability upon the defendants herein. The defendant, the Montgomery Elevator Company, was not an owner or possessor of the church premises herein, but its employee was engaged in a routine service call under a routine service contract. As such its duty can be no greater than the owner of the premises. One who does an act or carries on an activity upon land on behalf of the possessor is subject to the same liability, and enjoys the same freedom from liability, for physical harm caused thereby to others upon and outside of the land as though he were the possessor of the land. (Restatement, Second, Torts § 383; and see Roberts v. Beebe, supra.) There is no support in the record for the contention that Michelle Lemon was an invitee as to any of the defendants. The judgment of the lower court is affirmed.

The opinion of the court was delivered by Fatzer, J.: This is an appeal from a judgment imposed by the district court of Sedgwick County, entered on a plea of guilty to burglary in the second degree (K. S. A. 21-520), unlawful possession of a pistol (K. S. A. 21-2611), and a sentence on both counts of not less than five years nor more than ten, and for a period not exceeding five years, the sentences to run consecutively. On May 22,1967, at approximately 3:49 a. m., appellant was found and arrested on the premises of the Ortmeyer Lumber Company, Inc., in Wichita. Upon investigation of those premises by police officers, signs of forcible entry were discovered, a screen having been broken loose and removed from an outside window on the warehouse through which entrance had apparently been made. An inside door connecting the warehouse and office was open and its glass broken. Police officers proceeded to search the yard which was completely enclosed by an eight-foot-high fence. In the course of the search, officers noticed what appeared to be a green rag hanging from beneath a large flatbed truck parked in the yard. A closer view proved this to be a mans trousers. He was trying to hide by hanging to the driveshaft underneath the truck. He was ordered out from under the truck, but he hesitated, saying he was stuck. A police dog was released and in an attempt to get away from the dog, a loaded pistol fell from the man s possession. A chisel was found in appellant’s coat pocket after he was taken into custody. On the same day, a complaint was filed and appellant was arraigned on charges of second degree burglary and unlawful possession of a pistol. On May 31, 1967, a preliminary examination was held, the appellant appearing in person and with his retained counsel. Four witnesses testified on behalf of the state and the defendant offered no evidence. At the conclusion of the preliminary examination, the defendant was bound over to the district court to stand trial on the charges of burglary in the second degree and unlawful possesion of a pistol having a barrel less than twelve inches in length, after conviction of an enumerated felony as provided in K. S. A. 21-2611. On July 24, 1967, an information was filed charging the appellant with burglary in the second degree and unlawful possession of a pistol. On the following day, retained counsel upon his request was given permission to withdraw from the case. The district court, upon finding the appellant indigent, appointed Roscoe Austin, a competent and experienced member of the Wichita Ear, to represent him. On August 14, 1967, appointed counsel moved for a transcript of the preliminary hearing and was granted a copy at state expense. On September 12, 1967, a motion for reduction of bail was denied. On October 13, 1967, appellant, pro se, moved for an order dismissing appointed counsel, which motion was overruled October 16, 1967. On the same day, October 16, 1967, a jury panel was called and voir dire examination conducted. A jury was selected, no preemptory challenges being exercised by either party. At 2:30 p. m., after being sworn, the jury was excused until 9:30 a. m. the following day to allow counsel additional time to prepare. Out of the presence of the jury, the state notified the defendant and his counsel that in the event he was found guilty of the offenses charged, the state would move the court to sentence him under the Habitual Criminal Act (K. S. A. 21-107a), and that it would offer in evidence three specifically named prior convictions of the defendant. On the same day at 4:35 p. m. the appellant appeared with his appointed counsel and entered pleas of guilty to both counts. Upon those pleas being found by the court to be voluntarily and understandably made, the appellant was sentenced for the terms previously indicated. He was not sentenced under the Habitual Criminal Act. It is universally accepted that an accused’s voluntary plea of guilty in a criminal case is a confession of guilt of the crime charged and every fact alleged therein, and that legally is the most formal and binding confession possible for him to make. (Wippel v. State, 203 Kan. 207, 453 P. 2d 43; Wisely v. State, 201 Kan. 377, 440 P. 2d 632; Miller v. State, 200 Kan. 700, 438 P. 2d 87.) The appellant attacks the judgment and sentence, contending that count two of the information was fatally defective and the judgment and sentence based thereon is void. The pertinent part of count two of the information reads: “. . . that in the County of Sedgwick and State of Kansas, and on or about the 22nd day of May, A. D., 1967, one Theodore Way did then and there unlawfully, feloniously, willfully possess and have in his custody and control a pistol, to-wit: A .45 Caliber Webley Mark IV, bearing Serial No. 328816, after having been convicted of a felony: United States District Court, received at El Reno Federal Penitentiary December 11, 1953, on a sentence of three years; and United States District Court on bank larceny (embezzlement), and sentenced to three years at the United States Penitentiary at Leavenworth, Kansas; all of said acts then and there committed being intentional, unlawful, felonious and wilful and being contrary to the statutes in such cases made and provided and being against the peace and dignity of the State of Kansas. (K. S. A. 21-2611.)” The appellant asserts that no certain felony is described as one of those enumerated in K. S. A. 21-2611, and a judgment based on count two cannot be supported. The rules governing the sufficiency of an information are statutory and provide that the offense charged must be clearly set forth in plain and concise language and that the offense charged be stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case. (K. S. A. 62-1010.) It is further provided by statute that no indict ment or information may be quashed for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime charged, nor for any other defect or imperfection which does not tend to prejudice the substantial rights of the defendant. (K.S. A. 62-1011.) The specific portion of the above quoted language contained in the information which appellant attacks is as follows: “United States District Court, received at El Reno Federal Penitentiary December 11, 1953, on a sentence of three years; and United States District Court on bank larceny (embezzlement), and sentenced to three years at the United States Penitentiary at Leavenworth, Kansas . . .” It is obvious count two of the information was not drawn as clearly and concisely as it might have been by a careful and experienced prosecutor. However, the latter portion or second allegation of a felony does allege “bank larceny (embezzlement)” as a crime of which appellant was previously convicted. The charge is not bad for duplicity. (State v. Chaplain, 101 Kan. 413, 166 Pac. 238; State v. Maxwell, 151 Kan. 951, 102 P. 2d 109.) At the preliminary hearing, copies of the certified prison records were introduced which recited the specific judgment and commitment on which the state relied. The record discloses the appellant’s conviction of “bank larceny” was for violation of the crime defined in the first paragraph of 18 U. S. C. Sec. 2113 (b), which reads: “Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both. . . .” It is clear from the three-year sentence imposed that the appellant was found guilty of violating the above quoted section, which crime as therein set out would be defined in this state as grand larceny. (K. S. A. 21-533.) Grand larceny is one of those crimes enumerated in K. S. A. 21-2611 as an element of the crime prohibited by its provisions. We think the facts as alleged in the information were set forth in such a manner as to confer jurisdiction over the appellant and that he knew what antecedent crime he was alleged to have committed in connection with the crime as charged in count two. Appellant next contends his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States and Section Ten of the Bill of Rights to the Constitution of the State of Kansas to effective assistance of counsel were denied by reason of the district court’s refusal to dismiss his appointed counsel at his request. The appellant does not contend he was denied effective assistance by his court appointed counsel, and no evidence of that fact is found in the record. However, he does contend he has a right to appointed counsel of his choice and with whom he is satisfied. Mr. Austin was appointed to represent the appellant on July 25, 1967, and he afforded the appellant diligent and effective assistance throughout all critical stages of the proceedings. On September 18, 1967, appellant’s trial was set for October 16, 1967, and thereafter the appellant filed his pro se motion to dismiss appointed counsel, alleging “counsel has evinced no interest in defendant’s case.” The district court again advised the defendant that Mr. Austin was very capable of representing him and that the court would proceed in the selection of a jury and the trial of the case. As indicated, a jury was selected and dismissed until 9:30 a. m. the following day. Thereafter, and at 4:35 p. m. the appellant appeared before the court with appointed counsel and entered pleas of guilty to both counts. The appellant’s contention on this point was considered in State v. Walker, 202 Kan. 475, 449 P. 2d 515, and it was said: “Did the court err in its ruling? There can be no question, of course, as to entitlement to counsel. The nature of the right was recently discussed in Ray v. State, 202 Kan. 144, 446 P. 2d 762, in which this court stated the right is not a matter of mere form, but one of substance; that it contemplates the guidance of a responsible, capable lawyer devoted to his clients interests. “This right, however, is not wholly unrestrained. An indigent defendant may not compel the court to appoint such counsel as defendant may choose. Such appointment lies within the sound discretion of the trial court (Tibbett v. Hand, 294 F. 2d 68 [C. A. 10]). Likewise, whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide (United States v. Burkeen, 355 F. 2d 241 [C. A. 6]. . . .” (l. c. 477.) In the Walker case, the appellant gave as his reason for dissatisfaction his counsel’s “impression” that he was guilty and that counsel did not want to give him “proper defense.” It was held there was no abuse of discretion in the district court’s ruling denying the appellant’s request to discharge appointed counsel. Here, the appellant alleged his counsel “evinced no interest in defendant’s case.” The record shows otherwise and under the circumstances we find no abuse of discretion in the court’s ruling on October 16, overruling the appellant’s request to dismiss Mr. Austin. The appellant’s substantial rights were in no way prejudiced. See Reickauer v. Cunningham, 299 F. 2d 170, 172, cert. den. 371 U. S. 866, 9 L. Ed. 2d 103, 83 S. Ct. 127, rehearing denied 375 U. S. 874, 11 L. Ed. 2d 105, 84 S. Ct. 31; Betts v. Brady, 316 U. S. 455, 86 L. Ed. 1595, 62 S. Ct. 1252. Appellant lastly complains the district court erred in denying his motion to reduce bail, and further complains the voir dire examination was not recorded by the official court reporter. Neither point is well taken. The purpose of bail is to insure the presence of the prisoner at a future hearing and the amount to be required in each case rests in the sound discretion of the presiding magistrate. (Craig v. State, 198 Kan. 39, 422 P. 2d 955.) The appellant, in the presence of his appointed counsel, voluntarily and understandably entered pleas of guilty to the charges alleged against him, and he was not tried by a jury. Where a person accused of crime enters a plea of guilty, he is deemed to have waived irregularities which may have occurred in the proceedings prior thereto. Any so-called “irregularities” pertaining to reduction of bail is waived where a defendant in a criminal proceeding enters a voluntary plea of guilty in the district court. (State v. Kilpatrick, 201 Kan. 6, 439 P. 2d 99.) No error appearing, the judgment is affirmed.

The opinion of the court was delivered by O’Connor, J.: In a bid for postconviction relief under K. S. A. 60-1507, petitioner Donald Eugene Davis has appealed from the order of the district court denying his motion after an evidentiary hearing. Two grounds are urged as the basis for setting aside petitioner’s pleas of guilty to the offenses of murder in the first degree and attempted escape from the penitentiary by force or violence: his pleas were coerced and involuntary, and he was denied the effective assistance of counsel. The offenses occurred in the state penitentiary June 20, 1954, when petitioner and five other inmates, while attempting to escape, shot and killed a guard. All six men were charged. The first case tried was that of Henry Parker and resulted in his being found guilty by a jury on November 9, 1954. Six days later the cases of the other men, which included that of the petitioner, were called for trial. Each was represented by individual counsel. The parties proceeded to select a jury, but before the selection had been completed, the court recessed for lunch. At the beginning of the afternoon session petitioner and his codefendants asked, and were given leave, to withdraw their pleas of not guilty, and entered pleas of guilty to the offenses alleged in the information. After the court heard evidence pertaining to the homicide, and arguments of counsel, each of the defendants was afforded an allocution. The petitioner, stating there was no legal cause or reason why judgment and sentence should not be pronounced, was sentenced to life imprisonment on the murder charge and not exceeding five years on the escape offense. Two of the codefendants have unsuccessfully attacked their sentences by 60-1507 proceedings. (See, Knight v. State, 203 Kan. 652, 455 P. 2d 578, and Rollins v. State, 200 Kan. 695, 438 P. 2d 99.) The factual backgrounds of those cases are identical with that of the instant case. With the exception of the uncorroborated testimony of petitioner that he was threatened with being “hung,” petitioner here, just as in Knight, contends his pleas of guilty were coerced and involuntary because of his confinement for six months prior thereto in the segregation and isolation building at the penitentiary where he was on short rations, without clothing, and was compelled to sleep on concrete floors. Petitioner offered no evidence that his change of plea was induced by any promises that his place of confinement would be changed. What was said and held in disposing of the same contention in Knight applies with equal force here. In addition, we view petitioner’s assertion that he was threatened with being hanged if he did not plead guilty as no more than a clear choice of alternatives which any defendant faces where, if convicted, there are several possibilities of punishment. Whether he pleaded guilty or not, the court (or jury) had the responsibility of imposing either the death sentence or life imprisonment in the event of conviction. A plea of guilty to a charge of first degree murder in no way forestalls the possibility that the district court, after hearing evidence, will inflict the death penalty. (See, State v. Kilpatrick, 201 Kan. 6, 439 P. 2d 99; State v. Miller, 165 Kan. 228, 194 P. 2d 498.) The choice of pleading guilty or standing trial was for the petitioner after consultation with his counsel. In exercising that choice, petitioner could-well have taken into consideration the possibility that the death sentence would not be imposed; but that alone in no way amounted to coercion which would vitiate his pleas of guilty. (Whaley v. State, 202 Kan. 175, 446 P. 2d 397; Stiles v. State, 201 Kan. 387, 440 P. 2d 592.) We find nothing in the record to justify our disturbing the trial court’s deter- initiation that petitioner s pleas of guilty were freely and voluntarily entered. Likewise, we find no merit in petitioner’s further claim he was denied the effective assistance of counsel because he had only fifteen minutes to consult with his attorney prior to entering his pleas of guilty. The record discloses that counsel was appointed more than two months prior to trial. Thereafter, pleas of not guilty were entered, and the case had proceeded to trial. During the afternoon of the first day of trial petitioner and his codefendants entered their separate pleas of guilty. The purpose of the allocution given the petitioner prior to sentence was to afford him the opportunity to present any complaint which would impugn the integrity of the proceedings that had transpired up to that time. (Knight v. State, supra; Craig v. State, 198 Kan. 39, 422 P. 2d 955; Walsh v. State, 195 Kan. 527, 407 P. 2d 516.) The record nowhere indicates that petitioner requested more time to confer with his attorney, nor is there any suggestion that such a request was made of counsel. No hint is given that petitioner and his attorney had not had a fair opportunity to discuss the case, including the exploration of various tactics that might lead to less severe punishment. In fact, counsel’s recommendation of life imprisonment for petitioner as well as the other codefendants proved successful, for the trial court imposed the lesser of the two penalties authorized by the statute. The adequacy of an attorney’s services to his client must be gauged by the totality of his representation. (Wright v. State, 199 Kan. 136, 427 P. 2d 611; Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. denied 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.) We find nothing reflecting adversely upon counsel’s competency or the adequacy of his efforts in behalf of his client. The judgment is affirmed.

Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Scott C. Stock-well, of Lawrence, Kansas, an attorney admitted to the practice of law in the state of Kansas. The complaint filed against the respondent alleged that the respondent violated KRPC 1.1 (2003 Kan. Ct. R. Annot. 324) (competence); KRPC 1.3 (2003 Kan. Ct. R. Annot. 336) (diligence); KRPC 1.4 (2003 Kan. Ct. R. Annot. 349) (communication); KRPC 1.5 (2003 Kan. -Ct. R. Annot. 362) (fees); KRPC 1.15(b) and (d)(l')(ii) (2003 Kan. Ct. R. Annot. 395) (safekeepingproperty); and KRPC 8.4(a) and (g) (2003 Kan. Ct. R. Annot. 464) (misconduct). A disciplinary panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing as required by Kansas Supreme Court Rule 211 (2003 Kan. Ct. R. Annot. 264). The office of the Disciplinary Administrator appeared by and through Alexander M. Walczak, deputy disciplinary administrator. The respondent appeared pro se and filed no exceptions to the disciplinary panel’s final hearing report. The final hearing report of the panel makes the following findings of fact, conclusions of law, and recommendations to this court: “FINDINGS OF FACT “Scott C. Stockwell (hereinafter “the Respondent”) is an attorney at law. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Lawrence, Kansas. . . . The Respondent was admitted to the practice of law in the state of Kansas on September 28, 1984. “2. On April 21, 1994, Dolly McCauley executed a revocable trust agreement. The trust was titled the T994 Dolly Madison Auld McCauley Living Trust’ (hereinafter “Trust”). Originally, Mrs. McCauley and Mark Williams were co-trustees of the Trust. Thereafter, on June 24, 1994, Mrs. McCauley amended the Trust Agreement, and replaced Mr. Williams with attorney Donald L. Pitts. [Here, a footnote from the hearing panel stated:] It appears that Mr. Pitts drafted the Trust Agreement for Mrs. McCauley. “3. The Trust Agreement provides, in pertinent part, as follows: ARTICLE III ‘Successor Beneficiaries ‘Upon the death of the Grantor, the trust fund shall be distributed as follows: ‘Section A. To each of grantor’s then living grandchildren, five thousand dollars ($5,000.00) to be paid outright or held in trust pursuant to Article IV. ‘Section B. One-third {Va) of the remaining fund each to William M. McCauley and Robert B. McCauley by representation, paid outright or held in trust pursuant to Article IV. ‘Section C. The remaining balance of the fund to Betty R. McCauley Buford, to be held in trust for her life. A monthly distribution shall be paid and distributions made only for life threatening medical expenses of the beneficiary or her living issue, as determined solely by the Trustee. Because of her special needs, any such monthly distributions to the beneficiary shall not be made by the Trustee if it will disqualify the beneficiary from residing in the place of residence she occupies at the time of my death. Upon her death, the then remaining trust fund shall be paid to her children, by representation, outright or held in trust pursuant to Article IV. ‘Section D. In the event that any one of Grantors children predeceases the Grantor and leaves no issue, that share shall be distributed equally to Grantor’s surviving children, by representation. ‘Section E. If none of Grantor’s children or their issue survive Grantor, the remaining trust funds shall be transferred, conveyed and paid over to Lawrence Memorial Hospital, Lawrence, Kansas, to be used where most needed with'memorial recognition given to the Grantor. • ■ ■ ‘ARTICLE IV ‘Distributions to Minors or Incompetents ‘Shares shall be paid to the beneficiaries, outright and absolutely, except that if a beneficiary is a life in being at my death and under age thirty-five (35) years or determined to be incompetent as defined in this trust, then in that event, the share (or a portion thereof as hereafter specified), shall be turned over to my trustee hereafter named, and the trustee shall hold the designated amount as a separate fund vested in such minor or incompetent, but subject to the power in trust hereby given to the Trustees to administer and invest such fund and to use the income or principal thereof for the benefit of such beneficiary as if such fund were held in trust hereunder. . . . “4. Because Mr. Pitts accepted a position with the Kansas Attorney General’s office, Mr. Pitts transferred his pending cases, looked for an attorney to serve as successor trustee, and closed his law practice. The Respondent agreed to take some of Mr. Pitts’ cases. “5. In October, 1997, Mr. Pitts introduced Mrs. McCauley to the Respondent. During that same meeting, the Respondent met with two of Mrs. McCauley’s children, William M. McCauley and Betty R. McCauley Buford. [Here, a footnote from the hearing panel stated:] Mrs. Buford suffers from a mental illness. Because of her disability, Mrs. Buford receives social security disability benefits. And, at the time of Mrs. McCauley’s death, Mrs. Buford was residing in a sheltered living complex. “6. On January 17,1998, Mrs. McCauley died. At the time of Mrs. McCauley’s death, all of her children were living and had exceeded the age of 35. In addition to her children, Mrs. McCauley was survived by six grandchildren: Johna Fox (age 33), William W. McCauley (age 31), Chad McCauley (age 29), Beau W. Buford (age 27), Travis McCauley (age 27), and Misty R. Noah (age 24). “7. On January 18, 1998, the Respondent and Mr. Pitts met with Mrs. Mc-Cauley’s three children at the funeral home regarding the Trust. “8. On April 1, 1998, the Respondent replaced Mr. Pitts as the trustee of Mrs. McCauley’s Trust. At the time that the Respondent became trustee, a number of tasks needed to be completed. First, the Respondent needed to apply to the Internal Revenue Service for a taxpayer identification number for the Trust. Second, according to the Trust Agreement, distributions needed to be made. Third, the Respondent needed to determine whether the Trust Agreement terms regarding Mrs. Buford qualified as a ‘Special Needs Trust.’ And, fourth, the Respondent needed to segregate the remaining proceeds to be paid to the grandchildren. [Here, a footnote from the hearing panel stated:] Even though Mr. Pitts remained as trustee following Mrs. McCauley’s death, until April 1,1998, Mr. Pitts did not obtain a taxpayer identification number from the IRS for the Trust, distribute any Trust proceeds, determine whether the Trust Agreement terms regarding Mrs. Buford qualified as a ‘Special Needs Trust,’ nor did he segregate the remaining amounts to be paid to the grandchildren. “9. After becoming trustee, the Respondent did not immediately apply to the Internal Revenue Service for a taxpayer identification number, distribute any proceeds of the Trust, determine whether the Trust Agreement terms regarding Mrs. Buford qualified as a ‘Special Needs Trust,’ nor did he segregate the grandchildren’s portions of the Trust estate. [Here, a footnote from the hearing panel stated:] It was not until March 26,2000, that the Respondent applied to the IRS for a taxpayer identification number for the Trust. “10. The Respondent failed to file the 1998 tax return for the Trust on or before April 15, 1999, as required by law. “11. On December 13, 1999, William McCauley sent the Respondent an electronic mail message. In the message, Mr. McCauley requested that the Respondent provide an accounting of the Trust. The Respondent did not immediately respond to the electronic message. Moreover, the Respondent did not provide an accounting of the Trust to Mr. McCauley in response to the request. [Here, a footnote from the hearing panel stated:] At the time the Respondent resigned as trustee of the Trust, the Respondent provided a final accounting of the Trust. “12. The Respondent faded to file the 1999 tax return for the Trust on or before April 15, 2000, as required by law. (The Respondent filed the 1999 tax return for the Trust on June 22, 2000.) “13. On April 25, 2000, the Respondent sold the real estate owned by the Trust. The buyer provided the Respondent with $5,000.00 in earnest money. The Respondent deposited the earnest money into his attorney trust account. After the sale was completed, the Respondent failed to transfer the earnest money to the Trust’s account. Because the Respondent sold the real estate without the assistance of a real estate agent, the Trust did not pay a realtor’s fee. “14. The Respondent failed to file the 2000 tax return for the Trust on or before April 15, 2001, as required by law. “15. William McCauley served as the primary liaison between the beneficiaries and the Respondent. From time to time, Mr. McCauley called the Respondent to obtain information regarding the Trust. Many times, however, the Respondent was not available when Mr. McCauley called. Furthermore, the Respondent failed to return nearly all of Mr. McCauley’s telephone calls. “16. In July, 2001, William McCauley scheduled a meeting with the Respondent for August 3, 2001. Additionally, the meeting was to be attended by Robert McCauley and Betty McCauley Buford. Apparently, when William McCauley scheduled the meeting with the Respondent, Mr. McCauley made it clear to the Respondent that a successor trustee needed to be appointed. “17. Prior to the August 3, 2001, meeting, the Respondent had the tax returns for the Trust for tax years 1998 and 2000 prepared. “18. Even though he had scheduled the meeting with the Respondent, and because the Respondent had failed to communicate with him and had not distributed the Trust estate pursuant to the Trust Agreement, William McCauley retained attorney Keenan Post. Mr. Post accompanied William McCauley to the August 3, 2001, meeting. The Respondent, however, was not aware that William McCauley had retained an attorney to represent him and that the attorney would be coming to the meeting. “19. At the outset of the meeting, Mr. Post asked the Respondent why Mr. Post should not file a complaint with the Disciplinary Administrator’s office regarding his handling of the Trust. During the meeting, the Respondent provided Mr. Post with the tax returns that the Respondent had prepared for 1998 and 2000. Also, during the meeting, the Respondent agreed to resign as trustee when a successor trustee was appointed. “20. On August 17, 2001, the Respondent met with Mr. Post and representatives of Capital City Bank. At that time, Capital City Bank was appointed as successor trustee for the Trust. “21. Prior to the August 17, 2001, meeting, the Respondent paid himself $8,735.48 in legal fees by transferring the $5,000.00 in earnest money from his attorney trust account to his operating account on August 3, 2001, and by writing a check drawn on the Trust’s account in the amount of $3,735.48, on August 17, 2001. “22. The Respondent did not make any distributions to the beneficiaries during the time period he served as the trustee of the Trust. “23. In January, 2002, Mr. Post, acting as the attorney for the successor Trustee, Capital City Bank, demanded that the Respondent return the attorney fees taken by the Respondent. Mr. Post and the Respondent negotiated a settlement of the return of the fee. The Respondent agreed to pay the Trust $12,026.91 in three installments. The Respondent provided the bank with three post-dated checks. The Respondent provided the bank with a check that was dated March 15, 2002, in the amount of $4,026.91, a check that was dated April 15, 2002, in the amount of $4,000.00 and a check that was dated May 15,2002, in the amount of $4,000.00. “24. The first two checks were paid when presented; however, the check that was dated May 15, 2002, was presented twice and returned twice because there were not sufficient funds in the account to pay the check. On June 4,2002, Capital City Bank wrote to the Respondent and demanded payment pursuant to the worthless check statute. The Respondent did not respond to the letter. “25. On July 19, 2002, Todd Butler, an attorney retained to collect the debt for Capital City Bank, wrote to the Respondent and demanded payment. The Ré-spondent did not respond to the letter. “26. On August 2, 2002, Mr. Post and Terri D. Thomas of Capital City Bank filed a written complaint with the Disciplinary Administrator’s office. “27. On August 7, 2002, Mr. Butler again wrote to the Respondent regarding the bad check. The Respondent failed to respond to the second letter from Mr. Butler. “28. On September 5, 2002, the Respondent delivered a cashier’s check to Mr. Butler. “29. After Capital City Bank became the trustee of the Trust, on November 13, 2001, the bank distributed the $5,000.00 gifts to each grandchild. The bank, as trustee, reasoned that, if the gifts were retained and distributed according to the terms of the Trust Agreement, the gifts would be greatly diminished by bank charges. The bank decided that Mrs. McCauley would not have wanted her grandchildren’s gifts to be diminished by the bank charges that would have necessarily have been incurred. Thereafter, in April 2002, the bank distributed interest páy-ments to the grandchildren. “30. The bank also established a new trust for the benefit of Mrs. Buford. On November 13, 2001, the bank made an initial distribution to William McCauley, Robert McCauley, and the Betty Buford Trust. “31. On October 9,2002, the bank made a final distribution to the Betty Buford Trust. On November 4, 2002, the bank made a final distribution to Robert McCauley. Finally, on November 22, 2002, the bank made a final distribution to William McCauley and closed the trust.” “CONCLUSIONS OF LAW “1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3 [diligence], KRPC 1.4 [communication], and KRPC 1.15(b) [fees], as detailed below. [Here, a footnote from the hearing panel stated:] In addition to KRPC 1.3, KRPC 1.4, and KRPC 1.15(b), the Deputy Disciplinary Administrator also alleged that the Respondent violated KRPC 1.1, KRPC 1.5, KRPC 1.15(d)(l)(ii), KRPC 8.4(a), and KRPC 8.4(g). The Hearing Panel does not find clear and convincing evidence that the Respondent violated KRPC 1.1, KRPC 1.5, KRPC 1.15(d)(1)(h), KRPC 8.4(a), and KRPC 8.4(g). The Hearing Panel does, however, wish to comment on the Respondent’s billing practice. Throughout the period of time that the Respondent was the trustee, the Respondent billed the Trust for Account Maintenance.’ At the hearing on this matter, the Respondent was unable to satisfactorily explain what he did to earn the fee charged as Account Maintenance.’ The Respondent’s failure to provide a satisfactory explanation does not rise to the level of clear and convincing evidence that the Respondent violated KRPC 1.5. “2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent stipulated that he failed to provide diligent representation to the Trust. Specifically, the Hearing Panel concludes that the Respondent failed to (1) immediately obtain a taxpayer identification number, (2) make initial distributions according to the terms of the Trust Agreement, (3) timely file Trust tax returns, and (4) timely research whether the terms of the Trust Agreement regarding Mrs. Buford amounted to a ‘Special Needs Trust.’ Other than receiving and retaining reports on the Trust’s assets and communicating from time to time with William McCauley, the only thing that the Respondent accomplished for the Trust during the three and one-half years he was trustee was the sale of the real estate. Because the Respondent failed to act with reasonable diligence and promptness, the Hearing Panel concludes that the Respondent violated KRPC 1.3. “3. KRPC 1.4(a) provides that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” In this case, the Respondent violated KRPC 1.4(a) when he failed to keep William McCauley reasonably informed regarding the administration of the Trust. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). [Here, a footnote from the hearing panel stated:] The Formal Complaint alleges that the Respondent violated KRPC 1.4(b). However, the facts alleged in the Formal Complaint (see ¶ 7 of the Formal Complaint) and the facts established at the hearing on this matter support a conclusion that the Respondent violated KRPC 1.4(a). “4. Attorneys must safeguard their clients’ property. Specifically, KRPC 1.15(b) provides: ‘Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entided to receive and, upon request by the client or third person, shall prompdy render a full accounting regarding such property.’ ” The Respondent stipulated that he violated KRPC 1.15(b). Specifically, the Respondent failed to promptly deposit the $5,000.00 into the Trust’s account. The Respondent retained the earnest money in his attorney trust account for approximately sixteen months. Had the Respondent deposited the earnest money in the Trust’s account, the Trust could have earned interest. However, because the Respondent failed to transfer the money to the Trust’s account, the Trust did not earn any interest on the $5,000.00. The Hearing Panel concludes that the Respondent violated KRPC 1.15(b) by failing to transfer the earnest money to the Trust’s account. "RECOMMENDATION “In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to his client to provide diligent representation and adequate communication. Additionally, the Respondent violated his duty to his client to safeguard his client’s property. “Mental State. The Respondent negligently violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused injury to the Trust by failing to transfer the $5,000.00 in earnest money to the Trust’s interest bearing account. Had the Respondent transferred the earnest money to the Trust’s interest bearing account, the Trust would have received interest on the $5,000.00 for sixteen months. Additionally, the Respondent’s failure to distribute the trust assets to the beneficiaries caused potential injury. Had the Respondent distributed the trust assets according to the terms of the beneficiaries, the beneficiaries would have had access to their property much sooner. As a result, the beneficiaries lost their ability to use the property for a period of time. “Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present: “Prior Disciplinary Offenses. On August 8, 2001, in DA7736, the Disciplinary Administrator’s office informally admonished the Respondent for having violated KRPC 1.3 and KRPG 1.4. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1984. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 14 years. Accordingly, the Hearing Panel concludes that the Respondent had ■substantial experience in the practice of law at the time he engaged in the misconduct. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: "Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case. "Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. The Respondent has returned the fees that he received during his tenure as Trustee. (Although the third check was returned for insufficient funds, eventually the Respondent provided a cashier’s check for the final $4,000.00.) “The Present and Past Attitude of the Attorney as Shown by the Respondent's Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct. “Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Lawrence, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel. “Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.- “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client. Standard 4.13.’ ‘Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. Standard 4.43.’ “Based upon the findings of fact, conclusions of law, and the Standards fisted above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports. “Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.” The Respondent files no exceptions to the panel’s final hearing report. The court, having considered the record, the final hearing report of the panel, and arguments before this court, agrees with and adopts the findings, conclusions, and recommendations of the hearing panel. The court further finds that the violations set forth below are supported by clear and convincing evidence and that the evidence supports the panel’s conclusions of law. It Is Therefore Ordered That Scott C. Stockwell be censured in accordance with Supreme Court Rule 203(a)(3) (2003 Kan. Ct. R. Annot. 226) for violations of KRPC 1.3, KRPC 1.4, and KRPC 1.15(b). It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this order be published in the official Kansas Reports.

The opinion of the court was delivered by Gernon, J.: This case involves an appeal by the defendant Jesse R. Murphy s attorney, Douglas Brunson, from the district court’s sanction of ordering Brunson to pay all costs for the trial after declaring a mistrial because Brunson failed to subpoena a witness on Murphy’s behalf. Murphy was charged with introducing contraband into or on the grounds of a correctional institution for allegedly spitting out two small balloons filled with tobacco. When the matter came to trial, Brunson, Murphy’s attorney, assumed that the State would call all of the witnesses it had subpoenaed and did not issue a separate subpoena for a witness who he believed would provide exculpatory evidence for Murphy. However, after the jury was sworn, Brunson learned that the State had decided not to call some of its witnesses. Brunson sought a continuance to allow him to subpoena the witness, but the district court denied the motion. Instead, the district court declared a mistrial based upon Brunson’s self-proclaimed ineffective assistance of counsel and assessed the costs of trial to Brunson as a sanction. Subsequently, the district court issued an order of judgment against Brunson, requiring him to pay $817.91 in costs. Brunson immediately appealed the sanction order without waiting for Murphy s charges to be tried. The Court of Appeals dismissed Brunson s appeal as interlocutory. Thereafter, the State moved to dismiss the charges against Murphy with prejudice, and the district court granted die motion. Following the order of dismissal, Brunson filed a new notice of appeal of die sanction order. We transferred the matter to this court on our own motion pursuant to K.S.A. 20-3018(c). Brunson argues that the district court improperly sanctioned him for causing a mistrial. However, Brunson did not object to the district court’s sanction. In fact, Brunson acceded to the court, as demonstrated by the following comments in the record: “The Court: Let’s put — I’ll grant a mistrial and I will assess the costs of the trial against you, because of your error. “Mr. Brunson: All right. “The Court: That means you’re going to reimburse Pawnee County for the expenses of the trial to date. “Mr. Brunson Thank you. “Mr. Brunson: If the Court would figure out the cost of this trial, I will pay it within two weeks.” Brunson’s claim of error is dismissed on the basis of acquiescence, which cuts off the right to appellate review. The rationale behind the doctrine of acquiescence is Üiat a party should not be allowed to pursue an inconsistent position on appeal. McDaniel v. Jones, 235 Kan. 93, 101-02, 679 P.2d 682 (1984). A party acquiesces in the judgment when he or she voluntarily accepts the benefits or the burdens of the judgment. Varner v. Gulf Ins. Co.., 254 Kan. 492, 494-95, 866 P.2d 1044 (1994). In this case, Brunson voluntarily accepted the trial .court’s order for a mistrial as a benefit to his client because it effectively delayed his client’s trial until the key defense witnesses could be subpoenaed. In addition, his statements to the court indicated that he was willing to accept the sanction and pay the costs. His position before the trial court is inconsistent with his position on appeal. Accordingly, Brunson has waived his right to appellate review by acquiescing in the trial court’s judgment. Appeal dismissed.

In a letter received June 7, 2004, by Carol Green, Clerk of the Appellate Courts, respondent Joel D. McMullen, an attorney admitted to the practice of law in the State of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2003 Kan. Ct. R. Annot. 281). At the time the respondent surrendered his license, a formal complaint had been filed by the Disciplinary Administrator’s office and a hearing on the formal complaint was set on June 15, 2004. Allegations in the formal complaint consisted of lack of candor to a tribunal and conversion of client funds. This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred. It Is Therefore -Ordered that Joel D. McMullen be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Joel D. McMullen from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs therein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286). Dated this 9th day of June, 2004.

The opinion of the court was delivered by Allegrucci, J.: Kansans for the Separation of School and State appeals from the district court’s memorandum decision and order denying its motion to intervene. An order denying an application to intervene is a final appealable order. State ex rel. Stephan v. Kansas Dept. of Revenue, 253 Kan. 412, Syl. ¶ 1, 856 P.2d 151 (1993). The sole issue we must decide is whether the district court abused its discretion in denying appellant’s motion to intervene. On December 18, 2003, appellant filed a motion to intervene in Montoy v. State, Shawnee County District Court Case No. 99-C-1738. In a memorandum decision and order that was filed February 13, 2004, the trial court denied intervention. Appellant filed its notice of appeal on March 1, 2004. Intervention is a matter of judicial discretion. Mohr v. State Bank of Stanley, 244 Kan. 555, 561, 770 P.2d 466 (1989). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). K.S.A. 60-224 (a) provides: “Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” Appellant sought to intervene under subsection (2), claiming an interest relating to the property or transaction that is the subject of the action. The district court denied appellant’s motion to intervene for the following reasons: “The Kansas Supreme Court set forth three factors that must be present to allow intervention: ‘(1) timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor’s interests.’ Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663[, 722 P.2d 1093] (1986). ‘[A] prospective party’s untimely application to intervene in an action is the same as voluntarily declining to intervene. . . .’ Davis v. Prudential Property and Casualty Ins. Co., 961 F. Supp. 1496 (D. Kan. 1997). “Kansans for the Separation of School and State had ample opportunity to file a motion to intervene prior to trial in this matter. This action has been pending for nearly five years. The facts have already been heard and determined in this action. A preliminary interim order was entered by this Court on December 2, 2003. This party did not file their motion to intervene until December 18, 2003. All that remains is to determine a proper remedy. As the motion to intervene is untimely, the Court hereby denies the request. “Additionally, the motion is denied because Kansans for the Separation of School and State improperly state that their members have property interests in the State of Kansas ‘relating to the property or transaction which is the subject of the action.’ To the contrary, there is no property or transaction that is the subject of this matter. This Court’s preliminary order contains no directive that the Legislature raise property taxes statewide. In addition, the Court’s preliminary order does not set forth an amount . . . which the Legislature must provide to adequately fund schools. The Court merely set forth the facts. Until July 1, 2004, it is up to the executive and legislative branches to devise a remedy to these constitutional deficiencies.” Appellant relies on Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P.2d 261 (1966), for the proposition that posttrial intervention is timely. Appellant’s reliance on Moyer is misplaced. Moyer stands for the principle that intervention may be timely even after judgment if the party who represented the intervenor-appli-cant’s interest at trial refuses to appeal, see 197 Kan. 23, Syl. ¶ 3, in which case the intervenor’s interest would no longer be adequately represented by an existing party. In Hukle v. City of Kansas City, 212 Kan. 627, Syl. ¶ 3, 512 P.2d 457 (1973), the court held that “[t]he requirement for ‘timely application’ to intervene in an action as that term is used in K.S.A. . . . 60-224(a) has no application until such time as adequate representation ceases.” In the present case, the district court made no determination about the adequacy of the representation of appellant’s interest. Appellant contends that it is “without adequate representation by the state, which like the governor, politically benefits from losing this action and suddenly, in a single blow accumulating wealth, power and patronage that doubles what it has taken generations to confiscate from Kansans democratically.” Appellant’s argument seems to be that it opposes a tax increase to finance schools but the State of Kansas favors an increase. The legislature’s rejection of all proposals for tax increases to finance schools in its last session, however, demonstrates that appellant’s position is adequately represented by the State. In Hukle, the court stated that the right to intervene under K.S.A. 60-224(a) depends on the concurrence of (1) a timely application, (2) a substantial interest in the subject matter, and (3) a lack of adequate representation of the intervenor’s interests. 212 Kan. at 630-32. Without a showing of inadequate representation, there can be no concurrence of the three factors. Here, although the trial court was silent on the issue, appellant failed to show a lack of adequate representation of its interest in the appeal. Thus, the motion to intervene was not timely. If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision. Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999). Affirmed. Luckert, J., not participating. Christel E. Marquardt, J., assigned.

Per Curiam,-. Baby Roe was bom to parents who lived in a residential mental health treatment facility. Because staff at the facility were concerned about the parents’ ability to care for the baby, the Kansas Department of Social and Rehabilitation Services (SRS) and the Bureau of Indian Affairs (BIA) became involved. Baby Roe subsequently suffered severe and permanent injuries at the hands of his father despite ongoing monitoring of his family situation by SRS. Baby Roe, his adoptive parents, and his conservator sued SRS, the State, and individual case workers in tort. The district court granted summary judgment in favor of the defendants, and the plaintiffs appealed. In a split decision, the Court of Appeals reversed and remanded for trial, ruling that SRS voluntarily and affirmatively undertook a Restatement (Second) of Torts § 324A (1964) duty to monitor delivery of family support services for the care and protection of Baby Roe. This court granted the defendants’ petitions for review. Facts The Court of Appeals stated the facts as follows: “Baby Roe was bom to Terri and Booth Tuthill in Pittsburg on August 6,1992. Medical personnel and employees of the Tuthills’ residential facility had concerns regarding Baby Roe’s parents even before his birth. Specifically, SRS was told by letter that Terri exhibited symptoms of psychosis and depression, that she and Booth abused drugs and alcohol, and that Booth physically abused Terri. “Defendant Mary Keady (Keady), an SRS social worker, was assigned to the matter in June 1992. Keady kept some contemporaneous logs of her efforts regarding tire Tuthills. However, her supervisor, defendant Wayne Sramek, permitted Keady to add to tírese logs after Baby Roe was injured. “Keady attempted to meet with Terri three times before Terri delivered Baby Roe. At the first visit, Terri was very guarded and untrusting and did not want any part [of] SRS’ help.’ On the second and third occasions, Terri apparently refused to answer her door. “The day after Baby Roe’s birth, the Bureau of Indian Affairs (BIA) was notified, pursuant to the Indian Child Welfare Act, because both parents had Native American ancestry. Booth, in particular, was registered by the Quapaw tribe. The hospital launched meetings among nursing staff, psychiatric staff, SRS staff, and BIA staff that day because of its concerns about the Tuthills’ ability to care for Baby Roe. The goal, in Keady’s words, was to ‘insure that [the baby] was safe’ when he was discharged with his mother. According to notes taken by Terri’s obstetrician: ‘A meeting was held with nursing staff, psychiatric staff, SRS staff, and two staff persons from the [BIA], to make arrangements for very close home follow up for mother and baby. It was decided that the [BIA] would handle the home care follow up. Concerns were expressed regarding the welfare of the infant at this meeting. It was felt that the patient was exhibiting fairly good mothering instincts and it was hoped that with close home follow up the infant’s status could be evaluated. All personnel were made aware of the potential problem and close home follow up is planned by Lisa Lucher [sic] of the [BIA].’ "A hospital social worker recorded the following regarding the discharge plan: ‘[BIA’s] Sally [Whitecrow-]011is, Director of Social Services, and Miss Lisa Luther, Child Protection Workerf,] . . . came to the hospital and did interview Terri and Booth and provided assessment for this couple concerning their follow up needs. Both Miss [Whitecrow-]011is and Miss Luther met with [hospital staff], concerning the needs of this couple. It was decided that Lisa would be the contactperson for Terri and Booth and would provide daily supervision of their care of the infant. The couple met with die team and it was noted that Terri [was] quite anxious and overwhelmed by the number of people involved in working with her and request was made drat she relate to one person, and that one person that she had chosen was Lisa Luther from the Indian Social Services Program. Lisa agreed to provide daily supervision and be accessible to Terri and Booth in caring for their son. Plans were for Terri and the infant to remain in the hospital during the weekend to provide further instruction to her in the care of the infant with plans for her and the baby’s discharge on Monday morning, August 10th. Lisa will be at the hospital Monday morning and accompany the couple home from the hospital.’ “Luther testified about one of the meetings with hospital staff as follows: ‘A. [Luther]: I came to work on the morning of August 7th, 1992, and was told by my supervisor that we were going to Pittsburg, and so we went to Pittsburg. ‘Q. [Mr. Tomassi]: Your supervisor was Sally Ollis? ‘A. Right. And we went to Pittsburg and met with — there was a worker there, but I can not [sic] recall whether it was from — I know it says the mental health workers, but I can not [sic] recall whether they — who it was, whether they were from Kansas SRS, or the mental health community, or who they were. ‘Q. Would you remember any name? ‘A. No. ‘Q. Okay. And what was discussed? ‘A. From what I can remember the discussion was between Sally Whitecrow-Ollis and the worker — workers. I believe there were two of them. And the discussion was mainly over jurisdiction, who had jurisdiction on the case. ‘Q. All right. Do you recall what was said? ‘A. Yes. Sally was stating that we had jurisdiction. The workers were trying to immediately pull the child from — or terminate Booth and Terry’s [sic] parental rights, and Sally was stating that they did not — they had no jurisdiction, that we had jurisdiction, you know, because we administered the social services for the Quapaw tribe at the time. And there was some discussion back and forth and it was determined the workers just, I guess, backed off, just said okay, you guys have jurisdiction.’ ‘Whitecrow-Ollis’ memory of these events was that Keady wanted BIA to take ‘complete charge’ of the Tuthill case, but that was not ‘an option.’ According to Whitecrow-Ollis, BIA agreed to provide parenting education to Terri; SRS did not ask BIA to investigate child abuse reports and did not expect it to pursue such investigations. Whitecrow-Ollis testified that she did not think BIA was capable of providing full-time services, and the plan was that BIA workers would visit the Tuthills only ‘once or twice a week and assist in teaching [Terri] whatever it was, trying to keep her calm.’ “Defendants admit that SRS’s role was to monitor the services to be provided to the Tuthills after discharge. According to Keady, this monitoring was to include making sure that BIA was providing services and maintaining contact with the mental health center, i.e., to malee sure these entities were following through with planned visits and assistance. She stated that her understanding was that BIA would visit the Tuthills for several hours at least twice a week. She testified she did not know what services were to be provided by mental health workers. Finally, Keady also testified that her role, if she deemed BIA and mental health services to be inadequate, would require her to consult with Sramek and ‘go from there.’ Sramek testified that, although it would have been general practice and ‘possibly would have been appropriate’ for SRS to prepare a family services plan for the Tuthills, this was never done. Such a plan would have defined precisely what each agency committed to providing for the family. “Upon discharge from the hospital, Terri and Booth took Baby Roe home to the Oak Place Residential Facility for the mentally ill in Pittsburg. Baby Roe had scored 8 and 9 out of 10 on APGAR birth assessments, and he went home in ‘good’ condition. Health care workers at the residential facility also had documented a care plan. They noted that RIA ‘agreed to place a worker in the home 8am-5pm[,] Mon[day] thru Fri[day] to help teach Terri how to take care of the baby.’ They also noted BIA had jurisdiction to determine whether Baby Roe should be placed outside of the family. “Luther conducted at least some of the anticipated home visits to Terri and Baby Roe. She described Terri as lacking ‘basic parenting skills’ and said the same of Booth. Luther did not recall ever meeting with SRS or giving SRS staff written reports about her visits to the Tuthill home. She also did not recall receiving information about Terri or Booth from SRS. She remembered only that Ollis told her Terri was ‘mildly psychotic’ and Booth was ‘mildly retarded.’ Luther soon left her position as a BIA child protection worker. “Community mental health worker Jeanne Brown testified in her deposition that BIA workers never spent full weekdays with Terri and Baby Roe. By August 17, Luther had been replaced by BIA worker Linda Turner Smith, and Smith reported that her initial relationship with Terri on that date was ‘uneasy because there already had been a lapse of services since Luther’s departure. In addition, Whitecrow-Ollis testified that eventually Terri would no longer let Smith into the Tuthill home. Whitecrow-Ollis said she was sure BIA reported this development to SRS as well as mental health workers. Keady testified that she was told as early as August 18 that mental health staff were having trouble getting access to the Tuthill home. This concerned her, she said, because it made monitoring impossible. “On September 24, 1992, Brown documented a conversation with Terri in which Terri stated she was afraid that Booth would hurt Baby Roe by shaking him too hard and that Terri would be unable to stop him. This was reported to SRS child protection services. “On September 25, 1992, Sramek told Keady about Booth’s alleged abuse of Baby Roe. Sramek did not believe the report was ‘valid,’ but instructed Keady to ‘coordinate with [BIA].’ He ‘wanted [BIA workers] to know that [Terri] was making this allegation . . . because [BIA was] one of the primary service providers ... in case they saw any evidence they could report it ... so they could look for evidence, if necessary.’ Sramek nevertheless personally believed that the baby was safe. He said he formed his opinion because of what he understood to be Brown’s belief, although he could not recall whether he or Keady or an SRS child protection worker had talked to Brown about the report. “No one from SRS ever visited personally with the Tuthills to follow up on the Brown abuse report, although Brown had agreed to go with an SRS worker to visit the family. Sramek said no one visited because it was determined that the report was not to be believed. This was not the normal SRS procedure, as this passage from Sramek’s deposition demonstrates: ‘Q. [W]hat would you generally do if you had allegations of a father shaking a two-month old infant, what would you normally do? ‘A. Assign it for investigation. . ‘Q. And did you do that in this case? A. No. ‘Q. And you knew the mother had mental illness? ‘A. Yes. ‘Q. And so you know her allegation could have been true or not true? A. Yes. ‘Q. And you know that the baby could have been in danger just because of the mother’s mental illness, is that right? A. Yes. ‘Q. And you still didn’t assign it for investigation? A. Because the mandated reporter did not believe the abuse was occurring. ‘Q. And if she disagrees with you on that statement, then you’ve made a serious mistake, haven’t you? A. Yes.’ “According to Sramek, Brown was never sent a Notice of Action, which is the form SRS uses to let a mandatory reporter know what was done by the agency in response to an allegation of abuse or neglect. In Sramek’s words, Terri’s allegation about Booth shaking Baby Roe ‘went outside of [SRS’s] normal practice. [The] report was neither screened out nor screened in, but was passed on to Mary Keady.’ Keady said in her deposition that she never investigated personally because it would have been an SRS child protection worker’s responsibility to do so rather than hers. “Keady testified that she did call BIA, but its office was closed. Although she said that she tracked down a BIA secretary at home, apparently she was told that no one but Whitecrow-Ollis or Smith was acquainted with the family’s situation. Whitecrow-Ollis testified she did not recall receiving a telephone call from Keady about the Brown report, and Smith denied ever hearing about the September allegation that Booth had shaken Baby Roe. Keady’s logs reflect that she finally had a conversation with Whitecrow-Ollis on September 30 but not that she discussed whether BIA had investigated or would investigate the abuse allegation. “Keady also testified that she called Brown and discussed Terri’s abuse allegation. Brown recalled no such conversation and said she would not have minimized the report of Booth’s behavior and would not have told SRS that Terri was mentally ill and on medication because it would have been irrelevant. Brown also said she would not have said she did not believe Terri. “On October 7, Keady learned that Brown had contacted SRS again because Terri had left Baby Roe alone. Terri had to be hospitalized in Osawatomie, and Baby Roe was left in the care of his father and a sitter. Keady and Sramek asserted that Brown said she thought Baby Roe’s father was doing a good job, but Brown denied ever telling anyone at SRS that the situation was safe. SRS did nothing to follow up on the report of neglect by Terri or to check on how Baby Roe was faring in the care of his father. “On October 12,1992, Baby Roe was life flighted to Kansas University Medical Center. He was in respiratory distress and had a ‘skull fracture, subarachnoid hematoma (bleeding between skull and brain), and . . . (retinal hemorrhages).’ He had also had seizures and had required mechanical ventilation. “Rooth was convicted of attempted abuse of a child. Terri has since died. Baby Roe is ‘now permanently and profoundly mentally retarded.’ His prognosis suggests that he ‘will never be able to dress himself or to be toilet trained.’ ” Roe v. Kansas Dept. of SRS, 32 Kan. App. 2d 158, 160-66, 80 P.3d 1162 (2003). Baby Roe, his adoptive parents, and his conservator sued SRS, the State, Keady, and Sramek alleging that the defendants breached a legal duty arising pursuant to § 324A of the Restatement (Second) of Torts. The district court granted summary judgment in favor of the defendants, concluding that they owed no legal duty to Baby Roe under § 324A because the plaintiffs had produced no evidence that the defendants undertook to render services to Baby Roe’s parents which they should have recognized as necessary for the protection of Baby Roe. The plaintiffs timely appealed. In a split decision authored by now Justice Beier and joined by Judge Knudson, the Court of Appeals reversed and remanded for trial, holding that on the facts of the case, “SRS voluntarily and affirmatively undertook a Restatement (Second) of Torts § 324A duty to monitor delivery of family support services for the care and protection of the plaintiff child.” 32 Kan. App. 2d 158, Syl. ¶ 12. Judge Malone dissented, stating: “I agree with the district court. I think a fair characterization of SRS’s role in this case is that SRS agreed it would be there for the Tuthills if needed. The Tuthills did accept services from BIA and the county mental health center. The only evidence that SRS rendered services to the Tuthills was Keady’s statement about monitoring the services. In my opinion, the monitoring of services by others does not rise to the level of assuming a § 324A duty and is incidental at best.” 32 Kan. App. 2d at 176-77. Defendant SRS and defendants Keady and Sramek filed separate petitions for review, both of which were granted by this court. In its petition for review, SRS seeks review of four issues: (1) whether SRS owed a legal duty to Baby Roe under § 324A as found by the Court of Appeals; (2) whether the public duty doctrine applies to protect SRS from liability; (3) whether sovereign immunity applies to protect SRS from liability; and (4) whether the exceptions to liability under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., apply to protect SRS from liability. SRS claims that the last three issues were not addressed by the Court of Appeals. Keady and Sramek also argue that the Court of Appeals erred in finding that SRS owed a legal duty under § 324A. Additionally, Keady and Sramek contend that the court erred in reversing the district court’s grant of summary judgment as to them individually when the court found only that SRS and the State of Kansas had a legal duty to the plaintiff. In their response to the defendants’ petitions for review, the plaintiffs, joined by the amicus Kansas Trial Lawyers Association, argue that the Court of Appeals majority was correct; the plaintiffs also seek review of an issue they claim was not decided by the Court of Appeals, i.e., whether the defendants were liable for negligently selecting BIA to provide protective services for Baby Roe. The Court of Appeals declined to consider this issue, finding it was not presented to the district court. 32 Kan. App. 2d at 175. Plaintiffs now claim they did present the issue to the district court, pointing out that the issue was set forth in the pretrial order. While the plaintiffs did raise the issue, their argument goes to whether the defendants were negligent and breached a duty, not whether they owed a duty to Baby Roe. The district court addressed only whether the defendants owed a duty to Baby Roe and found they did not. The rules regarding appellate review of summary judgment are well known: "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). The core issue in this case is whether an SRS case worker’s promise to monitor the delivery of services by BIA and a mental health center constitutes an undertaking sufficient to meet the threshold requirement for imposing liability under § 324A of the Restatement (Second) of Torts. In Kansas, a plaintiff in a negligence action must first prove the existence of a duty owed to him or her by the defendant. The existence of a duty is a question of law, and our review of questions of law is unlimited. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994). Restatement (Second) of Torts § 324A provides: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if “(a) his failure to exercise reasonable care increases the risk of such harm, or “(b) he has undertaken to perform a duty owed by the other to the third person, or “(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” The Court of Appeals found that SRS undertook to monitor or coordinate support services necessary to protect Baby Roe, thus the district court erred in holding that no § 324A duty arose. 32 Kan. App. 2d at 174. The Court of Appeals also found that subsection (b) of § 324A was satisfied because SRS undertook part of a duty owed to Baby Roe by his parents, who were not capable of bearing that responsibility without assistance. 32 Kan. App. 2d at 174. SRS argues that the Court of Appeals’ conclusion is at odds with this court’s decision in P.W., 255 Kan. 827, and subsequent case law limiting SRS’s liability for negligence. In P.W., the parents of children who were abused in a daycare center sued SRS and the Kansas Department of Health and Environment (KDHE) alleging they were negligent in failing to revoke the daycare center’s license and in failing to warn the plaintiffs about reports of abuse. This court found there was no evidence indicating that SRS or KDHE had performed any affirmative acts toward the plaintiffs or entered into any agreement with the plaintiffs, thus there was no duty owed under § 324A. 255 Kan. at 834. Although SRS had investigated reports of abuse at the daycare center, the statutory duty requiring SRS to investigate was “a duty towards the public at large. Under the public duty doctrine, ‘a governmental entity is not liable for torts committed against a person in absence of a special duty owed to the injured party.’ [Citation omitted.]” 255 Kan. at 835. In Beebe v. Fraktman, 22 Kan. App. 2d 493, 921 P.2d 216 (1996), the plaintiffs claimed SRS was negligent in its investigation of child abuse allegations and, as a result, a child was killed by her father. The Court of Appeals ruled that “[t]he mere taking of a report regarding possible child abuse and the assurance to follow up on that report does not constitute an undertaking to render specific services sufficient to create a legal duty on the part of SRS and its employees.” 22 Kan. App. 2d 493, Syl. ¶ 1. The court explained that any promise to follow up was merely a promise to comply with SRS’s statutory duty, a duty which P.W. held was owed only to the public at large. 22 Kan. App. 2d at 496. The court also ruled that the decision whether to open a file for further investigation was a discretionary function, thus SRS was immune from liability under the KTCA. 22 Kan. App. 2d at 496. In Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 931 P.2d 26 (1997), an alleged child abuser sued SRS for negligence and malicious prosecution. The Court of Appeals ruled that SRS owed no duty to the alleged abuser during its investigation of him because any duty was owed to the public at large. 23 Kan. App. 2d at 398. The court found P.W. to be controlling and ruled that SRS had no § 324A duty where there was no evidence that SRS performed any affirmative act to render services for the alleged abuser or entered into any agreement to do so. 23 Kan. App. 2d at 398-99. The court also concluded that conducting an investigation of alleged child abuse is a discretionary function entitled to immunity pursuant to K.S.A. 75-6104(e) of the KTCA. 23 Kan. App. 2d at 402-03. The Court of Appeals revisited the issue of SRS liability for investigating alleged child abusers in Kennedy v. Kansas Dept. of SRS, 26 Kan. App. 2d 98, 981 P.2d 266, rev. denied 267 Kan. 889 (1999). There, die court ruled that an SRS employee’s recommendation that the county attorney file charges against an alleged child abuser did not constitute an “affirmative act” creating a special duty to the alleged abuser. 26 Kan. App. 2d at 102. We agree with SRS’s argument that these cases foreclose a finding of a duty owed specifically to Baby Roe because the duty SRS undertook was part of its public, statutory duty. K.S.A. 38-1524 applies “[w]hen a report . . . indicates that a child may be harmed” and states that SRS “shall make a preliminary inquiry to determine whether the interests of the child require further action be taken. ... If reasonable grounds to believe abuse or neglect exist, immediate steps shall be taken to protect the health and welfare of the abused or neglected child . . . .” The statute provides that a child in need of care petition will be filed only after SRS “determines it is not possible to provide otherwise those services necessary to protect the interests of the child.” This language is sufficiently broad to cover the nature of the actions undertaken in this case. Monitoring the delivery of services by BIA and the mental health center was a step taken to protect the health and welfare of Baby Roe. Furthermore, we find that SRS’s agreement to monitor services was only a limited or incidental undertaking which did not give rise to a § 324A duty. In Estate of Beckner v. Jensen, 29 Kan. App. 2d 129, 24 P.3d 169 (2001), the defendants allowed their son to host a post-prom party in their home. One of the young men who attended the party stayed up most of the night and upon driving home struck and killed a bicyclist. The Court of Appeals ruled that the defendants had not taken affirmative action toward the tort-feasor and any action on their part was so limited that it did not establish a duty under § 324A. 29 Kan. App. 2d at 136. In so ruling, the court discussed another limited undertaking case, McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980 (1991). In McGee, this court held that the defendants had no § 324A duty where they merely agreed to take the tortfeasor to his car, noting that the extent of a Restatement (Second) of Torts § 324A undertaking defines the scope of the duty that arises as a result. 248 Kan. at 442. Although they knew the tortfeasor was intoxicated, the defendants had undertaken no duty to prevent him from driving. 248 Kan. at 442. In this case, SRS undertook to monitor services to be provided by BIA and the county mental health center. An undertaking to monitor services to be provided by another is more limited than an undertaking to provide those services direcdy and certainly was not an undertaking to prevent the abuse of Baby Roe. Therefore, the undertaking was so limited that it did not give rise to a § 324A duty. The same analysis applies to Kready and Sramek acting as employees of SRS. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed. Beier, J., not participating. Larson, S.J., assigned. Luckert, J., dissenting: I disagree with the conclusion of the majority and would find that the Kansas Department of Social and Rehabilitation Services (SRS) voluntarily and affirmatively undertook to monitor the delivery of family support services for the care and protection of Baby Roe and as such owes a duty pursuant to Restatement (Second) of Torts § 324A (1964). None of the cases cited by the majority regarding SRS’s public duty foreclosed the possibility that SRS might be liable if it did undertake an affirmative act toward a plaintiff other than the performance of a statutory duty or discretionary function. See P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994); Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 931 P.2d 26 (1997); Beebe v. Fraktman, 22 Kan. App. 2d 493, 921 P.2d 216 (1996). In fact, in P.W., the court noted that a public duty “may be narrowed into a special duty owed to an individual where the governmental entity has performed some affirmative act that causes injuiy or where it had made a specific promise or representation that under the circumstances creates a justifiable reliance on the part of the person injured.” 255 Kan. at 835. I agree with the Court of Appeals majority which distinguished the above authorities by stressing that the § 324A tort duty “was distinct from SRS’s independent statutory duty to investigate reports of abuse and neglect. Precedent dictates that the statutory duty and any breach of it, no matter how obvious, cannot be relied upon by an abused child. To the extent that SRS deviated from its established policies for handling the late September abuse allegation or the early October neglect report and those deviations constituted a breach of its statutory duty to the public, they are relevant in this case only to the extent that a party charged with the tort duty SRS undertook voluntarily should have acted differently than Keady and Sramek. In short, it is the statutory duty that SRS did not owe to Raby Roe individually. We hold here, on these facts, it did owe him a tort duty. Under § 324A, SRS and its employees had to use reasonable care to monitor service delivery to the Tuthills to protect Baby Roe. SRS voluntarily and affirmatively undertook this obligation. Now, a jury must be permitted to decide the fact issues of whether defendants’ conduct measured up to the § 324A standard and, if not, whether their failure was the proximate cause of Baby Roe’s injuiy.” 32 Kan. App. 2d at 175. In this case, SRS agreed to undertake a specific function which even it admits was not typical. While K.S.A. 38-1524 addresses the delivery of services by SRS, it does not impose a statutory duty for SRS to monitor other service providers who are providing direct services to the child or his or her family. Therefore, we are not dealing with a statutory duty owed to the public. Further, the undertaking was specifically for the benefit of Baby Roe, not children in general. Under such circumstances I would find a duty pursuant to § 324A of the Restatement (Second) of Torts. Further, I dissent from the majority’s conclusion that the undertaking was so limited it did not give rise to a duty. In essence, it appears the majority is making a decision of fact regarding causation; in other words the majority is impliedly stating that the duty to monitor is a different duty than ensuring safety and even good monitoring would not guarantee safety. This disregards the fact that SRS undertook a duty to monitor. Questions of fact exist as to whether SRS breached that duty and whether the breach resulted in harm to Baby Roe. Those questions are not appropriate for summary judgment. Davis and Gernon, JJ.; join in the foregoing dissent.

The opinion of the court was delivered by Nuss, J.: Dale Denney appeals the denial of his motions for correction of an illegal sentence and for DNA testing. Our jurisdiction is under K.S.A. 22-3601(b)(l), maximum sentence of life imprisonment imposed. We hold that the trial court did not err in denying Denneys motion to correct an illegal sentence but that it did err in denying his motion for DNA testing. Therefore, we affirm in part, reverse in part, and remand for further proceedings. FACTS Criminal acts and convictions Case No. 87 CR 944 In 1987, Denney was convicted of rape and aggravated burglaiy. His sentences were of indeterminate length, and his sentence be gin date was January 7, 1988. He was paroled on July 20, 1992, and was on parole at the times of the offenses described below. Case No. 93 CR 1343 Among other things, Denney held a steak knife against the throat of his sister-in-law, P.D., and penetrated her anus with his penis. Because these offenses occurred in October 1992, the new Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 etseq., did not yet apply. See K.S.A. 21-4723. Accordingly, Denney was charged with, and eventually convicted of a Class B felony, aggravated criminal sodomy; a Class D felony, aggravated sexual battery; and a Class E felony, aggravated weapons violation. The sentences for aggravated sexual battery (6-20 years) and aggravated weapons violation (2-10 years) were to run concurrent with each other but consecutive to the aggravated criminal sodomy sentence of 30 years to life. Case No. 93 CR 1268 After beating and choking his former girlfriend, A.L., and placing a belt around her throat, Denney penetrated her anus with his penis. Because these offenses occurred on July 16,1993, the KSGA did apply. See K.S.A. 21-4723. These charges were consolidated for trial with the charges in 93 CR 1343. Denney was convicted in 93 CR 1268 of aggravated criminal sodomy (severity level 2 person felony), aggravated battery (severity level 4 person felony), aggravated sexual battery (severity level 5 person felony), and aggravated weapons violation (severity level 9 nonperson felony). The accompanying sentences were to run consecutively, for a total of 228 months. They were also to run consecutive to the sentences in 93 CR 1343. This court upheld the convictions from both 1993 cases in State v. Denney, 258 Kan. 437, 905 P.2d 657 (1995). Additionally, based upon these additional convictions, Denney’s parole in 87 CR 944 was revoked on April 15, 1994. Motion to correct illegal sentence On February 15, 2001, Denney filed a motion in 87 CR 944 to correct an illegal sentence, i.e., to convert his indeterminate sen tence to a determinate one because he had been on parole when he committed the crimes in 93 CR 1268 and 93 CR 1343. On April 1, 2001, the trial court denied this motion on the basis that he was not eligible for conversion because of the severity level of his crimes. Denney appealed, and the Court of Appeals held that K.S.A. 1993 Supp. 22-3717(f) entitled Denney “to have his prior sentences converted.” State v. Denney, No. 87,755, unpublished opinion filed June 21, 2002, slip op. at 2. On remand, the trial court reduced the sentences in 87 CR 944 from 5 to 20 years to a sentence of 36 months in accordance with K.S.A. 1993 Supp. 22-3717(f)(2). According to a letter from the Kansas Department of Corrections (DOC) to the trial court, since Denney had already served more than 36 months, it considered his sentence to be satisfied in that case. However, DOC considered that Denney was now serving a 36 years to life sentence in 93 CR 1343 and, once paroled from that sentence, he would begin serving the 228 month sentence in 93 CR 1268 in accordance with K.S.A. 2003 Supp. 22-3717(f). DOC believed that the Court of Appeals opinion did not convert the sentence in 93 CR 1343 because Den-ney was not on parole in that case when he committed the offense in 93 CR 1268. On October 3, 2002, Denney filed a motion to correct an illegal sentence with the trial court. He argued that the Court of Appeals’ decision had mandated his sentence to be converted not only in 87 CR 944 but also in 93 CR 1343 and that DOC had failed to convert his indeterminate sentence of 36 years to life in the latter case. He also requested credit for time served in excess of the 36 months in 87 CR 344. The trial court did not appoint counsel for Denney and did not hear oral arguments before denying the motion. Motion for DNA testing On September 12, 2002, Denney filed a pro se motion requesting that DNA testing be performed in 93 CR 1268 and 93 CR 1343 pursuant to K.S.A. 2003 Supp. 21-2512. The trial court denied the motion without appointing counsel and without oral argument, noting that the statute expressly limits testing to those cases in which an offender has been convicted of rape or murder and that Denney had been convicted of neither. ANALYSIS: ISSUE 1: Did the district court err in denying Denney’s motion to correct an illegal sentence? Denney argues that his sentence in 93 CR 1343 — like his sentence in 88 CR 744 — should have been converted to a determinate one. Accordingly, he claims it is an illegal sentence. The State responds that such a conversion is not allowed by statute. The issue of whether a criminal sentence is illegal is a question of law. Our review of questions of law is unlimited. State v. Harper, 275 Kan. 888, 889, 69 P.3d. 1105 (2003). As K.S.A. 22-3504(1) states: “The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.” Criminal statutes and penalties in effect at the time of a criminal offense are controlling. State v. Mayberry, 248 Kan. 369, Syl. ¶ 15, 807 P.2d 86 (1991). The statute which governs the issue of sentence conversion in the instant case is K.S.A. 1993 Supp. 22-3717(f). That statute, which was substantially amended in 1994, provided at subsection (f): “If an inmate is sentenced to prison for a crime committed after July 1, 1993, while on parole or conditional release for a crime committed prior to July 1,1993, tire old sentence shall be converted into a determinate sentence and will run consecutive to the new sentence as follows: (1) Twelve months for class C, D or E felonies or the conditional release date whichever is shorter; (2) 36 months for class A or B felonies or the conditional release date whichever is shorter.” Denney was on parole in 87 CR 944 when he committed the crimes in 93 CR 1268 and 93 CR 1343. The statute requires that the old sentence, in 87 CR 944, be converted from an indeterminate sentence to a determinate one. While the crimes charged in 93 CR 1343 were indisputably committed prior to July 1, 1993 (in October 1992), Denney was not on parole or conditional release in that case when he committed the crimes in 93 CR 1268 (July 16, 1993). Therefore, K.S.A. 1993 Supp. 22-3717(f) does not provide for the sentence in 93 CR 1343 to be converted to a determinate one. Moreover, K.S.A. 22-3504 does not automatically require a full hearing upon the filing of a motion to correct an illegal sentence. As we stated in State v. Mebane, 278 Kan. 131, 138, 91 P.3d 1175 (2004). “Rather, when a defendant files such a motion, the district court has a duty to make a preliminary examination of the motion to determine if substantial issues of law or fact are raised. If there are none, the court may summarily dismiss the motion. Only if the court finds that the motion raises substantial issues of law or fact must the court then hold a hearing in the presence of the defendant with defense counsel. State v. Duke, 263 Kan. at 196.” Since the language in K.S.A. 1993 Supp. 22-3717(f) regarding conversion is clear, there were no substantial issues of law or fact raised by Denney’s argument. Accordingly, the trial court was correct in summarily dismissing his motion. Denney next contends that the trial court erred in refusing to apply his jail time credit earned in 87 CR 944 to his sentences in 93 CR 1343 and 93 CR 1268. He calculates this credit to be 6 years, 3 months, and 8 days. The DOC’s Inmate Data Summary for Denney states: “9/20/02 Sent, reviewed and recertified. The inmates [sic] sentence begins date on the 36-life was computed from court orders. The old indeterminate is considered to be satisfied per Mandate. Since old sentence is not aggragated [sic] with the new sentence (being satisfied) there is no Prior Penal Credit.” Denney relies on Payton v. State, 22 Kan. App. 2d 843, 923 P.2d 1059 (1996), to support his argument. Payton, while on parole for an aggravated battery committed in 1991, committed robbery and possessed narcotics after July 1, 1993. Pursuant to K.S.A. 1993 Supp. 22-3717(f), he had his old indeterminate sentence converted to 12 months, which was to run consecutive to his new sentence. As the court stated: “This gave Payton a new sentence of 69 months’ incarceration [57 (new) + 12 (original then converted)].” 22 Kan. App. 2d at 844. Payton argued in a motion under K.S.A. 60-1507 that he should receive 3 years’ jail time credit against the converted 12-month sentence, which effectively meant his sentence had been fully served. The trial court, however, held that only the unused portion of the sentence had been converted, and Payton still owed the 12 months. The Court of Appeals reversed, stating that inmates whose sentences are converted “are not required to serve the KSGA sentence in addition to the time already served, but are released if the jail time credit already exceeds the inmate’s KSGA converted sentence.” 22 Kan App. 2d at 847. Accordingly, “Payton is entitled to conversion of his entire indeterminate sentence, and given his time served, he has completed his sentence for the crimes committed in 1991.” 22 Kan. App. 2d at 847. Payton is of no assistance to Denney, however. The Court of Appeals expressly noted: “This decision, of course, does not affect the 57-month sentence imposed for the robbery and possession of narcotics convictions.” 22 Kan. App. 2d at 848. Campbell v. State, 223 Kan. 528, Syl. ¶ 2, 575 P.2d 524 (1978), is more blunt: “A defendant is not entitled to credit on a sentence for time which he has spent in jail upon other, distinct, and wholly unrelated charges.” See also State v. Calderon, 233 Kan. 87, 97, 661 P.2d 781 (1983) (“The provisions of K.S.A. 21-4614 are mandatory and require that a criminal defendant sentenced to incarceration be given credit for all time spent in custody solely on the charge for which he is being sentenced.”). Denney’s indeterminate sentence was converted to a determinate one of 36 months in 87 CR 944. Because Denney had already served more than 36 months on that sentence, he had nothing left to serve on it. His jail time credit from that sentence, however, does not apply to sentences for other crimes in his other cases, 93 CR 1343 and 93 CR 1268. Clearly, no hearing with Denney and an appointed counsel present was needed to make this determination. Issue 2: Did the district court err in denying Denney’s motion for DNA testingP Denney next argues that K.S.A. 2003 Supp. 21-2512 should be liberally construed to include DNA testing for those convicted of aggravated criminal sodomy. If the statute is not so construed, he argues it violates the Equal Protection Clause of the 14th Amendment to the United States Constitution. Essentially, he claims that the legislature’s DNA testing distinctions between (1) those who are convicted of rape and (2) those who are convicted of aggravated criminal sodomy, can have no rational basis. The State responds that the statute clearly applies only to convictions of murder and rape. In the alternative, it suggests that costs saved by untaken tests can be the rational basis for upholding the statute’s constitutionality. The interpretation of a statute is a question of law, and this court’s review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). The statute at issue, K.S.A. 2003 Supp. 21-2512, states: “(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined by KS.A. 21-3401, and amendments thereto, or for rape as defined by K S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deox-yribonucleic acid testing) of any biological material that: (1) Is related to the investigation or prosecution that resulted in the conviction; (2) is in the actual or constructive possession of the state; and (3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results. “(b) (1) The court shall notify the prosecuting attorney of a petition made under subsection (a) and shall afford the prosecuting attorney an opportunity to respond. (2) Upon receiving notice of a petition made under subsection (a), the prosecuting attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section. “(c) The court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced. “(d) The cost of DNA testing ordered under subsection (c) shall be borne by the state or the petitioner, as the court may order in the interests of justice, if it is shown that the petitioner is not indigent and possesses the means to pay. “(e) The court may at any time appoint counsel for an indigent applicant under this section. “(f) (1) If the results of DNA testing conducted under this section are unfavorable to the petitioner, the court: (A) Shall dismiss the petition; and (B) in the case of a petitioner who is not indigent, may assess the petitioner for the cost of such testing. (2) If the results of DNA testing conducted under this section are favorable to the petitioner, the court shall: (A) order a hearing, notwithstanding any provision of law that would bar such a hearing; and (B) enter any order that serves the interests of justice, including, but not limited to, an order: (i) Vacating and setting aside the judgment; (ii) discharging the petitioner if the petitioner is in custody; (iii) resentencing the petitioner; or (iv) granting a new trial. (3) If die results of DNA testing conducted under this section are inconclusive, die court may order a hearing to determine whether there is a substantial question of innocence. If the petitioner proves by a preponderance of the evidence that diere is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2). “(g) Nodiing in tiiis section shall be construed to limit die circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.” (Emphasis added.) The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. State v. Van Hoet, 277 Kan. 815, 826, 89 P.3d 606 (2004). The statute is unambiguous. It clearly provides in subsection (a) that it applies only to convictions for murder as defined by K.S.A. 21-3401 (first-degree murder) and for rape as defined by K.S.A. 21-3502. The trial court correctly denied the motion on this basis. We turn next to Denney’s alternative argument, i.e., that the statute violates the Equal Protection Clause because there is no rational basis for authorizing DNA testing for those convicted of rape, and for not authorizing DNA testing for those convicted of aggravated criminal sodomy. This argument of unconstitutionality was not raised at the trial court level in Denney s pro se motion but appeared in his counsel’s brief to this court. Generally, where constitutional grounds are asserted for the first time on appeal, they are not properly before this court for review. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). We address it now, however, under an exception set forth in State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998), specifically, that the newly asserted theory involves only a question of law arising on proven or admitted facts and is finally determinative of the case. In Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 197-98, 62 P.3d 236 (2003), we recently set forth a number of considerations when examining equal protection issues: “As the party asserting a statute’s unconstitutionality, claimant’s burden is a weighty one.’ [Citation omitted.] ‘This is just as it should be, for tire enacted statute is adopted through the legislative process ultimately expressing the will of the electorate in a democratic society.’ [Citation omitted.] Consequently, while the determination of whether a statute violates tire Constitution is a question of law over which we have unlimited de novo review, we have often held: “ ‘ “A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the Constitution before it may be struck down. [Citations omitted.] ‘This court not only has the authority, but also tire duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.’ [Citations omitted.]” “We affirm that the concept of equal protection of the law is one which ‘ “emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” ’ [Citation omitted.] However, under the rational basis test, ‘a law is constitutional, despite some unequal classification of citizens, if the “classification bears some reasonable relationship to a valid legislative objective.” ’ [Citations omitted.] “For a statute to pass constitutional muster under the rational basis standard, it therefore must meet a two-part test: (1) It must implicate legitimate goals, and (2) the means chosen by tire legislature must bear a rational relationship to those goals. [Citations omitted.] We have previously described it as ‘a very lenient standard’ because, among other things, “ ‘[t]he ‘reasonable basis test’ is violated only if tire statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective. The state legislature is presumed to have acted within its constitutional power even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ ” [Citation omitted.] “Accordingly, ‘[a] [party] asserting the unconstitutionality of a statute under the rational basis standard has the burden to negate every conceivable basis which might support the classification.’ Peden v. Kansas Dept. of Revenue, 261 Kan. 239, Syl. ¶ 6, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229 (1997).” To see if K.S.A. 2003 Supp. 21-2512 passes constitutional muster when it provides for DNA testing for rape, while it excludes such testing for aggravated criminal sodomy, we must first examine the two crimes to determine if, under the facts of the instant case, they are “arguably indistinguishable.” K.S.A. 2003 Supp. 21-3502 addresses rape. It states: “(a) Rape is: (1) Sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances: (A) When the victim is overcome by force or fear; (B) when the victim is unconscious or physically powerless; or (C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender; (2) sexual intercourse with a child who is under 14 years of age; (3) sexual intercourse with a victim when the victim’s consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a medically or therapeutically necessary procedure; or (4) sexual intercourse with a victim when the victim’s consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a legally required procedure within the scope of the offender’s authority. “(b) It shall be a defense to a prosecution of rape under subsection (a)(2 that the child was married to the accused at the time of the offense. “(c) Rape as described in subsection (a)(1) or (2) is a severity level 1, person felony. Rape as described in subsection (a)(3) or (4) is a severity level 2, person felony.” (Emphasis added.) K.S.A. 21-3506 defines aggravated criminal sodomy and contains a number of similarities to the definition of rape in K.S.A. 2003 Supp. 21-3502. It states: “(a) Aggravated criminal sodomy is: (3) sodomy with a person who does not consent to the sodomy or causing a person, without the person’s consent, to engage in sodomy with any person or an animal, under any of the following circumstances: (A) When the victim is overcome by force or fear; (B) when the victim is unconscious or physically powerless; or (C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender. “(b) It shall be a defense to a prosecution of aggravated criminal sodomy under subsection (a)(1) that the child was married to the accused at the time of the offense. “(c) Aggravated criminal sodomy is a severity level 2, person felony.” , Central to this analysis are the terms “sexual intercourse” from K.S.A. 2003 Supp. 21-3502 and “sodomy” from K.S.A. 21-3506. They are defined in K.S.A. 21-3501: “ ‘Sexual intercourse’ moans any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse. ‘Sexual intercourse’ does not include penetration of the female sex organ by a finger or object in the course of the performance of: (a) Generally recognized health care practices; or (b) a body cavity search conducted in accordance with K.S.A. 22-2520 through 22-2524, and amendments thereto.” (Emphasis added.) K.S.A. 21-3501(1). “ ‘Sodomy’ means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal. ‘Sodomy’ does not include penetration of the anal opening by a finger or object in the course of the performance of: (a) Generally recognized health care practices; or (b) a body cavity search conducted in accordance with K.S.A. 22-2520 through 22-2524, and amendments thereto.” (Emphasis added.) K.S.A. 21-3501(2). In short, rape can consist of something less than voluntary consent to penetration of the female sex organ by the male sex organ, while aggravated criminal sodomy can consist of something less than voluntary consent to penetration of another female bodily orifice by the male sex organ. Here, Denney clearly committed the latter: penetrating his victims’ anuses with his male sex organ. Accordingly, we hold that Denney, convicted of aggravated criminal sodomy under such circumstances, is arguably indistinguishable from those people who are convicted of rape with the male sex organ. With that threshold question resolved, we now turn to whether (1) K.S.A. 2003 Supp. 21-2512 implicates legitimate goals and (2) the means chosen by the legislature bear a rational relationship to those goals. See Mudd, 275 Kan. at 198. There can be no doubt that the statutory goal is legitimate: to use DNA testing to help determine if one who is in state custody “was wrongfully convicted or sentenced” and if so, to vacate and set aside the judgment, discharge the person if in custody, resentence, or grant a new trial. See K.S.A. 2003 Supp. 21-2512(c) and (f)(2). Turning to the second issue, while Denney argues there is no rational relationship between the legislature’s goal and its means, the State suggested one rational basis at oral arguments. It argued that limiting die testing — to those convicted of first-degree murder and rape — was cost related. We reject this as a rational basis. We have previously held that cutting costs to an industry is not a rational basis for discrimination. Stephenson v. Sugar Creek Packing, 250 Kan. 768, 780-82, 830 P.2d 41 (1992). See also Aves v. Shah, 258 Kan. 506, 526-27, 906 P.2d 642 (1995) (Cutting costs, by itself, is not a legitimate State interest, and the rational basis test is not met.). Nevertheless, our search for a rational basis is not concluded. See Mudd, 275 Kan. at 198 (“ ‘ “Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may he conceived to justify it.” ’ ” [Emphasis added.]). Our own research suggests, for example, that the legislature may have intended to allow postconviction DNA testing based on the severity of the crime. Before examining this possibility, some background is required. In the spring of 2001, the legislature considered S.B. 263, which was designed to expand K.S.A. 21-2511. The bill proposed obtaining DNA samples from all convicted felons, not just sex offenders, for inclusion in the State’s DNA database. See Maass, 275 Kan. at 329. The bill sponsor, Senator David Adkins, testified before the Senate and House Judiciary Committees that the expansion could not only help solve and prevent crimes, but could also exonerate more innocent people than the current law. Jane Nohr, an assistant attorney general assigned to the Kansas Bureau of Investigation (KBI), testified before the Senate Judiciary Committee, and Kyle Smith, also an assistant attorney general assigned to the KBI, repeated Nohr’s presentation before the House Judiciary Committee. On behalf of the KBI, they requested that two amendments be added to S.B. 263, the first of which is relevant to our discussion. They stated: “We would like to take this opportunity to bring up two possible amendments. First, as set out in Attachment A, Director Welch believes that the powerful tool of forensic DNA should be used to seek justice. That includes freeing the innocent as well as convicting the guilty. There has been considerable media coverage on a few cases around the country where persons were wrongfully convicted of offenses before DNA technology was available and the evolution of that technology has resulted in their freedom. While those of you involved in the appropriations process realize how limited our resources are in the laboratory, we would, like to recommend the adoption of the amendment described in Attachment A, which will provide for a mechanism that persons convicted for the most serious offenses, i.e., murder and rape, could petition the court for post-conviction analysis to be conducted by the KBI. If the defendant is indigent, the state of Kansas would bear the cost of the analysis. We believe that every safeguard is currently employed to assure the validity of the conviction, [but] that if we have the wrong person in prison, we believe it is incumbent on all of us to take what steps we can to assure that justice is done.” Minutes, Sen. Judiciary Comm., February 28, 2001, Attach. 6; Minutes, House Judiciary Comm., March 19, 2001. (Emphasis added.) The legislature passed Senator Adkins’ amendment to K.S.A. 21-2511, extending its reach to include DNA sampling of all those convicted of person felonies. It also passed the KBI’s recommendation in the form of K.S.A. 2003 Supp. 21-2512, except it eliminated second-degree murder (K.S.A. 2003 Supp. 21-3402) from the KBI’s proposal. Both then became law. As we examine the proposed rational basis of crime severity, we observe that aggravated criminal sodomy is, in all cases, a severity level 2 person felony. See K.S.A. 21-3506(c). By contrast, rape by force or fear is a severity level 1 person felony. See K.S.A. 2003 Supp. 21-3502(c). While these differences in severity level could be a rational basis for distinguishing between when DNA testing is allowed and when not, we also observe that aggravated criminal sodomy has the same severity level, 2, as rape when consent was obtained by “knowing misrepresentation.” See K.S.A. 2003 Supp. 21-3502(a)(3) and (4). Crimes within each severity level are considered relatively equal in severity. K.S.A. 21-4707(a). However, DNA testing is allowed by statute for convictions of rape but not aggravated criminal sodomy. Accordingly, we cannot conclude that crime severity level is a rational basis for the different treatment of these arguably indistinguishable groups: (1) those convicted of penetration of the female sex organ by the male sex organ when consent was obtained through knowing misrepresentation and (2) those convicted of penetration of the female anus by the male sex organ through force or fear. Both groups concern something less than voluntary consent, by the female, to penetration of one of her orifices by the male sex organ. Nor have we been presented with, nor have we found, any rational basis for allowing DNA testing for the rapists and not for Denney, who was convicted of aggravated criminal sodomy for penetrating his victims’ anuses with his penis. In short, K.S.A. 2003 Supp. 21-2512 is unconstitutional because it fails to include Den-ney’s specific situation. The question of remedy for this underinclusion remains. As explained in Califano v. Westcott, 443 U.S. 76, 89, 61 L. Ed. 2d 382, 99 S. Ct. 2655 (1979): “ “Where a statute is defective because of underinclusion’, Mr. Justice Harlan noted, ‘there exist two remedial alternatives: a court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.’ Welsh v. United States, 398 U.S. 333, 361 (1970) (concurring in result).” As a Note in the Harvard Law Review has explained: “Though the test is imprecise, a court must weigh the general interest in retaining the statute, against the court’s own reluctance to extend legislation to those not previously covered. Such an inquiry may lead a court into examination of legislative purpose, the overall statutory scheme, statutory arrangements in connected fields, and the needs of the public.” Note, Developments in the Law — Equal Protection, 82 Harv. L. Rev. 1065, 1136-37 (1969). Stated another way, “[the court] must look at the importance of the statute, the significance of the exemption within the over-all statutory scheme, and the effects of striking down the statute.” People v. Liberta, 64 N.Y.2d 152, 171, 474 N.E.2d 567 (1984). In sum, the “court’s task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to underinclusiveness.” 64 N.Y.2d at 171. We find the equal protection cases of Westcott and Liberia instructive in choosing between these two remedial alternatives. In Westcott, the United States Supreme Court addressed § 407 of the Social Security Act, as amended, 42 U.S.C. § 607 (1976), part of the Aid to Families with Dependent Children program. The statute provided benefits to families whose dependent children have been deprived of parental support because of the unemployment of the father but did not provide such benefits when the mother became unemployed. The federal district court found that the gender qualification of § 407 was not substantially related to the achievement of any important governmental interests. As a remedy, instead of invalidating the entire statute, it chose to extend the program to all families with needy children where either parent was unemployed. On appeal, the Secretary of the Department of Health, Education and Welfare challenged the holding of the unconstitutionality of § 407. Among other things, the Secretary argued the gender distinction imposed by § 407 survived constitutional scrutiny because it was substantially related to achievement of one or more important governmental objectives. It identified two important objectives. First, in general, the statute was intended to provide aid for children deprived of basic sustenance because of a parent’s unemployment. Second, and more specifically, reducing die incentive for the father to desert the family was an important objective of the program, and the gender qualification was substantially related to achieving that objective. While the Court readily agreed with the Secretary’s first contention, it rejected the second. It found that the gender qualification had little, if anything, to do with reducing the father’s incentive to desert; it also found that even if the actual purpose of the gender qualification was to deal with the problem of desertion, it did not appear that the classification was substantially related to the achievement of that goal. Accordingly, it concluded that the gender classification of § 407 was not substantially related to the attainment of any important and valid statutory goals and was, therefore, unconstitutional. 443 U.S. at 85-89. The Westcott Court then turned to the remedy. It observed that “[i]n previous cases involving equal protection challenges to un-derinclusive federal benefits statutes, this Court has suggested that extension, rather than nullification, is the proper course.” 443 U.S. at 89. The Supreme Court further observed that an injunction suspending the program’s operation, e.g., nullification, would impose hardship on 300,000 beneficiaries whom Congress plainly meant to protect. 443 U.S. at 90. Indeed, there was no dispute between the parties regarding the merits of extension of the statute versus its invalidation. Westcott is instructive because, like the instant case, it concerns issues of underinclusion of “benefits” (there, financial aid to children; here, DNA testing). However, it concerned gender discrimination, which warranted a higher level of scrutiny than rational basis. People v. Liberta, 64 N.Y.2d 152, also concerned issues of un-derinclusion. It is primarily instructive because, like the instant case, it included application of the rational basis test. There, New York’s highest court, its Court of Appeals, addressed § 130.35 and § 130.50 of its Penal Law concerning forcible rape and forcible sodomy, respectively. Due to “not married” language in the statutes, there was a “marital exemption” for both crimes, i.e., a married man ordinarily could not be convicted of forcibly raping or sodomizing his wife. Liberta argued to the lower courts that both statutes violated equal protection because they were un-derinclusive classifications which burdened him but not others similarly situated (burdened all males except those within the marital exemption). He argued drat the rape statute further violated equal protection because it provided that only males could be convicted of rape in the first degree. The lower courts rejected Liberta’s constitutional arguments. The Court of Appeals affirmed the conviction but rejected the constitutional analysis of the lower courts. It joined the overwhelming majority of courts to hold there was no rational basis for distinguishing between marital rape and nonmarital rape and declared the marital exemption for rape in the statute to be unconstitutional. 64 N.Y.2d at 163-64, 167. It also held that the rape statute’s ex-ination not did meet the intermediate level of scrutiny: it was not substantially related to the achievement of an important governmental objective. 64 N.Y.2d at 167-70. Having found that the statutes for rape and sodomy in the first degree were unconstitutionally underinclusive, the court addressed the issue of remedy. It observed: “When a statute is constitutionally defective because of underinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly excluded.” 64 N.Y.2d at 170. As the court explained: “The question then is whether the Legislature would prefer [1] to have statutes which cover forcible rape and sodomy, with no exemption for married men who rape or sodomize their wives and no exception made for females who rape males, or [2] instead to have no statutes proscribing forcible rape and sodomy.” 64 N.Y.2d at 171. The court concluded that the marital and gender exemptions must be read out of the statutes prohibiting forcible rape and sodomy. Among other things, it held that the legislature, if faced with the choice, would probably extend the prohibition of rape to married persons, rather than abolish the crime altogether, and thus chose to leave intact that portion of the statute under which the defendant was convicted. 64 N.Y.2d at 170-73. The court acknowledged that this action enlarged the scope of the two criminal statutes, but observed that other states in numerous cases had applied the “same principles in eliminating an unconstitutional exception from a criminal statute and thereby enlarging the scope of the statute.” 64 N.Y.2d at 172 (see cases cited there). To paraphrase the Liberta court, the question before us is whether the Kansas Legislature would prefer to have statutes which cover DNA testing for those convicted of aggravated crim inal sodomy like Denney, or instead to have no statutes providing for postconviction DNA testing. To help answer this question, we first consider the legislative purpose. See Note, 82 Harv. L. Rev. at 1137. If we declare K.S.A. 2003 Supp. 21-2512 a nullity, then the laudable purpose of the statute expressed by its author, the Director of the Kansas Bureau of Investigation, is lost: to seek justice by freeing the innocent through postconviction DNA testing. We next consider the public’s needs. See Note, 82 Harv. L. Rev. at 1137. In that regard, we also agree with the KBI Director: “[I]f we have the wrong person in prison, we believe it is incumbent on all of us to take what steps we can to assure that justice is done.” As an additional consideration, we also examine the overall statutory scheme. See Note, 82 Harv. L. Rev. at 1137. Toward that end, we note that exoneration of the innocent is not only the purpose of K.S.A. 2003 Supp. 21-2512, but also that this purpose is one of several found in K.S.A. 2003 Supp. 21-2511. In his presentation to the Senate and House Judiciary Committees, Senator Adkins, the sponsor of S.B. 263 to extend K.S.A. 21-2511, stated that simply increasing the inmate DNA database from sex offenders to all those convicted of person felonies “would reduce the occurrence of innocent people who are wrongly suspected, arrested, and convicted of crimes they did not commit.” Minutes, Sen. Judiciary Comm., February 28, 2001, Attach. 5. He explained that these results could occur by having comparing DNA samples from both the guilty party and the innocent party (whose profiles were already in the database due to previous convictions) and matching them against DNA evidence from the crime scene. In short, Kansas’ obvious commitment to exoneration of the innocent through DNA — both sampling and later testing — would be severely reduced if we nullify K.S.A. 2003 Supp. 21-2512. On the other hand, if we extend the statute’s coverage to include situations such as Denney’s, we have increased the chances of freeing the innocent. Our choice is clear: K.S.A. 2003 Supp. 21-2512 should not be nullified but rather extended to include testing for conduct like Denney’s. The decision of the trial court is affirmed in part, reversed in part, and remanded to that court for further determination of whether Denney meets the remaining qualifications for DNA testing under the statute. McFarland, C.J., concurring in the result.

Per Curiam: This litigation arises from the failure of the underground thermal piping system for heating and cooling at the El Dorado Correction Facility (EDCF). The State sued various entities believed responsible for the defective construction, including George M. Myers, Inc., d/b/a GMM, Inc. (GMM), Professional Mechanical Contractors, Inc. (PMC), Dean E. Norris, Inc. (DEN), and American Thermal Products, Inc. (ATP). The district court entered final orders which fixed the amount of the State’s potential recovery against GMM and its surety, Reliance Insurance Company (Reliance), and dismissed the State’s third-party beneficiary claims against PMC, DEN, and ATP. The State’s applications for interlocutory appeal and notices of appeal were timely filed, and the appeal was granted. The appeal is before this court pursuant to a K.S.A. 20-3018(c) transfer. We filed our original opinion in this case on June 18, 2004 (State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 3, 91 P.3d 531). On July 8, 2004, the State filed a timely motion to clarify or modify that opinion. We grant the motion to modify, order the original opinion withdrawn from publication, and file this modified opinion. Two issues are raised on appeal: 1. Did the district court err in fixing the amount .of the State’s potential recovery of damages? Our answer is, “Yes.” 2. Did the district court err in dismissing the State’s third-party beneficiary claims? Our answer is, “No.” We affirm in part, reverse in part, and remand for further proceedings. The Underlying Circumstances and Proceedings In 1989, under federal court order, the State undertook construction of a 1,000-bed maximum security prison in El Dorado, Kansas. The State employed a multi-bid prime contracting scheme under which several contractors contracted directly with the State for various phases of the project. The State employed Booker & Associates (Booker) as construction manager to coordinate the activities of the various prime contractors. The $50 million project was completed in 1992. GMM constructed the prison’s site utilities pursuant to a $6.5 million lump sum contract with the State. For contract billing purposes, GMM allocated approximately $1.097 million of its contract to the cost of the 3,900-foot long underground thermal piping system. The State has stipulated, for purposes of the summary judgment motions giving rise to this appeal, that the State’s cost for the original underground thermal piping system was $1.097 million. The underground thermal system pipes transport chilled water and steam at temperatures in excess of300°F from the central plant to all the buildings in the facility. The contract required GMM to insulate the system for the underground pipes to meet performance criteria set out in the contract. Generally, the insulation system was to insulate the pipes to approximately 100°F where the system interfaces with the soil and to protect the pipe exteriors from corrosive moisture. Different types of underground thermal piping systems for heating and cooling fall into several broad categories: (1) walk-through utility tunnels; (2) shallow concrete trenches; (3) direct-bury prein-sulated piping; and (4) direct-bury piping with a poured-in-place insulation envelope. Walk-through tunnel systems cost the most initially but have the lowest lifetime costs due to ease of access, maintenance, and correction of maintenance errors. Shallow concrete trenches are usually the next most expensive system, followed by direct-bury preinsulated piping, and then direct-bury piping with poured-in-place insulation. The State’s design team initially recommended a walk-through tunnel system but rejected the idea due to cost and security concerns. It found that the direct-bury pipe with poured-in-place insulation was the lowest cost alternative. The project mechanical engineer, Professional Engineering Consultants, P.A. (PEC), warned the State that “[although the poured-in-place insulation system appears to offer considerable first savings, our firm has no past experience with this method and has some skepticism regarding the long term insulating value of the material.” PEC therefore recommended that the State solicit construction bids setting forth prices for not only poured-in-place insulation but also the preinsulated piping alternative. GMM subcontracted with Professional Mechanical Contractors, Inc. (PMC) for the installation of the underground thermal system to meet the performance criteria specified by the State. PMC in turn entered into a contract with American Thermal Products, Inc. (ATP) for the design of a preengineered insulation system to meet the performance criteria for the underground thermal system. There were no direct contracts between the State and the subcontractors. During the design process, the State’s representatives met with representatives of ATP and its sales representative, R.B. Summers Associates, Inc. (Summers), concerning ATP’s insulation product, Gilsulate 500xr. The State later chose the poured-in-place insulation alternative. In its first amended petition, the State alleged that it approved the use of Gilsulate 500xr as the poured-in-place insulation around all the underground thermal piping based on the representations of ATP and Summers. ATP’s president stated that such a system, if properly installed, was a “zero maintenance” system. The State contends that ATP provided a preengineered insulation system that included, in addition to the Gilsulate 500xr insulation, the design for the pipe guides, pipe anchors, pipe expansion loops, insulation thickness details and calculations, and heat transfer calculations. PMC eventually installed ATP’s system by placing the pipe and ancillary features into an open earthen trench, encasing the pipes in a formed envelope of dry-powdered Gilsulate 500xr insulation, then backfilling the trench with sand and soil. The district court and the parties referred to this as an “earthen trench” system. The site utilities package work awarded to GMM under its contract with the State was substantially completed in May 1991. The EDCF staff soon began reporting problems with the steam condensate return system, which appeared to be the result of malfunctioning steam traps throughout the thermal piping system. By the end of 1991 there were indications that high heat was escaping from various areas of the underground thermal system. The first symptoms were dead grass and melted snow above the steam pipes in an area outside the prison fence. The State notified GMM of the problems within 1 year of completion but claims that GMM did not return to the site to investigate further during the warranty period. Excavations identified construction defects by PMC, and an infrared survey revealed hot spots. Excavators noted wet insulation, improperly installed pipe support anchors, wood blocks being used as pipe supports, lack of flashing above pipe penetrations in the manholes, and inadequate insulation coverage. The State also attributed damage to other underground lines situated near the underground steam pipes — including fire alarm, fiber optic telephone, energy management, electric, and water lines — to the failure of the earthen trench system. In approximately October 1999, the State abandoned this earthen trench system and installed a concrete shallow trench system. On November 26,1997, the State filed suit against Gossen, Livingston & Associates (Gossen), the project architect; PEC, the mechanical engineering consultant; Booker, the construction manager; GMM, the contractor for the underground thermal system and its surety, Reliance; PMC, GMM’s installation subcontractor; DEN, alleged by the State to be the parent company of PMC; and ATP, the subcontractor to PMC. The State alleged that a combination of product defects and design and installation errors caused a failure of the system over time. Under the State’s theory, it alleged that (1) GMM, PMC, and ATP breached their contracts by failing to provide materials and work in compliance with the contract documents, (2) the Gilsulate 500xr system was not reasonably suited for the use to which it was applied at the prison, and (3) the most reasonable solution was to abandon the earthen trench system and replace it with a concrete trench system, which was done at a lower cost than repairing or replacing it with another earthen trench system. DEN filed a motion for summary judgment in September 1999, contending that it had not entered a contract involving Bid Package 3A, had performed no work at the prison, and, as a matter of law, should not be made a party to the lawsuit. On February 10, 2000, PEC filed a motion in limine to determine the measure of damages. Defendants GMM, ATP, and PMC joined the motion, arguing that the concrete trench system was a “trade-up” to a better system than the earthen trench system. Although for purposes of the motion the defendants stipulated that the earthen trench system had failed and was necessarily abandoned and replaced, the defendants urged the court to reject the typical repair or replacement cost measure of recovery. They argued the court should instead apply the economic waste exception, which would limit damages to diminished value. As a result, they argued that the diminished value was at most the difference between the value of the earthen trench system in its defective condition ($0) and its value without defects, which they contended was the $1.097 million original cost of the system. They claimed that the State would receive a windfall if recovery was measured by the cost of the shallow concrete trench system. On December 19, 2000, the district court entered an order ruling on the motion in limine. The district court framed the questions addressed as follows: “The question to be decided by the Court is: Tf it is assumed that replacement of the underground thermal system was necessary, is the State’s claim for reimbursement for its replacement costs limited to the original cost of installing the system?’ Also: “What date are we going to use to determine the breach for purposes of determining the amount of damages?’ ” The district court was not clear as to the cost of installing the concrete trench system, stating: “[A]s the Court understands it, [the concrete trench system] cost $5,728,090.” Although the State had identified repair and replacement costs of $5.7 million, it asserts on appeal that this figure included not only the cost of the concrete trench but also the cost of repairing other systems damaged by GMM’s earthen trench system, e.g., telephone lines. The court concluded that “the State should not be awarded damages which would place it in a better position or with a better system than that originally contracted for and contemplated by the parties.” According to the district court, placing an outside limit of damages at $5.7 million for the concrete trench system would award the State an improper windfall. In addition, the court was of the opinion “that present day costs of replacing an earthen trench system originally installed in 1991 is not the proper measure of damages.” The district court, however, also rejected defendants’ argument that the State’s recovery was limited to the original cost of the earthen trench system, stating: “The Court finds that damages should be measured by the cost of installation of an earthen trench system on the date that plaintiff would have had notice that a cause of action might be accruing, i.e., the date that plaintiff became aware that the system was failing.” At the time the district court entered its order in limine, scant evidence, if any, had been provided to estimate the cost of repair or replacement of the earthen trench system. After the order was entered, the State proceeded to obtain evidence of what it would have cost to install an earthen trench system for the occupied prison in 1995, the time of discovery. The State retained an expert, William R. Bassette, P.E., who, according to his deposition transcript attached to the State’s response to a motion for summary judgment, determined that the cost to replace the system with another earthen trench system at the time the State should have discovered the system failure varied from $4.5 million to $6.3 million, depending upon the alignment used. According to the State, that amount did not include the cost to repair other utilities damaged by the defective system, e.g., telephone lines. The State asserted these figures were high primarily because of the difficulties in performing the construction work in an occupied prison. Defendants and the State disagreed as to whether the limine order limited the State’s replacement cost recovery to the original cost of the earthen trench system. After the State settled with Gos-sen, PEC, and Booker, the disagreement was presented to the court through a February 2001 summary judgment motion by GMM and Reliance. GMM and Rebanee asserted that GMM was entitled to credit the amount of the prior settlements against the State’s total damages. According to GMM and Reliance, the settlement amounts exceeded the State’s damages and, thus, the State had been fully compensated. PMC and DEN then filed their own summary judgment motion and incorporated the same credit-for-settlements argument against the State. The State’s response objected to disclosure of the specific amounts of confidential settlements but stipulated that settlement proceeds exceeded the original cost of the earthen trench system. At a March 16, 2001, hearing, the State asked the district court to clarify whether the bmine order hmited replacement cost recovery to the original contract amount. The partial transcript of that hearing reflects the following comment by the district judge: “I think that we want to go to the very end of my opinion because that when it’s all said and done, what I was trying to summarize, will cap damages as of the date the plaintiffs first had notice that it would have a cause of action due to the system failure. And the costs of installation of an earthen trench system on such date, whatever that may be, would be the upper limit of possible damage claims. “While I realize there could be some consequential damages . . . .” Subcontractor ATP was the first of the defendants to file a motion for summary judgment. It argued that the Kansas Product Liability Act, K.S.A. 60-3301 et seq., and the economic loss rule barred the State’s tort claims against it for negligence, strict liability, breach of express warranty, and breach of implied warranty. According to ATP, a products liability action based on tort cannot be maintained in Kansas for purely economic losses, and the State’s alleged damages were solely economic. Similarly, ATP argued that Kansas common law and the economic loss rule barred the State’s claims for strict liability and negligence. Subcontractor PMC also filed a motion for summaiy judgment. The stated purpose of the motion was to demonstrate that, as a matter of law, it had no direct contractual relationship with the State and that under the economic loss doctrine, the State could not maintain direct claims against PMC. On May 16, 2001, in a memorandum decision and order, the district court granted motions for summaiy judgment to the subcontractors PMC and ATP. Then, by orders filed June 25, 2001, the district court further granted motions for summary judgment to GMM and Reliance, PMC and DEN, and ATP. The district court found that all of the State’s claims against GMM and Reliance for breach of contract, negligence, and breach of implied warranty arose out of the parties’ written construction contract. It held that, as a matter of law, the existence of the contractual relationship barred the State’s assertion of tort claims arising from GMM’s performance of contractual obligations. The court further held that breach of contract was the State’s only actionable claim against GMM and dismissed the State’s tort-based claims against GMM and its surety, Reliance. The district court noted its previous ruling that the State could not maintain negligence claims against the defendants because any damages sustained by the State arose from contractual obligations, not negligence as a matter of law. It further found that there were no direct contracts between the State and any of the subcontractors and therefore held that the State could not maintain breach of contract claims against PMC, ATP, or DEN due to a lack of privity. The court also found that any damages sustained by the State were economic in nature, including “damages to the existing thermal system and its respective parts, the cost of repairs and replacement of portions of the system and eventually the entire unit, heat loss and increased operating costs.” It wrote that under Professional Lens Plan, Inc. v. Polaris Leasing Corp., 234 Kan. 742, 750-55, 675 P.2d 887 (1984), “direct and consequential economic loss damages of a non-privity ultimate purchaser are not recoverable from the seller since public policy concerns [of] dangerous product personal injuries to consumers are not present.” The district court also ruled out recovery for the State under its claims for breach of implied warranty. Finally, the district court rejected the State’s third-party beneficiary contract claims, stating: “Plaintiff contends that it is a third party beneficiary and thus entitled to enforce claims directly against ATP, PMC or [DEN], The purpose of the third party beneficiary rule is to allow parties to enforce a contract made for their benefit even if they were not a signatory to that contract. To apply third party beneficiary rules to the economic loss cases would be to completely ignore Professional Lens and the line of cases it represents. It would completely emasculate the economic loss doctrine. The Court does not believe third party beneficiary rules apply to the case at hand.” Next, the district court found that the State was limited to only one recovery for an injury or damage and that the State sought recoveiy from GMM and Reliance for the same injury or damage asserted against the settling defendants. Therefore, die district court held that GMM, the utilities general contractor, and Reliance, its surety, were entitled to a credit in the amount of the settlement funds already paid to the State. The court also held that “ATP and PMC/[DEN] are entitled to the same credit, to the extent the State’s claims against them sound in contract.” A separate order filed June 25, 2001, memorialized the district court’s order granting Reliance and GMM’s second motion for summary judgment. Noting that all the State’s direct claims against ATP, PMC, and DEN had been dismissed, the court wrote that the defendants had requested an order “limiting the State’s total damages to $129,609.00 — the State’s maximum recovery for direct and incidental damages after credit for settlement proceeds already received by the State.” The order set forih the following uncon-troverted facts: “1. On December 18, 2000, the court issued an order on defendants’ Motion in Limine regarding damages. “2. On March 16, 2001, the court ‘clarified’ its order by saying (as paraphrased by counsel) that the State will be limited to the cost of an earthen trench as of the date the State discovered that it would need to replace the easting utility trench, plus appropriate incidental damages. “3. In the prior motion for summary judgment it was established that the State paid [GMM] $1,097,000 for the original thermal piping system. “4. Bill Bassette, the State’s only testifying expert, opined that the cost [of] inflation for site utility work for 1991 through 1994 would be two percent (2%) or less. “5. When the cost of inflation for site utility work is added to the original cost of the insulation system ($1,097,000), to 1995, the result is $1,187,428. “6. On April 14, 2000, the State filed its expert witness disclosures wherein it identified all of its damages, including its alleged incidental damages. Those incidental damages are comprised of three elements: (i) energy loss [with interest] of $1,360,466, as set forth on Disclosure p. 3, ¶ 3; (ii) cost for a new fiber optic ‘backbone’ in the amount of $228,869, set forth on Disclosure p. 15, ¶ 4.a.ii; and (iii) the cost of fiber optic tie-in the amount of $37,866, set forth on Disclosure p. 15, ¶ 4.a.iii. The Disclosure does not segregate the energy loss calculation into energy cost and prejudgment interest on energy costs.” The district court held, as a matter of law, “that energy losses (caused by heat loss from the steam piping and heat gain to the chilled water piping) and the installation of the fiber optic system comprise the universe of the State’s consequential and incidental damages.” The court found that the State’s other damage categories arose from the replacement of the pipes, insulation, and associated utilities and, therefore, were direct damages. Moreover, the district court held that the State’s maximum direct damage award was fixed at $1,187,428, the amount it paid GMM for the earthen trench system in 1991 adjusted for inflation to 1995. As for other damages, the district court found that the State’s “maximum damages incidental to the alleged failure of the thermal piping system is $1,687,181.” After adding the figure for maximum direct damages ($1,187,428) to the maximum incidental damages ($1,687,181), and applying credit for settlement monies previously received by the State, the district court held that “the State’s maximum recovery against [GMM] and Reliance is $129,609.” As the parties are before this court on an interlocutory appeal, it is important to note that the State’s tort claims against GMM and Reliance are not in issue on appeal and that the only issues regarding the contract claims concern damages. Moreover, the only issue on appeal concerning the State and defendants PMC, DEN, and ATP is whether third-party beneficiary contract claims can be brought; the State’s tort claims against tírese defendants are not in issue on appeal. Standard of Review “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citation omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]). Measure of Damages The State asserts the district court erred by fixing its direct damages as the original cost of the earthen trench system, $1,097,000, plus an additional amount for inflation through 1995, the outside date the State contends it discovered the system was failing, for a total of $1,187,428. It persuasively argues the effect of the district court’s order is to allow restitution, not damages for breach of contract. The State believes it is entitled to recover the costs to build the concrete trench system as those costs are less than would have been incurred to build a new earthen trench system. Conversely, GMM contends the State’s direct damages are limited, as a matter of law, to the difference in value between the original earthen trench system specified in the contract and the value of the system actually delivered. It argues to allow recovery for the cost of the new concrete trench system would constitute a windfall to the State. GMM relies on Service Iron Foundry, Inc. v. M.A. Bell Co., 2 Kan. App. 2d 662, 679, 588 P.2d 463 (1978). The basic principle of contract damages is to make a party whole by putting it in as good a position as the party would have been had the contract been performed. See Kansas Power and Light Co. v. Thatcher, 14 Kan. App. 2d 613, 616-17, 797 P.2d 162, rev. denied 247 Kan. 704 (1990). See also Restatement (Second) of Contracts § 344(a)(1979) (basic purpose of contract damages is to make a party whole by putting it in as good a position as the party would have been had the contract been performed). Moreover, not only must a party demonstrate breach of contract and injury; the law also requires that there be a reasonable basis for computation of damages. English Village Properties, Inc. v. Boettcher & Lieurance Constr. Co., 7 Kan. App. 2d 307, 310-11, 640 P.2d 1282, rev. denied 231 Kan. 799 (1982) (quoting Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 [1974]). A party is not entitled to recover damages “not the proximate result of the breach of contract and those which are remote, contingent, and speculative in character.” Apperson v. Security State Bank, 215 Kan. 724, Syl. ¶ 7, 528 P.2d 1211 (1974). We, of course, agree with the parties that the basic purpose of contract damages is to make a party whole, not recover a windfall. We reject, however, GMM’s argument that the holding in Service Iron Foundry controls. There, the foundry sued to recover damages for breach of warranty in connection with its purchase of a pollution control unit. The Court of Appeals affirmed the trial court’s restriction of the foundry’s damages to the original purchase price and incidental expenses rather than the cost of a better, more expensive replacement — one that complied with the Kansas health codes — than had been originally bargained for by the parties. In short, the court refused to allow a windfall to the foundry. 2 Kan. App. 2d at 677-79. By contrast, in the instant case, the State is not seeking a better system than had been bargained for in the contract with GMM. The State is simply seeking to replace the deficient earthen trench system with a concrete trench system at a cost less than would be incurred if a new and identical earthen trench system was constructed. There is no windfall that needs to be prevented. The State did provide the district court with an evidentiary basis for its damage claim. In controverting GMM’s second motion for summary judgment, the State submitted evidence of its expert, William Bassette, P.E., that the cost to replace the existing system with another earthen trench system at the time the State should have discovered system failure would be between $4.5 million and $6.3 million. As we previously noted, this large increase over the original contract price was ostensibly because, in the interim, the prison became fully operational and occupied with prisoners. Additionally, the State’s response to GMM’s second motion included a table of damages by type. In that table, the State claimed resulting damages of $4,039,326 as the cost of the concrete trench system. For the foregoing reasons, we hold the district court erred in limiting the State’s potential recoveiy of direct damages to the original cost of the earthen trench system, $1,097,000, plus an additional amount for inflation through 1995. The correct measure of damages is the cost to build the concrete trench system, not to exceed the cost to build an earthen trench system as of the 1995 discovery date. The State also maintains that the district court erred in its classification of direct versus consequential damages. The district court held, as a matter of law, “energy losses (caused by heat loss from the steam piping and heat gain to the chilled water piping) and the installation of the fiber optic system comprise die universe of the State’s consequential and incidental damages.” It found that the State’s other damages arose from the replacement of the pipes, insulation, and associated utilities and, therefore, were direct damages. Here, the parties are in privity of contract and the State is entitled to recover direct and consequential damages. We conclude the fundamental issue is what recovery will make the State whole but not result in a windfall. See, State ex rel. Stephan v. Wolfenbarger & McCulley, P.A., 236 Kan. 183, Syl. ¶ 4, 690 P.2d 380 (1984); Service Iron Foundry, 2 Kan. App. 2d at 679. Nonetheless, we must consider the additional categories of damages the State seeks to recover to ascertain whether any of these damages should be considered as within the ambit of costs to build the concrete trench system we have previously stated are not to exceed the cost to build an earthen trench system. The State identifies four categories and respective costs to be: (1) finance, design, and administrative costs incurred to construct the concrete trench system — $932,232; (2) costs of repair to the earthen trench system before abandonment — $608,058; (3) costs to repair damages to other utilities — $711,484; and (4) energy losses — $984,938. We have already observed that in numbered paragraph 6 of the district court’s order of June 25, 2001, granting Reliance and GMM’s second motion for summaiy judgment, the court found the State’s consequential damage claim consisted of three elements totaling $1,687,181. The State acknowledges the court’s finding is based upon the State’s April 14, 2000, expert witness disclosures but argues that the district court failed to consider that the damage category “replacement concrete trench and related work totaling $6,179,41” also included costs of repair damages to other utilities. This, according to the State, resulted in the district court inappropriately treating these additional damage claims as direct damages for replacement of the concrete trench subject to the cap of $1,187,428. The State further contends that in its response to GMM’s second motion for summaiy judgment it did provide the district court with the above categories of damages totaling $3,236,712. Further, that its representation was fully supported by record evidence or un-controverted by the movants. We agree and conclude there exist genuine issues of fact that preclude the district court’s grant of summary judgment. However, we also conclude the State’s claim of finance, design, and administrative costs totaling $932,232 should be considered as part of the direct costs to build the concrete trench system and thus included within the limitation on recovery not to exceed the costs to build an earthen trench system. The balance of the State’s damage claims are separate and apart from the State’s direct costs to build the concrete trench system. Consequently, it is factually and legally inconsistent to subject these claims to the allowable maximum recovery for the costs to build the concrete trench system. We hold the State should be allowed to prove and, if proved, to recover these additional claims as will make the State whole. Accordingly, the district court’s grant of summary judgment to GMM and Reliance is reversed. Third-Party Beneficiary Claims The State maintains that it can pursue third-party beneficiary contract claims against PMC, DEN, and ATP. The district court found that there were no direct contracts between the State and any of the subcontractors and that due to a lack of privity the State could not maintain breach of contract claims against PMC, ATP, or DEN. The district court rejected the State’s breach of contract claims under a third-party beneficiary theory, stating: “Plaintiff contends that it is a third party beneficiary and thus entitled to enforce claims directly against ATP, PMC or [DEN]. The purpose of the third party beneficiary rule is to allow parties to enforce a contract made for their benefit even if they were not a signatory to that contract. To apply third party beneficiary rules to the economic loss cases would be to completely ignore Professional Lens and the line of cases it represents. It would completely emasculate the economic loss doctrine. The Court does not believe third party beneficiary rules apply to the case at hand.” The State attacks the district court’s order granting summary judgment in several ways. Lack of privity The State begins by asserting that it has standing to maintain a contract action as a third-party beneficiary because the district court never specifically found that it was not a third-party benefi- ciaiy of the subcontracts. This court observed in Professional Lens Plan, 234 Kan. 742, Syl. ¶ 1: “Privity of contract is that connection or relationship which exists between two or more contracting parties. It is essential to the maintenance of any action on any contract that there should subsist a privity between the plaintiff and defendant in respect of the matter sued on.” Where a plaintiff and defendant lack privity, Kansas law allows a qualified third-party beneficiary plaintiff to enforce a contract expressly made for his or her benefit even though he or she was not a party to the transaction. See Martin v. Edwards, 219 Kan. 466, 472-73, 548 P.2d 779 (1976); PIK Civ. 3d 124.24. The State contends that third-party beneficiary claims are not barred by a lack of privity under Pizel v. Zuspann, 247 Kan. 54, 63, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990); Fasse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, 736 P.2d 930 (1987); Cornwell v. Jespersen, 238 Kan. 110, 708 P.2d 515 (1985). This is not disputed. PMC and DEN argue, however, that the State failed to plead a claim based on third-party beneficiary theory and only asserted the theory when confronted with the requirement of privity and the economic loss doctrine. PMC and DEN’s procedural argument fails for the reason that the State’s amended petition expressly alleged that both PMC and DEN “expressly agreed to the following relevant terms for the intended benefit of the [State].” The burden of establishing standing to bring suit as a third party rests with the party asserting it. “Before the issue is reached of whether a third party may directly enforce a contract from which he would benefit, the third party must show the existence of some provision in the contract that operates to his benefit.” Hartford Fire Ins. Co. v. Western Fire Ins. Co., 226 Kan. 197, Syl. ¶ 5, 597 P.2d 622 (1979). “To be a third party beneficiary to a contract, the contract must be made for the third party’s benefit as its object, and he must be the party intended to be benefitted in order to be entitled to sue upon it. [Citation omitted.] The third party beneficiary can enforce the contract if he is one who the contracting parties intended should receive a direct benefit from the contract. Contracting parties are presumed to act for themselves and therefore an intent to benefit a third person must be clearly expressed in the contract. [Citation omitted.] It is not necessary, however, that the third party be the exclusive beneficiary of all the promisor’s performance. The contract may also benefit the contracting parties as well. [Citations omitted.]” Fasse, 241 Kan. at 389. On appeal and before the district court, the State specified clauses in the subcontract between GMM, the general contractor, and DEN and PMC by which it alleges that the contracting parties intended to benefit the State. The State also sets forth similar evidence in regard to ATP’s subcontract with DEN and PMC. The district court failed to set forth any findings concerning the State’s claimed status as a third-party beneficiary. Instead, it simply refused to apply third-party beneficiary rules to the case at hand. “[T]he interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.]” Alexander v. Everhart, 27 Kan. App. 2d 897, 901, 7 P.3d 1282, rev. denied 270 Kan, 897 (2000). The State contends that as to PMC and DEN, evidence of intent to benefit the State within the subcontract includes: (1) an agreement to furnish materials, equipment, and labor necessary to perform all work in accordance with GMM’s contract with the State; (2) the conditions and specifications of the contract between GMM and the State; and (3) an agreement to indemnify and hold harmless from “any and all loss, damage, costs, expenses and attorneys’ fees suffered or incurred on account of any breach of . . . this contract.” As to ATP, the State points out that the provisions of ATP’s subcontract with GMM under which ATP: (1) “agrees to be bound by the terms of the contract between the Owner, the General Contractor, if PMC is bound to the owner through a General Contractor, or any firm, person or individual functioning as such, and PMC as the case may be, and by the general conditions, special conditions, the plans, drawings and specifications as far as applicable to this Purchase Order,” (2) agrees to “be bound to PMC by the terms of the contract between Owner and General Contractor or PMC and the General Contractor or Owner . . . and to assume toward PMC all the obligations and responsibilities that PMC . . . assumes toward the Owner . . . insofar as they are applicable to the materials to be furnished under this Purchase Order,” and (3) stated that “all material shall conform to & shall be in accordance with the project specifications.” As this court stated in Noller v. General Motors Corp., 244 Kan. 612, 617, 772 P.2d 271 (1989): “Knowledge that a contract will benefit a third party is not intent to benefit the third party. [Citation omitted.] “We have long held: ‘Contracting parties are presumed to act for themselves and therefore an intent to benefit a third person must be clearly expressed in the contract. [Citation omitted.]’ ” Section 302 of the Restatement (Second) of Contracts (1979) is in accord. It states as follows: “(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. “(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.” Comment (e) to the Restatement states: “Performance of a contract will often benefit a third person. But unless the third person is an intended beneficiaiy as here defined, no duty to him is created.” Restatement (Second) of Contracts § 302, comment e (1979). The Restatement also provides general illustrations for comment (e). Illustration No. 19 states: “A contracts to erect a building for C. B then contracts with A to supply lumber needed for the building. C is an incidental beneficiary of B’s promise, and B is an incidental beneficiary of C’s promise to pay A for the building.” Restatement (Second) of Contracts § 302, comment e, illus. 19 (1979). While the State’s plans and specifications are referenced within the subcontracts in question, there is no language clearly expressing an intent for the subcontractors to assume a direct duty to the State. The provisions referenced by the State do not include a “promise or the specific intention to benefit” the State, nor were the provisions “made directly and primarily for the [State’s] benefit.” Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 708, 549 P.2d 1376 (1976) (quoting Mortgage Associates v. Monona Shores, 47 Wis. 2d 171, 190-91, 177 N.W.2d 340 [1970]). Therefore, we hold that under the language of the subcontracts in question, the State was not an intended beneficiaiy and the district court’s order dismissing the State’s claims against PMC, DEN, and ATP is affirmed. Our decision renders unnecessary any discussion and analysis as to the nature of the State’s damage claims against these companies with whom there is no privity. Affirmed in part, reversed in part, and remanded with directions. Davis, J., not participating. David S. Knudson, J., assigned.

The opinion of the court was delivered by Dawson, C. J.: This is an appeal from a judgment enforcing a provision of a real-estate mortgage contract which assigned to the mortgagee the rental income of the mortgaged property. The action was to foreclose a mortgage on a house and lot in Salina which defendants had executed to secure their promissory note for $3,345.67 in favor of plaintiffs, and payable in monthly installments with interest at 5 percent per annum. The note provided that in the event of default of payment of any installment for 90 days the holder of the note, at its option, could declare the remainder of the debt due and collectible without notice. The mortgage given to secure the debt was of the familiar sort used by the Home Owners’ Loan Corporation, and among its terms was the following paragraph: “The mortgagor herein hereby assigns to Home Owners’ Loan Corporation any and all rents on the premises herein described and authorizes said corporation, by its agent, to take possession of said premises at any time there is any default in the payment of the debt hereby secured or in the performance of any obligation herein contained, and rent the same for the account of the mortgagor as described herein and to deduct from such rents all costs of collection and administration and to apply the remainder of the same on the debt hereby secured.” Defendants became delinquent in their installment payments and on August 14, 1937, plaintiff brought suit to foreclose. Summons was issued to defendants, directed to the sheriff of Riley county for service, and on which that officer made return on August 30, 1937. Thereafter, on September 27, 1937, plaintiff filed an application for an order requiring the tenants occupying the mortgaged property to pay their accruing rentals to the clerk of the district court so that they could be applied toward the payment of the mortgage debt. On the following day the tenant occupants of the property were notified that this application had been filed and would be heard on October 1,1937, in the district court, and they were cautioned not to pay any of the accruing rents to defendants. On October 1, 1937, the district court made the order applied for, and directed that all accruing rents should thereafter be paid to the clerk of the district court until the date of sale of the property in foreclosure or until the court should otherwise direct. On April 2, 1938, defendant H. A. Benner made a special appearance to present a motion to quash the service of summons. This motion was not ruled on, but an alias summons to him was issued, directed to the sheriff of Shawnee county and served by that officer on April 17, 1938. On May 17, 1938, defendant Benner, by special appearance, filed a motion to set aside the court’s order of October 1, 1937, impounding the rents of the mortgaged property on the following grounds: (a) That the mortgaged property was his homestead and the rents thereof were exempt to him under the constitution and statutes of this state. (b) That no service had been had on defendant at the time the order of October 1,1937, was made. (c) That defendant had no notice of the time or place of the hearing of the application for an order impounding the rents. On June 4, 1938, which was the regular motion day of the court, defendants failed to appear in person or by attorney. Their motion of May 17,1938, was overruled and they were given 20 days in which to plead. No answer being filed within the time allowed, judgment was entered for plaintiff on June 29, 1938. To set aside that judgment, on July 28, 1938, defendants filed a motion, which plaintiff confessed; the judgment was set aside, and defendants were given until December 5,1938, to answer. In the answer of defendant Benner, various matters of no present consequence were pleaded, but a special plea was included to the effect that the provision in the mortgage, quoted above, was without consideration, that it violated the homestead rights of defendants as conferred by our state constitution and statutes and deprived defendants of their use and enjoyment of their property and their other privileges incident thereto up to the date of the sale in foreclosure. It was further pleaded that the acts of congress which had created the plaintiff corporation and prescribed its powers did not authorize it to exact the challenged provision as one of the terms on which it would loan its funds to distressed owners of homesteads. Defendant’s answer also referred to G. S. 1935, 60-1201 to 60-1208, to which we may recur if necessary in the course of this review. On December 10, 1938, all matters at issue were disposed of. The trial court found that the amount of $3,971.73 as principal and interest was due the plaintiff; that the sum of $352.91 as impounded rents had been paid by defendants’ tenants to the clerk of the court as directed by the court’s order of October 1, 1937; that the latter sum should be applied on the indebtedness as found by the court and that plaintiff should have judgment for the balance then due,- $3,-618.82; that the mortgage to secure payment thereof be foreclosed, and if payment were not made in 10 days an order of sale should issue and a foreclosure sale be had in due course with the usual instructions. All of defendants’ motions then pending were denied and disposed of, including one filed the same day which asked for a new trial. Defendant Benner appeals, specifying error on the court’s adverse rulings to his objections to the enforcement of the provisions of the mortgage touching the assignment of the rents to the mortgagee and matters incidental thereto. Appellee suggests that there was no finding of the trial court that the mortgaged property was the defendants’ homestead, but for the purpose of this appeal we shall assume that it was. And while it is true that under our constitution and pertinent statutes the family-homestead cannot be alienated without the joint consent of husband and wife, in the instant case the mortgage was so executed. Alienation of the homestead may be complete as by a deed (Elliott v. Faulkner, 131 Kan. 528, 534, 292 Pac. 918); it may be conditional, as by a mortgage (Ferguson v. Nuttleman, 110 Kan. 718, 721, 205 Pac. 365); and it may be merely partial and temporary as by a lease of the premises. To deny the validity of defendants’ voluntary assignment of the rents in this case would be to restrict their right to dispose of their homestead or any right or interest pertaining thereto. The objection to the trial court’s ruling touching the impounded rents, based on the fact that such rents were the income of defendants’ homestead, cannot be sustained. In other respects it is difficult to discern anything in this appeal that is not essentially governed by what this court has said in other recent cases. (Hall v. Goldsworthy, 136 Kan. 247, 14 P. 2d 659; Farmers Union Jobbing Ass’n v. Sullivan, 137 Kan. 196, 19 P. 2d 476; Kershaw v. Squier, 137 Kan. 855, 22 P. 2d 468; Holton B. & L. Ass’n v. Gibson, 139 Kan. 829, 33 P. 2d 138.) In 41 C. J. 628-629 the pertinent rule is thus stated: “It is competent for the parties to agree that the rents shall be collected by the mortgagee or a trustee and applied in reduction of the debt secured by the mortgage, and the mortgage may be so drawn as to pledge the rents and profits specifically as security, in which case they become, equally with the land, a primary security; and mortgages also frequently contain clauses assigning the rents to the mortgagee.” See, also, Anno. — Mortgage—Provision as to Rents and Profits, 87 A. L. R. 625-644. Among the cases in other jurisdictions which accord in principle with our own decisions and the rule just quoted, from Corpus Juris, we have found the following instructive: Title Guaranty & Trust Co. v. Monson, 11 Cal. (2d) 621, 81 P. 2d 944; White v. Anthony Investment Co., 119 Fla. 108, 160 So. 881; Mutual Life Ins. Co. v. Sutton, 278 Mich. 457, 270 N. W. 748; Dick & Reuteman Co. v. Jem Realty Co., 225 Wis. 428, 274 N. W. 416; Central States Life Ins. Co. v. Carlson, 98 F. (2d) 102. In First Joint S. L. Bk. v. Armstrong, 220 Ia. 416, 262 N. W. 815, the court held that the rents and profits of mortgaged real estate pledged for the payment of the mortgage debt constituted a sort of chattel mortgage which became due and enforceable upon default of the 'mortgagor and upon the inception of proceedings to foreclose the mortgage. In examining these interesting cases, with their diverse procedural shadings, we find none which excels our own decisions in their solicitude that no unfair advantage be taken of the mortgage debtor, nor any which guards with greater zeal his unassailable right to the rents and profits of the property during the redemption period following its sale in foreclosure. (Smith v. Shaver, 112 Kan. 790; 212 Pac. 666; Slabaugh v. State Bank, 123 Kan. 484, 256 Pac. 139; Capitol B. & L. Ass’n v. Ross, 134 Kan. 441, 7 P. 2d 86; Aley v. Schroeder, 144 Kan. 739, 741, 62 P. 2d 885.) See, also, Verdon State Bank v. Smyth, 137 Kan. 1, 18 P. 2d 897; Home Owners’ Loan Corp. v. Torrey, 146 Kan. 332, 69 P. 2d 1096; Home Owners’ Loan Corp. v. Dalton, 148 Kan. 580, 83 P. 2d. 624. Counsel for defendants have a talking point based on the fact that because of something the record does not make clear, good and sufficient service of summons had not been' made on defendant when the trial court made its order impounding the rents. But how was he hurt on that account? When alias service was effected, he moved to set aside the order, but he had nothing tenable to offer in support of his motion. Moreover, under the terms of the paragraph in the mortgage assigning the rents to plaintiff upon default of the mortgagor, personal service on defendant was not necessary. The action could have proceeded to a finality in every respect as a proceeding in rem; and the order ex parte was quite sufficient to impound the rents pending the foreclosure proceedings and until the property was actually sold by the sheriff pursuant to a judgment in foreclosure. A final objection to the order applying the impounded rents to the satisfaction of the principal indebtedness is based on the fact that the court had no power to make such an order without first finding that the real estate itself was insufficient to pay it. We think the provision in the mortgage is so worded as to make them a primary security for the satisfaction of defendants’ indebtedness. This court discerns nothing at variance with our constitution nor with any state or federal statute, nor with any rule of public policy which would vitiate the provision for the assignment of the rents voluntarily executed by defendants, nor in the judgment of the trial court pertaining thereto. The judgment is therefore affirmed.

The opinion of the court was delivered by Wedell, J.: This is an original proceeding in mandamus to compel the county assessor of Shawnee county to tax according to the intangible rate five shares of common stock of the American Telephone Company owned and listed for taxation by plaintiff, rather than according to the ad valorem rate applied by the defendant. The pertinent portion of the motion for the alternative writ in substance alleged: Defendant altered plaintiff’s tax statement in which the shares of stock here involved were listed by plaintiff for taxation in such manner as to classify the shares of stock as personal property, which bears the ad valorem rate, instead of leaving them as listed by plaintiff and as contemplated by the State Tax Commission, namely, under the heading of “moneys and credits,” so as to bear the intangible rate; plaintiff perfected an appeal to the State Tax Commission, which found plaintiff had properly returned the shares of stock for taxation at the intangible rate and it ordered defendant to accept the return as originally made; defendant refused to comply with the order. The motion for the writ further alleged: “3. . . . Plaintiff is informed and believes that under Senate bill No. 227 certificates evidencing shares of stock in corporations which do not have their principal office in Kansas are ‘notes and other evidences of debt’ and taxable at the rate of five mills per dollar of valuation. “5. At the time of the adoption of the amendment to section 1, article 11 of the constitution, the members of the committee of the House and Senate which submitted the amendment understood that certificates evidencing stock in corporations which did not have their principal office in Kansas were an ‘other evidence of debt’; and plaintiff is informed and believes that said amendment was voted upon by the electors of this state with the same understanding. (In support of this averment the affidavit of a member of the committee referred to is offered.) “A number of trusts have been formed outside of the state, so that the certificates of stock herein referred to have a business situs and do not pay taxes in this state, for the reason that it is an exceptional stock in a foreign corporation which pays more than a four-percent dividend, and a tax of four percent or more makes it impossible to carry such certificates of stock.” Defendant has demurred to the motion and has moved to quash the alternative writ on the ground it fails to state facts sufficient to constitute a cause of action, and for the reason Senate bill No. 227 is unconstitutional. The principal purpose of this proceeding is to test the constitutionality of Senate bill No. 227, enacted during the 1939 legislative session. The constitutional provision involved is the constitutional amendment of 1924, contained in section 1, article 11, popularly— although not entirely accurately — referred to as the intangible tax amendment. It provides: “The legislature shall provide for a uniform and equal rate of assessment and taxation,' except that mineral products, money, mortgages, notes and other evidence of debt may be classified and taxed uniformly as to class as the legislature shall provide. All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.” (Italics inserted.)- Senate bill No. 227 reads: “Section 1. Section 79-3108 of the General Statutes of 1935 is hereby amended to read as follows: Sec. 79-3108. That for the purpose of taxation the term ‘money’ shall mean and include gold and silver coin, United States treasury notes, and other forms of currency in common use. The term ‘notes and other evidences of debt’ shall include and mean certificates evidencing shares of slock othermse taxable to the owner or holder, notes, bonds, debentures, claims secured by deed, liquidated claims and demands for money, and all written instruments, contracts or other writings evidencing, calling for, fixing or showing a fixed obligation, determined or determinable, at present or in the future, in favor of the holder thereof.” The only change in G. S. 1935, 79-3108, is the addition, of the italicized portion of Senate bill No. 227. The 1939 legislature clearly intended by its amendment of G. S. 1935, 79-3108, to make “shares of stock otherwise taxable to the owner or holder,” taxable at the intangible rate. This result it sought to accomplish by classifying for taxing purposes such shares of stock as “evidences of debt.” That classification clearly appears to have been the result of a definite legislative policy designed to advance the public interest. It appears to have been the judgment of the lawmakers that by the application of the lower rate, the intangible rate, to such shares of stock the state could and would better succeed in bringing those shares of stock onto the tax rolls and thereby materially augment the total revenue collected from this particular class of property. In the wisdom of that legislative policy the members of the State Tax Commission unanimously concur. No principle of law is more firmly established in our system of jurisprudence than the principle that the lawmakers possess the sole authority to determine what legislative policies will advance the public interest. Such policies present questions of statecraft and are determined by the legislative branch of government, and not by the courts. (Kansas Gas & Elec. Co. v. City of McPherson, 146 Kan. 614, 72 P. 2d 985; Clinton v. State Tax Commission, 146 Kan. 407, 409, 71 P. 2d 857.) Courts are concerned only with the validity of the enactment. Does the constitution clearly prohibit the classification of shares of stock for taxing purposes? If it does that ends this lawsuit. If it does not clearly prohibit such classification, then is Senate bill No. 227 fatally defective by reason of the fact it classifies “shares of stock otherwise taxable to the owner or holder,” as “evidences of debt”? It is fundamental that our state constitution limits, rather than confers powers. Where the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby. (Lemons v. Noller, 144 Kan. 813, 63 P. 2d 177.) For the purpose of determining whether legislation is prohibited by the organic law, courts are guided by well-established principles. At the threshold of the inquiry courts start with the presumption the lawmakers intended to enact a valid law, and to enact it for the accomplishment of a needful purpose. Just as important is the equally well-grounded doctrine that if there is any reasonable way to construe the law as constitutionally valid, instead of invalid, courts must uphold the law. (State, ex rel., v. Board of Education, 137 Kan. 451, 453, 21 P. 2d 295; 11 Am. Jur., Constitutional Law, § 61.) A statute and pertinent constitutional provisions must be construed together with a view to make effective legislative intent rather than to defeat it. (State, ex rel., v. Anderson, 114 Kan. 297, 301, 217 Pac. 327.) In the instant case the legislative intent in the 1939 law is clear. Does the 1924 constitutional amendment prohibit the legislature from making effective that intent? The answer requires that we ascertain, as nearly as possible, the true purpose and intent of the constitutional amendment. That means the intention of both the framers and the adopters of the amendment. In determining their true intent courts are not restricted and limited by a mere technical interpretation of the exact words employed, but are required to place upon the constitutional provision involved a construction which will take into account the attendant circumstances, such as the mischief sought to be remedied, if such considerations will assist them in arriving at the real intent of the framers and adopters. (12 C. J., Constitutional Law, § 35.) In 11 Am. Jur., Constitutional Law, § 61 and § 62, the rule is stated thus: “The fundamental principles of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. A constitutional clause must be construed reasonably to carry out the intention of the framers, which gives rise to the corollary that it should not be construed so as to defeat the obvious intent if another construction equally in accordance with the words and sense may be adopted which will enforce and carry out the intent. The intent must be gathered from both the letter and spirit of the document. “It has been very appropriately stated that the polestar in the construction of constitutions is the intention of the makers and adopters. “Wherever the purpose of the framers of a constitution is clearly expressed, it will be followed by the courts. Even where terms of a constitutional pro vision are not entirely free from doubt, they must be interpreted as nearly as possible in consonance with the objects and purposes in contemplation at the time of their adoption, because in construing a constitutional provision, ils general scope and object should be considered.” (§ 61.) (Italics inserted.) “The familiar rule, as to the interpretation of changes in statutory law, that an inquiry should be directed to the old law, the mischief, and the remedy has frequently been applied in the interpretation of constitutional provisions. Constitutions are to be construed in the light of their purpose and should be given a practical interpretation, so that the plainly manifested purpose of those who created them may be carried out. In other words, a constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it is aimed. . . .” (§ 62.) (Italics inserted.) It is a well-established principle that for the purpose of arriving at the true purpose of an amendment and to make that purpose effective courts are not permitted to apply a technical construction to words employed. (12 C. J., Constitutional Law, § 43.) With these principles in mind let us first examine the real intent of the framers, the lawmakers, at the time they submitted the amendment to the people for adoption. What mischief did they intend to suppress by the amendment? We must and do assume they were familiar with the decision of this court in Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977, and others in which this court frankly recognized the fact that the old constitutional provision had outlived its usefulness and barred the pathway to the establishment of an equitable system of taxation through the classification of property, but that this court was bound by the constitutional provision requiring uniformity and equal rate of assessment and taxation as to all property. The framers of the amendment therefore sought authority from the people to classify various kinds of property for the purpose of taxation and to tax that property uniformly, as to class, as they should provide. Did they understand that shares of stock were intended to be embraced within the authority of the amendment to classify? In order to make the inquiry more specific, in its application to the instant case, let us see whether the framers of the amendment believed it prohibited them from classifying “foreign stocks” as evidences of debt, or did they understand it authorized them to classify “foreign stocks” so as to make them taxable at the intangible rate? That answer seems clear. The resolution to submit the amendment to a vote of the people was framed by the legislature of 1923. (Laws 1923, ch. 255.) The journals of the legislature disclose the leadership in the legislative session of 1925, that being the first session following the adoption of the amendment, was largely the same as that which framed the amendment in 1923. In 1925 the legislature enacted a law which made “foreign stocks” taxable at the intangible rate. (Laws 1925, ch. 277.) The same legislature amended section one, chapter 277, pertaining to moneys, but did not amend section two, chapter 277, which makes “foreign stocks” as credits taxable at the intangible rate. (Laws 1925, ch. 278.) In 1927 the legislature repealed both chapters 277 and 278, Laws of 192&, but again defined credits as including “foreign stocks,” and made them taxable at the intangible rate. (Laws 1927, ch. 326.) The 1927 law was repealed March 8, 1930. (Laws 1930, ch. 18, Special Session.) That repeal, in all probability, was prompted by the decision of this court in Voran v. Wright, 129 Kan. 1, 281 Pac. 938, and by the opinion on the rehearing of that decision on February 8, 1930 (129 Kan. 601, 284 Pac. 807), in which latter opinion it was indicated shares of stock did not constitute evidences of debt. It will, however, be well to also bear in mind that the case of Voran v. Wright, supra, and the case of Stevenson v. Metsker, 130 Kan. 251, 286 Pac. 673 (the latter being decided on March 19, 1930), both involved the taxation of shares of stock in state banks, and that the basis of the decision, in at least the Stevenson case, was that the tax on such stock was based on intangibles, and that intangibles were classifiable under the 1924 constitutional amendment, and that the intangible rate was applicable. The Stevenson case pointed out that shares of stock in state banks were assessed essentially on the basis of the intangibles of the corporate entity. In the early part of the 1931 legislative session a new law was enacted which again provided: “The term ‘notes and other evidences of debt’ shall include and mean shares oj stock in corporations, which shares are assessed in relation to and in lieu oj the intangible assets oj such corporations or associations, bonds . . . .” (Laws 1931, ch. 311, § 1.) (Italics inserted.) Later in the same legislative session, section one of that law was amended and the italicized portion thereof was omitted. (Laws 1931, ch. 312, which was G. S. 1935, 79-3108, and remained in effect until amended in 1939 by Senate bill No. 227.) This last act is another attempt to tax “shares of stock otherwise taxable to the owner or holder” at the intangible rate. These persistent legislative attempts to tax shares of stock at the intangible rate are attendant circumstances which throw much light upon the intention of the framers of the amendment, also upon the interpretation by subsequent legislatures of the intention of the adopters of the amendment. That the 1924 constitutional amendment is commonly referred to as the “intangible tax amendment” is common knowledge. The compiler of the General Statutes of 1935, in classifying the various acts, lists article 31 as “mortgage registration and intangibles,” and lists G. S. 1935, 79-3108, as the “intangible” statute. That this court itself has referred to the statutes enacted pursuant to the constitutional amendment as “the intangible laws” is not open to conjecture. (Voran v. Wright, 129 Kan. 1, 281 Pac. 938; id., 129 Kan. 601, 602, 284 Pac. 807; Stevenson v. Metsker, 130 Kan. 251, 252, 260, 262, 286 Pac. 673.) The gist of the decision in each of those cases was that shares of stock in state banks, under our law, were not taxed at their true value but essentially upon the intangibles of the corporate entity. (See Laws 1925, ch. 276, § 1, and Stevenson v. Metsker, supra, p. 261.) It was definitely determined in the Stevenson case that the 1924 constitutional amendment authorized the classification of intangibles, and that shares of stock in state banks were taxable at the intangible rate. In the Stevenson case it was held: “Shares of state bank stock assessed to shareholders take the intangible rate of taxation because, disregarding form and regarding substance only, the foundation for the tax burden which shareholders must bear consists essentially of intangibles which are classifiable under the amended constitution, and which have been classified and given a low rate by the legislature. . . .” (Syl.) (Italics inserted.) In the course of the opinion it was said: “The amendment was adopted by a vote of 250,813 for, to 196,852 against. Under authority of the amendment the legislature enacted the mortgage-registration law, the intangible-tax law, and the secured-debts law, providing for low rate of taxation on classified property, which, for convenience, will be called the intangible rate. In the case of Voran v. Wright, 129 Kan. 601, 284 Pac. 807, the court decided, in substance,, that shareholders in state banks were entitled to the benefit of the intangible rate, and plaintiff’s contention is based on his interpretation of the effect of that decision. “The problem for solution in Voran v. Wright involved application of the intangible rate in. taxation of shares of state bank stock.” (p. 252.) (Italics inserted.) “As stated above, the constitution was amended, and the intangible-tax laws were enacted.” (p. 256.) (Italics inserted.) “In taxation we penetrate to essence; and if, in final analysis, that which is assessed and taxed consists intrinsically of intangibles, the burden of taxation may not be made greater by sticking in the bark of terminology.” (p. 260.) “Since by going to the bottom of the matter we find that the ultimate subject of taxation is intangibles, reached for taxation through shareholders, it is not material that a share of bank stock, regarded simply as a share of bank stock, is not mineral, nor money, nor mortgage, nor note, nor evidence of debt.” (p. 262.) In a carefully considered dissenting opinion in the Stevenson case, Mr. Justice Harvey, after analyzing the constitutional amendment, said: “There is, therefore, no ground for the view which seems to permeate the opinion of the court in this case that by this amendment the legislature was authorized to classify and separately tax intangible property.” (p. 2S0.) (Italics inserted.) In view of that dissenting opinion it is manifest the question of whether the amendment authorized the classification of intangibles was thoroughly considered, and that a majority of this court concluded the amendment did authorize the classification of intangibles. In the absence of any constitutional definition of intangibles, we know of no valid reason why the legislature may not regard shares of stock as intangibles for taxing purposes. The framers of the amendment intended by the amendment to make intangibles classifiable for taxing purposes. Subsequent legislatures construed the amendment as authorizing the classification of intangibles for tax purposes. This court has construed it likewise. In view of these facts, shall we now strike down Senate bill No. 227 by saying the adopters of the amendment were wrong in assuming the amendment was intended to authorize such classification? Obviously not. True, the Yoran and Stevenson cases involved stock in state banks, while the stock here involved is stock in a foreign corporation. Certainly we shall not say the adopters of the amendment should have regarded the former as taxable, under the amendment, at the intangible rate and the latter at the tangible rate. The constitutional amendment simply will not permit of such a distinction. It inevitably follows that so far as the constitution is concerned, stocks in foreign corporations are classifiable for taxing purposes, as well as other stocks. Any certificate of stock in a corporation, whether foreign or domestic, represents something distinctly intangible. The actual worth of stock does not inhere in the piece of paper called a certificate, but in the corporate attributes behind it and in whatever else may for the time being contribute to its market value. Intangibles are either classifiable generally under the amendment or they are not classifiable at all. The amendment in no wise refers to intangibles as such, but this court has definitely construed the amendment as authorizing their classification. We may, therefore, proceed in the instant case upon the theory the framers and adopters of the amendment were also justified in the presumption the amendment permitted the classification of intangibles for taxing purposes. Shall we then defeat the plain legislative-intent of Senate bill No. 227, to tax intangibles, the shares of stock here involved, at the intangible rate? If we defeat that intent we must do so upon the basis of a strictly technical and legalistic meaning of the words “evidence of debt” contained in the constitution. We readily concede that according to the processes of refined judicial research an ordinary certificate of stock is not technically an “evidence of debt,” but rather a certificate evidencing the ownership of a unit of a corporate entity. (Voran v. Wright, supra, p. 612; Ryan v. State Tax Commission, 132 Kan. 1, 4, 294 Pac. 938; Citizens Bank v. State Tax Commission, 132 Kan. 5, 14, 294 Pac. 940.) Can we, however, say the mass of our people who adopted the amendment made that fine, legalistic distinction? Unless, beyond a reasonable doubt, we can answer that question in the affirmative the instant law must be upheld. (State v. Sherow, 87 Kan. 235, 239, 123 Pac. 866.) Statutes should not be declared unconstitutional unless the infringement of the superior law is clear beyond substantial doubt. (Comm’rs of Wyandotte County v. Abbott, 52 Kan. 148, 34 Pac. 416; State, ex rel., v. Hardwick, 144 Kan. 3, 5, 57 P. 2d 1231.) All presumptions are indulged in favor of the validity of a law, and doubts as to constitutionality are always resolved in favor of constitutionality. (Johnson v. Reno County Comm’rs, 147 Kan. 211, 216, 75 P. 2d 849.) Before a statute can be declared invalid its unconstitutionality must clearly appear. (State, ex rel., v. Hardwick, supra, p. 4.) In construing constitutional provisions courts do not strike down legislative enactments upon the mere ground they fail to conform with a strictly legalistic definition or technically correct interpretation of constitutional provisions. The test is rather whether the legislation conforms with the common understanding, the true intention, of the people at the time they adopted the constitutional provision. The interpretation should be that which the great mass of the people themselves would give it. (Mills v. Porter et al., 69 Mont. 325, 222 Pac. 428, 35 A. L. R. 592.) The presumption is in favor of the natural and popular meaning in which the words are usually understood by the people who adopt them. (12 C. J., Constitutional Law, § 48.) The constitution is not to be construed in a technical manner, but in ascertaining its meaning the courts consider the circumstances attending its adoption and what appears to have been the understanding of the people when they adopted it. (Bonsal v. Wellott, 100 Md. 481, 60 Atl. 593, 69 L. R. A. 914.) In 11 Am. Jur., Constitutional Law, § 65, the rule is stated thus: “Even though the language may seem to be clear in its meaning, many questions arise where a word which would otherwise be unambiguous has two or more separate and distinct meanings or connotations. In such a situation a question of construction exists, for it must be determined which of the possible meanings of the term is intended. Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption, although a different rule might be applied in interpreting statutes and acts of the legislature.” (§ 65.) In State v. Sessions, 84 Kan. 856, 115 Pac. 641, it was held: “A constitution must be interpreted liberally to carry into effect the principles of government which it embodies. It deals broadly with general subjects, and its language should not be interpreted in any narrow, refined or subtle sense, but should be held to mean what the words imply to the common understanding of men.” (Syl. ¶ 1.) In the opinion the court quoted, with approval, as follows: “‘Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.' (1 Story on the Const., 5th ed., § 451.)” (p. 862.) A majority of this court are not convinced beyond a reasonable doubt that the man on the' street, the lay mind, did not regard a “certificate evidencing shares of stock” as an “evidence of debt.” It seems to us there is a strong possibility or probability that he may have regarded certificates of stock, bonds or securities, as constituting “evidences of debt,” and as being intended to belong to the same general class of instruments as notes and mortgages. At any rate, to us it- does not clearly appear he did not so regard them. We think it fair to say the average man thinks of certificates of stock and securities in much the same way. He probably uses the words synonymously. The definition of the word “security” in Webster’s New International Dictionary, unabridged, second edition, 1935, will probably more nearly conform to the notions of the average man than a technical legalistic definition. It reads: “Security: . . . Chiefly pi, An evidence of debt or of property, as a bond, stock certificate, . . .”' . ■ Our own speculative securities law, commonly referred to as .the “blue-sky law,” defines “securities” as follows: ‘"Security’ shall mean and include any stock, share, bond, note, contract, debenture, investment contract, evidence of indebtedness, . . .” (G. S. 1937 Supp. 17-1223 [3].) In the early case of Culp v. Mulvane, 66 Kan. 143, 71 Pac. 273, this court said: “Certificates of stock are frequently spoken of as securities, but they are not such, in the proper signification of the term.” (p. 152.) (Italics inserted.) The italicized portion of the statement is our own judicial interpretation of the layman’s view. It is his view with which we are now primarily concerned. The unitalicized portion Is the technical, the legalistic, view, with which we are not now primarily concerned. In 14 C. J., Corporations, § 512 (4), is contained the following: “Strictly speaking, a share of stock is not, like a note, a chose in action, but it is analogous to, and in the nature of, a chose in action and has repeatedly been so classified.” Mr. Justice Hughes, in Hawley v. Malden, 232 U. S. 1, 58 L. Ed. 477, said: “While the shareholder’s rights are those of a member of the corporation entitled to have the corporate enterprise conducted in accordance with its charter, they are still in the nature of contract rights or choses in action.” (p. 12.) (Italics inserted.) A note writer in 30 Harvard Law Review, 487 (1917) in dealing with the interesting subject of “jurisdiction to adjudicate the ownership of a share of stock,” wrote as follows: “Perhaps the most logical explanation of the nature of a share of corporate stock in our law, and the one most commonly accepted, is that the share of stock is a chose in action of a complicated character — an obligor-obligee relation between the corporate entity and the shareholder.” (p. 487.) “A corporate share is a very complicated chose in action. It is not a right to a definite sum of money, but rather to a proportionate share of the assets of the company, whatever they may be, upon dissolution. There are in addition certain incidental rights and duties appended to the relation. Again, the stock is represented by a certificate, often negotiable, a mercantile specialty, which is generally in current use in commercial transactions. ‘‘First, as to the fact that the chose in action is not for a definite amount, and as to the added rights and duties. None of these change the essential obligor-obligee nature of the relation, and as it is upon this that the principles governing the simple contract rest, these added features do not affect the applicability of the principles to the share of stock. “Next as to the certificate. This is merely evidence of the right. In no sense is the obligation merged in the paper and thus to be treated as a chattel — the underlying obligor-obligee relation is not affected and so the principles' evolved above apply.” (p. 488.) (Italics inserted.) . The principle that an obligor-obligee relationship between the corporate entity and the shareholder exists is not only theoretically correct but practically sound. It is demonstrated by the fact that stock is always carried on the corporate books as a liability. Furthermore, a certificate of stock also represents the stockholder’s right to dividends and to a proportionate share of corporate assets on distribution. At least to that extent it must be conceded a certificate of stock evidences an obligor-obligee relationship, and to that same extent it may properly be regarded as an “evidence of debt,” for the purpose of construing the intent of the framers and adopters of the constitutional amendment. The paramount interest, or at least a substantial interest, of the ordinary stockholder in all probability lies in that aspect of stock ownership which represents an evidence of debt. It is, therefore, entirely reasonable to assume such aspect was uppermost in his mind when he voted to adopt the amendment. Obviously, he did not contemplate the amendment was designed to tax his right to vote the stock in connection with the business management of the corporate entity. That there must exist some reasonable basis for a classification made by the legislature is true. Courts cannot, of course, “perform a feat of verbal acrobatics and call an oil refinery a branch penitentiary,” as we were asked to do in State v. Kelly, 71 Kan. 811, 81 Pac. 450. (See Stevenson v. Metsker, supra, p. 260.) So long, however, as a classification is not based upon an unreasonable distinction courts will not interfere. (61 C. J., Taxation, § 58.) Since the classification made in Senate bill No. 227 has a reasonable basis, was designed for the advancement of the public interest, and it does not clearly appear the framers or adopters of the constitutional amendment intended to prohibit that classification, the legislative intent must be upheld. As previously indicated, we are not unmindful that in Ryan v. State Tax Commission, 132 Kan. 1, 294 Pac. 938, this court held that withdrawal shares of building and loan associations were not classifiable as credits under the 1924 constitutional amendment for the reason the interest of such shareholder in the association was “neither mineral product, nor money, nor mortgage, nor note, nor evidence of debt.” (p. 4.) That opinion was filed January 10, 1931. On the following 25th day of February the legislature enacted chapter 302 of the Laws of 1931 (G. S. 1935, 79-325a), by virtue of which shares in those associations are now assessed against and paid by the association itself. We understand, under that statute, shares in those associations are now taxed at the intangible rate under the administrative interpretation of our tax laws. The basis or method for arriving at the assessed value of such shares is much the same as that prescribed by G. S. 1935, 79-1101, for arriving at the assessed value of shares of stock in state banks, which latter shares are likewise taxed against and paid by the state banks, at the intangible rate. Under the present law it is difficult to see where any conflict, by virtue of the instant decision, will result in the actual taxation of the shares of stock in building and loan associations referred to in the Ryan case. If, and to the extent a conflict might arise, the views herein expressed will be controlling. The writ will be allowed. It is so ordered.

The opinion of the court was delivered by Allen, J.: This was an action to recover damages for disparagement of title. The appeal is from an order and ruling of the trial court overruling plaintiffs’ motion to strike a journal entry, and from an order sustaining defendants’ motion to strike the second amended petition from the files. In plaintiffs’ amended petition it was alleged that one John J. Chambers had acquired a certain oil and gas lease on 160 acres of land in Ellis county; that plaintiffs became the owners of the lease by assignment from Chambers; that on November 19, 1936, K. C. Bell, agent of defendants Weiner & Bell, filed an affidavit in the office of the register of deeds of Ellis county, in which it was stated that Weiner & Bell employed Chambers as their agent to procure oil and gas leases in Ellis county; that as such agent he procured the lease in question, but that in violation of his trust he took the lease in his own name; that Weiner & Bell are the true owners of the lease and are entitled to have it transferred to them. It was alleged in the petition that plaintiffs entered into negotiations with the Darby Petroleum Corporation for the sale of the lease; that as a result of the false and slanderous affidavit the Darby company refused to purchase the lease. Plaintiffs alleged damages in the sum of $2,682.40, for which judgment was demanded. On February 1, 1939, a demurrer to plaintiffs’ amended petition was sustained. No appeal was taken from that order. While leave was not granted to plead over, nevertheless on February 6, 1939, a second amended petition was filed. On February 11, 1939, the defendants filed a motion to strike this second amended petition from the files. Plaintiffs filed a motion to strike from the record the journal entry reciting the order and action of the court on February 1, 1939, sustaining the demurrer to the amended petition. On February 14, 1939, the court ruled on both motions; the motion of defendants to strike the amended petition filed on February 6 was sustained; the motion of plaintiff to strike the journal entry of February 1 was overruled. The appeal is from these orders. Was error committed in overruling defendants’ motion to strike the journal entry of February 1, 1939? A few days after January 19, 1939, the exact date not appearing in the record, the district, judge wrote counsel for plaintiffs and defendants as follows: “If not too stormy I will be in Erie in the forenoon of February 1, and may be able to rule on these demurrers at that time. Of course, exceptions will be given to either party.” The journal entry reciting the proceedings on that day reads: “On the 1st day of February, a. d. 1939, a judicial day of the regular October, 1938, term of this court, the above-entitled action came on for decision on the demurrer of the defendant, Carl Weiner, to the plaintiffs’ amended petition, the plaintiffs and the defendant, Carl Weiner, having heretofore appeared by their respective counsel, and having heretofore filed their written briefs on said demurrer. The court, having considered said briefs, finds that said demurrer should be sustained. “It is therefore ordered by the court: That the demurrer filed by the defendant, Carl Weiner, herein to the plaintiffs’ amended petition be, and is hereby sustained, to all of which the plaintiffs excepted and except.” No claim is made that the journal entry does not accurately set out the order actually made by the court. It is admitted the letter sent by the district judge, setting the hearing for February 1, was received by counsel. It is not urged that the weather was so bad that counsel were lulled into the belief that the court would not be present. Nor is it suggested that counsel had any points or authorities not contained in the briefs submitted, or that the result would have been different had counsel been present at the hearing. Our attention is called to rule 49 of this court, and the failure to submit the journal entry to counsel for plaintiffs is relied upon for reversal. In Dwelle v. Home Realty & Inv. Co., 134 Kan. 520, 7 P. 2d 522, 529, where a similar contention was made, it was said that the rules of practice were promulgated for the orderly and expeditious administration of justice, but that a judgment would not be disturbed by a mere breach of such rules unless the complaining party has been aggrieved thereby. "Counsel do not even now suggest that the judgment differs in form or substance from what it would have been if a tentative draft of it had been submitted to them before it was given the court’s approval.” (p. 529.) That ruling is decisive here. It is further contended the court erred in sustaining the motion of defendants to strike the second amended petition (which was filed on February 6, 1939, without leave of court) from the files. The journal entry of February 14, 1939, recites that “it further appearing that plaintiffs had heretofore on the 6th day of February, 1939, filed with the clerk a second amended petition, that such amended petition may be considered as filed as of this date and to take effect from this date.” The second amended petition having been filed on February 6, without leave of court, we think it was within the sound discretion of the court to make the order complained of on this appeal. Various other arguments of counsel have been examined with care, but we do not think they disclose reversible error or call for extended discussion. Finding no error in the record, the judgment must be affirmed. It is so ordered.

The opinion of the court was delivered by Wedell, J.: This was an action by an administrator de bonis non to recover possession of a certificate of corporate stock and dividends collected thereon. A demurrer based upon the grounds the petition stated insufficient facts to constitute a cause of action, and that the action was barred, was sustained. From that ruling plaintiff appeals. The petition filed on January 12, 1938, was in substance as follows: Plaintiff is the duly appointed, qualified and acting administrator de bonis non of the estate of Laura A. Tiernan, deceased, and his post-office address is Fort Scott, Kan.; the defendant, Robert S. Tiernan, is now and has been at all times herein mentioned since 1928, a resident of Kansas City, Mo.; Laura A. Tiernan died at Fort Scott, March 31, 1906, and administration was first had on her estate in the month of June, 1927; she left as her only heirs at law five children, Charles, William, Raymond, Robert S. Tiernan, the defendant, and Stella Tiernan Stour; at her death Laura A. Tiernan was the owner and holder of 58,520 shares of the capital stock of the Southwestern Coal & Iron Company, a Utah corporation, which shares were represented by a considerable number of stock certificates assigned by her in blank; some time after the death of Laura A. Tiernan, and before administration was had upon her estate, a person whose name is unknown to plaintiff was attempting to purchase a majority of the capital stock of the corporation, and the defendant Robert S. Tiernan represented himself and the other heirs in the transaction herein stated; for the purpose of convenience in the event a sale of the stock was made to the prospective purchaser, it was agreed by and between defendant and the remaining heirs that said certificates of stock owned by the estate should be consolidated into one certificate and should be issued to the defendant, Robert S. Tiernan, as trustee; in accordance with that agreement defendant caused the Southwestern Coal and Iron Company to issue a new certificate for the entire number of shares of stock, and that a certificate was issued to the defendant as trustee; in the year 1929 the stockholders of that corporation voted to convey all the property of the corporation to the Southwestern Coal Company, a new corporation to be organized under the laws of the state of Utah; the latter corporation was organized and it took over all the assets of the former corporation; in the,reorganization each stockholder in the new corporation was to receive the same number of shares he held in the old corporation; when the stock of-the new company was issued the defendant, Robert S. Tiernan, unlawfully, wrongfully, fraudulently and falsely represented to the new company that he was the sole owner of the 58,520 shares of the capital stock of the old company, and that he had acquired the interests and rights of the other heirs of Laura A. Tiernan, deceased; upon those representations there was issued to him as sole owner by the new company, a single certificate for all of the shares of stock; in December, 1935, and in March, 1937, the new company declared and paid two separate dividends on the stock in the aggregate amount of $5,266.80 to the defendant; plaintiff is entitled to have the certificate of stock assigned to him, and to a money judgment in the amount of dividends received; demand for such assignment and payment of dividend was made upon the defendant and the demand was refused; defendant has been a nonresident of the state of Kansas continuously from the time of the accrual of this action in the year 1929 to the date of the filing of this petition; the certificate of stock is an asset of the estate of Laura A. Tiernan, deceased, and plaintiff, as administrator de bonis non, is entitled to the possession thereof and to the dividends paid thereon. Did the court err in sustaining the demurrer? The first question is, whether under the facts admitted by the demurrer this action can be maintained by an administrator. Is the administrator the real party in interest? Laura A. Tiernan died intestate in 1906. No administration of her estate was attempted until- the year 1927. The title to the personalty, the shares of stock, passed upon her death to her heirs, including the defendant, subject only to the payment of her debts. (G. S. 1935, 22-118, 22-130.) The time for filing claims against her estate had expired long prior to the appointment of the administrator in 1927. (G. S. 1935, 22-702, and all former nonclaim statutes.) See, also, G. S. 1935, 22-312. Creditors, 'if such existed, were required to exercise diligence in procuring the appointment of an administrator to whom they might present their claims for allowance, and failing to exercise such diligence their claims became barred. (Robertson v. Tarry, 83 Kan. 716, 718, 112 Pac. 603; Crow v. Hartzler, 103 Kan. 800, 802, 176 Pac. 651; Timmonds v. Messner, 109 Kan. 518, 200 Pac. 270; Glathart v. Madden, 122 Kan. 563, 253 Pac. 426.) Creditors were required to wait only fifty days after the death of Laura A. Tiernan to apply for the appointment of an administrator. (Robertson v. Tarry; Crow v. Hartzler and Glathart v. Madden, all supra.) An administrator takes title to the property of a decedent as a trustee and only for the purpose of administering the estate. In the process of administration he represents two. classes of persons, creditors and heirs. Creditors of the estate, if any, slept upon their rights, their claims were barred and as to them no administration was required when plaintiff was appointed over twenty-one years after the death of Laura A. Tiernan. The rights of the heirs to the stock were at that time no longer limited or re-' stricted by claims of creditors. Their original limited or qualified ownership had then become unqualified and complete. (Brown v. Baxter, 77 Kan. 97, 94 Pac. 155; Glathart v. Madden, supra.) They were the owners of the stock. What occasion was there in 1927 for administering on the estate of the decedent? Obviously none. By the year 1927 the rights of creditors, if any ever existed, had vanished. Where there are no creditors administration has no office to perform. (Brown v. Baxter; Glathart v. Madden, supra; Riffe v. Walton, 105 Kan. 227, 231, 182 Pac. 640; Sohmidt v. Loan & Trust Co., 112 Kan. 535, 537, 211 Pac. 630.) There are some exceptions, such as compulsory administration for succession tax purposes, but none of them is involved in the instant case. This action was'commenced by the administrator in 1938, a period of over thirty-one years after the death of Laura A. Tiernan. Not only could he at that time in no manner represent the creditors, but he likewise had no function to perform for the heirs. They had, prior to his appointment, made their own disposition of their rights in and to the stock. Where rights of creditors are not involved such voluntary settlements are favored, in this state, and when fairly entered into will not be disturbed. (Brown v. Baxter; Riffe v. Walton, supra.) It is not alleged any undue influence, over-reaching or fraud tainted the disposition which they made of the stock prior to the year 1927. It wqs not challenged by creditors who alone could have been concerned. Upon what theory then can a court now invest the administrator with authority to set aside the voluntary agreement and settlement of the heirs? Manifestly, upon no theory. It is only alleged that one of the heirs, the defendant, Robert S. Tiernan, later and in 1929, fraudulently repudiated his trust. The repudiation of that trust concerned only the heirs in their individual capacity, in which capacity they created the trust. They alone in that individual capacity, if anyone, can now complain of the repudiation of the trust which it is conceded was known to them in the year 1929. The result is the heirs, and not the administrator, are the real parties in interest. (Brown v. Baxter; Glathart v. Madden, supra.) - It follows the administrator, as such, cannot maintain this action. Since he cannot maintain the action at all, we need not discuss the-second ground of the demurrer, namely, that the action is barred. Plaintiff reminds us the petition alleged the certificate of stock was owned by the estate and that the demurrer admits the averments of the petition. The demurrer, of course, only admits facts properly pleaded. It does not admit naked conclusions (Kretchmar v. City of Atchison, 133 Kan. 198, 204, 299 Pac. 621), and, of course, never admits erroneous conclusions. In view of other facts pleaded, it clearly appears the stock is no longer an asset of the estate, but the sole property of the heirs. The trial court made findings of fact in connection with the ruling on the demurrer to the petition, some of which are criticized as being somewhat inaccurate. Findings of fact, of course, were not required on a ruling on a demurrer to the petition. We have before us the petition, and the court reached the proper conclusion in sustaining the demurrer. That is all that is necessary on appeal. We have reviewed the authorities cited by plaintiff on the general proposition that an administrator is the proper person to recover the assets of a decedent’s estate. That such is the law cannot be doubted. He is not only the proper person to do so, but that is his duty. (Farmers State Bank v. Mitchell, 143 Kan. 286, 292, 55 P. 2d 423.) Here, however, he is endeavoring to recover property which is not now an asset of the estate, and to disturb a voluntary settlement and disposition of property fairly entered into by the heirs, which they had full authority to make. The order sustaining the demurrer to the petition is affirmed.

The opinion of the court was delivered by Thiele, J.: Plaintiff seeks by mandamus to compel the state auditor to register certain school-district bonds. The sole question before us is whether the school district was authorized to issue bonds to accomplish the purposes hereafter mentioned, and arises out of the following: The plaintiff school district embraces the city of Cottonwood Falls and some surrounding territory. The present school building is about thirty-five years old, and with the passing of years the heating plant and electrical equipment are said to have become inadequate, unsafe and not conducive to the health of the pupils and teachers, and the roof on the building has deteriorated to the extent that a new roof is necessary, it being impossible to satisfactorily repair the same. Assuming that the necessary funds for the purpose could be raised by a bond issue, the following proposition was submitted to the electors of the school district: “Shall Chase County, Kansas, School District No. 6 issue bonds in the sum of sixteen thousand dollars (816,000) as provided by law, for the purpose of equipping the present schoolhouse with necessary heating and electrical equipment and erecting and constructing a new roof thereon in and for said district; all of said bonds to be payable within twenty years and to bear interest at a rate not to exceed three percent (3%) per annum?” The result of the election was for the issuance of the bonds, and thereafter, under proper proceedings, they were issued and subsequently presented to the state auditor for registration. He refused registration on the grounds there was no power or authority for the school district to issue bonds for the purpose or purposes stated in the proposition submitted. This action followed. In determining whether or not the school district has the power to issue bonds for a particular purpose, we follow the test laid down in Kaw Valley Drainage Dist. v. Kansas City, 119 Kan. 368, 239 Pac. 760, where it was held: “Municipalities cannot issue bonds or other like securities unless the power to do so is conferred by legislative authority, either express or clearly implied. Any reasonable doubt as to the existence of such power should be resolved against its existence.” And see, also, Woodson v. School District, 127 Kan. 651, 655, 274 Pac. 728, and cases cited. Plaintiff contends that under G. S. 1935, 72-2001, authorizing a school district to issue bonds “for the( purpose of erecting and equipping, or purchasing and equipping, one or more schoolhouses in and for any school district,” etc., it may issue the present bonds; that the replacement of the present roof is erecting, and that the replacement of the present heating and electrical apparatus is equipping, a schoolhouse. It also contends that the fact a new building is not being erected and as thus erected is being equipped is not the test, as the greater project includes the lesser, and that bonds may be issued to erect a new roof on the present building and to install new heating and electrical equipment to replace that now there but inadequate for present purposes. The defendant contends, in effect, that the district is seeking by the use of funds from the sale of bonds merely to repair the school building, and that what is purposed to be done should have been done or should be done with the use of current tax receipts. It may be observed that under the statute authorizing the issuance of bonds either for the erection or purchase, and equipping, of the school building, the unit referred to is the building, and not its component parts. In terms the statute does not authorize the issuance of bonds to repair or replace any part of any existing school building. Essentially the question may be said to be whether the school district is erecting and equipping a school building or merely repairing a school building now in existence. In that connection, it must not be overlooked that were the proposed work now completed, the school district would have a building .in no sense different from the present building, save that it would have a new roof and assumedly a more adequate heating and electrical system; it would have no more room, and structurally it would not be changed. In Parker-Washington Co. v. Meriwether, 172 Mo. App. 344, 158 S. W. 74, the question was whether certain street improvements were reconstruction or repavement or repair, and in discussing that it was said: “In one sense, the term ‘reconstruction’ and the term ‘repair’ are so dissimilar as to render it difficult to make both terms applicable to the same work at the same time. In other words, ordinarily it is not easy to conceive of a thing being reconstructed and repaired at one and the same time. To ‘reconstruct’ is to construct again, to rebuild, to form again or anew, while to ‘repair’ is to restore to a sound state after decay, injury, dilapidation, or partial destruction; to mend. The only sense in which the two terms can be used together concerning a work is that, in those places where decay or dilapidation is so complete as to require a total reconstruction or forming anew, the work can be said to be ‘reconstructed,’ while at other points where the decay is only partial, the work is merely mended or repaired. . . . When, however, the proceedings authorizing work to be done employ the words ‘reconstruct and repair’ it should be held to be authorized under those sections which use those terms, and not under another and totally different section which contemplates either the creation or construction of the work as an original matter, or the total substitution of a new work in place of the old.” (pp. 348, 349.) In Cotter v. Joint School Dist., 164 Wis. 13, 158 N. W. 80, the question was whether, under a statute authorizing the erection or purchase of a school building, certain funds might be used to remodel a school building. It was there said: “It is urged that since the statute permits a loan only for the purpose of aiding in the erection or purchase of a schoolhouse, money cannot be borrowed for the purpose of remodeling a schoolhouse and building an addition thereto; that the remodeling of a building is not equivalent to an erection thereof. We think such a construction is too narrow. The statute was intended to enable school districts that did not have adequate schoolhouses to obtain them by-purchase or erection, and it should receive a liberal construction to effectuate that purpose. The remodeling of a building is more than repairing it or making minor changes therein. The ordinary significance of the term imports a change in the remodeled building practically equivalent to a new one. When it is supplemented by the building of an addition thereto the whole operation may properly be held to come within the purview of the statute. The inclusion of an old structure into a practically new one does not take the process out of the meaning of the term ‘erection,’ used in a broad sense.” (p. 15.) In Bradbury v. City of Idaho Falls, 32 Ida. 28, 177 Pac. 388, it appears the statute authorized issuance of bonds to acquire a light plant. The question was the right of the city to issue bonds to enlarge, extend, etc., an existing plant. In denying that right the court said: “The manifest purpose of permitting municipalities to issue bonds and to apply the proceeds of the sale of them to acquiring light and power plants is that they and their inhabitants may procure adequate light and power at reasonable rates and under management responsive to the will of their citizens. It does not follow, nor, may it be fairly implied in, or as incident to, the power to acquire such a plant and to issue and sell bonds to raise funds with which to pay the cost of acquiring it, that bonds may be issued and sold in order to raise funds with which to enlarge, extend, repair, alter and improve one already owned by a city, nor is power to do so essential to the accomplishment of the objects and purposes of such a municipal corporation. “It appears to have been the legislative intent that, while a light and power plant may be acquired by means of a bond issue, it must be enlarged, extended, repaired, altered or improved, if found necessary or desirable to do so, with funds derived from its operation, or at least, from some other source than the sale of bonds. Some of these items clearly are, and others may be, within the scope of maintenance, and there is nothing in the law to suggest a legislative intent that a municipality may raise money with which to maintain its light and power plant by the means here sought to be employed.” (p. 33.) It appears that courts of other jurisdictions have seen fit to draw a distinction between the erection of public improvements and the maintenance or repair of them, insofar as use of moneys from bond issues is concerned. We cannot agree with plaintiff’s argument that the greater includes the lesser. As has been indicated, our statute authorizing issuance of bonds for erecting and equipping schoolhouses has the schoolhouse for the unit. Were we to agree with the plaintiff, to be consistent we would have to approve any bond issue the purpose of which was to replace any worn-out or obsolete part of a school building, whether it was a new roof, a portion of a roof, a new floor, or a part of one, or some other part or portion of the building. The record here makes it clear that what it is proposed to do here is to put the school building in good condition by replacing or renewing parts of it; in other words, by repairing or replacing worn-out or inadequate parts. We think that had it been intended by the legislature that a school district be authorized to issue bonds for such purposes, it would have used language clearly indicating that purpose. And we are persuaded to this conclusion by the fact that on other occasions it has done so. Among other instances, it has provided for the issuance of bonds by the following statutes: Laws 1939, chs. 254 and 275; G. S. 1937 Supp. 72-1704, 72-1749 and 72-1752, for repair of school buildings; G. S. 1935, 12-631a, for repair of sewers; G. S. 1935, 12-805b, for repair of municipal public utilities; G. S. 1937 Supp. 13-1238, for repair of public levees; G. S. 1935, 13-1330, for repair of pavements in parks; G. S. 1935, 13-2531, for repair of certain pavements; G. S. 1935, 14-526 to 14-530, for repair of bridges; G. S. 1935, 24-489, for repair of dikes; G. S. 1935, 68-1106, for repair of bridges; G. S. 1935, 68-1411, for repair of bridges; G. S. 1937 Supp. 80-1602, for repair of township water systems. We conclude that under the statutes authorizing school districts to issue bonds for the purpose of erecting and equipping or purchasing and equipping a schoolhouse in the district, the district has no power to issue bonds the proceeds of which are to be used for repairing a presently existing building, and that the work contemplated in the present proceedings is repair work. The action of the state auditor in refusing to register the bonds was proper, and the writ of mandamus is denied.

The opinion of the court was delivered by , Dawson, C. J.: This was an action on a Missouri judgment. Defendants’ answer pleaded their discharge in bankruptcy. Plaintiff’s demurrer thereto was overruled. Hence this appeal. . Going somewhat into details, it appears that some years ago (the record is short on dates) defendants constituted a partnership in the business of farming in Chautauqua county. They contracted a partnership indebtedness to the plaintiff bank (amount not shown), for the evidence of which they executed to it a promissory note which they signed individually. On April 21, 1934, that note was reduced to judgment in an action before a justice of the peace in Jackson county, Missouri. The amount of that judgment was $356.25, and it was to bear interest at the rate of ten percent per annum. On May 6, 1936, this judgment was filed for record in the circuit court of Jackson county, Missouri, according to the law of that state. Sometime later this action on the judgment, which by some undisclosed process of arithmetic had amounted to $368.26, was begun in the district court of Chautauqua county. Plaintiff’s petition alleged the pertinent facts as set out above. C ' In their answer defendants alleged that at and prior to the time they had given their promissory note to plaintiff they were engaged in a farming partnership; that the indebtedness evidenced by that note was incurred in their partnership business; but after the execution of that note and the rendition of judgment thereon as alleged by plaintiff' — ■ “The defendants were duly and regularly discharged in bankruptcy by the United States district court for the western district of Missouri, western division, in a proceeding therein pending entitled as follows: ‘In the matter of Leonard Coleman Stephenson and Jimie H. Stephenson d/b/a [as] Stephenson & Stephenson a partnership,’ from all of their provable debts which includes the debt and judgment sued upon herein. “That in said proceedings in said United States district court, the plaintiff herein duly filed a claim based upon the judgment indebtedness sued upon in this action, the same was duly allowed by said court and defendants discharged therefrom.” The trial court overruled plaintiff’s demurrer to this answer, and - the correctness of that ruling is the subject matter of this appeal. Counsel for the litigants cite for our instruction a number of state and federal cases, including decisions of the United States supreme court. These we have studiously perused. (Francis v. McNeal, 228 U. S. 695; Myers v. Internat. Trust Co., 273 U. S. 380; Liberty Nat. Bank v. Baer, 276 U. S. 215, 72 L. Ed 536.) These cases and contemporary law journal comment thereon make it clear that there may be an adjudication and a discharge of a partnership in bankruptcy without an adjudication that the partners individually are bankrupt. (37 Harvard L. Rev. 614-616; 29 Columbia L. Rev. 1134-1140; 30 Michigan L. Rev. 807, 808.) Such a situation would or might arise wherever the theory of a legal entity of the partnership separate from its constituent personnel is emphasized. In some states a partnership is accorded a legal entity apart from its members. Illinois is decidedly to the contrary. (Abbott v. Anderson, 265 Ill. 285, 106 N. E. 782, L. R. A. 1915 F 668.) In this state we have not taken a positive stand on the question. In Farney v. Hauser, 109 Kan. 75, 198 Pac. 178, we said: “While a partnership is not strictly a legal entity, -for practical' purposes it may be considered as a business entity. It has its own capital, its own assets and liabilities, and it has a commercial life and credit of its own, virtually though not technically! independent of the members comprising it.” (Syl. If 2.) However, in any case of partnership bankruptcy the nonexempt estates of the individual partners may be drawn into the bankrupt partnership estate, in which case, in the absence of irregularities, common justice would seem to hold that the individual partners were entitled to their discharge in bankruptcy. (7 Remington on Bankrupty, § 3596; Gilbert’s Collier on Bankruptcy, 4th ed., §§ 241-243, p. 146; Armstrong v. Norris, 247 Fed. 253; Annotations to Sec. 23 of the Bankruptcy Act, in U. S. Code Anno., Title 11, pp. 278-285 and 298-300.) See, also, our own cases of Needham v. Matthewson, 81 Kan. 340, 105 Pac. 436; Bank v. Hoffman, 102 Kan. 465, 171 Pac. 13, and citations; Butler Bros. v. Twineham, 134 Kan. 547, 7 P. 2d 531. But we have no present need to study the purely legal aspects of this subject. Plaintiff demurred to the answer in which defendants specifically alleged that they had been duly and regularly discharged in bankruptcy from all their provable debts, including the debt and .judgment sued on. They also alleged that plaintiff had filed a claim in the bankruptcy court based on plaintiff’s judgment sued on, and that it had been allowed by that court and that “defendants [were] discharged therefrom.” Plaintiff’s demurrer to this answer conceded the truth of its pertinent allegations. (Phillips on Code Pleading, 2d ed., §§ 83, 302; 49 C. J. 362, 444, 445, 21 R. C. L. 506.) Counsel for plaintiff says that its demurrer was based on the proposition.that the bankruptcy of the partnership did not affect the liability of the appellees individually. That might or might not be correct as an abstract proposition. But to give countenance to that contention here would be to ask this court (or the trial court) to disbelieve the plain allegations of defendants’ answer. Mayhap what defendants pleaded could not be supported by the record.' If so, the way to have met their pleading was by a reply containing a general denial, or by a motion requiring them to set out in full the order of the bankruptcy court which should show beyond cavil whether or not defendants had been individually discharged from all their provable debts including the one sued on in this action. As the issue was joined, the judgment of the district court was undoubtedly correct and must be affirmed. It is so ordered.

The opinion of the court was delivered by Allen, J.: This action was to revive three certain judgments. A demurrer to the motions to revive the judgments was sustained. The appeal is from an order overruling a motion for a new hearing on the demurrer. On June 18, 1932, in a justice court in McPherson county, three separate judgments on three promissory notes were rendered in favor of Charles Lander, agent for the shareholders of the First National Bank, of Lindsborg, Kan., against the defendants, Seth Olson, J. P. Erickson and Gust Erickson. On June 25, 1932, a transcript of the judgments was filed in the office of the clerk of the district court of McPherson county. In the motion to revive, it is alleged: “That shortly after said judgments had been transferred to the district court of McPherson county, execution was levied upon lands of the defendant J. P. Erickson. Said execution was never carried out, as J. P. Erickson, on October 5, 1932, paid to Charles Lander, agent for said shareholders, the sum of $234.50, as full and final settlement of his share of said judgments, and obtained a release from Charles Lander, agent for said shareholder's, relieving him from all and further liability on said judgments. “This action for revivor is brought in the name of Merrill Tarnstrom, successor agent for the shareholders of the First National Bank of Lindsborg, Kan., he having qualified as such by having been elected by the shareholders of said bank and approved by Hon. Richard Hopkins, U. S. district judge for Kansas,.on April 26, 1938, as required by the U. S. code, act of June 30, 1876, as amended 1892, 1897; sec. 3.” On June 22, 1938, defendant J. P. Erickson filed a demurrer to the motions. On July 8, 1938, the court “refused to issue an order of revivor on any of said judgments.” We construe this ruling as equivalent to an order sustaining the demurrer of defendants. On July 11, 1938, the plaintiff filed “a motion for a new hearing on each of said judgments.” On October 28, 1938, this motion was overruled. On November 14, 1938, notice of appeal was duly served and filed. The notice of appeal recites that the appeal is from the “decision rendered and made in the above-entitled action on the 28th day of October, 1938.” Our statute, G. S. 1937 Supp., 60-3309, provides that an appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken. Our statute, G. S. 1935, 60-3221, provides that if a judgment becomes dormant it may be revived in the same manner as is prescribed for reviving actions. Under section 60-3209 an order for revivor may be made on motion. Under section 60-3210, if the order is not made by consent, notice of the application for the order must be served on the adverse party in the same manner and returned within the same time as a summons. In the instant case the motion or application for the order to revive the judgment was challenged by a demurrer. The order of the court sustaining the demurrer, under section 60-3302, was an appealable order. As stated, that order was made on July 8, 1938. A motion for a rehearing on a ruling on a demurrer is not provided for in our code or recognized in practice. The time for an appeal cannot be extended by the filing of a motion not permitted by our code of procedure. In Sheets v. Metropolitan Building Co., 144 Kan. 55, 58 P. 2d 93, an appeal was made from a final order. The appeal was dismissed for failure to comply with the rule as to costs. More than six months thereafter a motion was made to vacate the previous order, and when this motion was overruled, a second appeal was taken, attempting to raise the same questions involved in the first appeal. In holding the second appeal was too late, it was said: “If Sheets wanted that final order and judgment reviewed it was incumbent on him to prosecute his appeal. He could not stand by and permit the appeal to be dismissed, and under the form and guise of a motion in the district court to set aside and vacate the final orders and judgment theretofore made, again bring in issue the question of whether they were right or wrong and thus extend his time to appeal. Were that to be permitted, by successive failures to prosecute appeals and successive motions to review, a final disposition of the matter could be indefinitely postponed.” (p. 57.) See, also, Hilliard v. Southern Kansas Stage Lines Co., 146 Kan. 288, 290, 70 P. 2d 28. Compare Souden v. Rine Drilling Co., 150 Kan. 239, 92 P. 2d 74. As the appeal was not perfected within sixty-days from July 8, 1938, the date of the judgment sustaining the demurrer, the appeal must be dismissed. It is so ordered.

The opinion of the court was delivered by Allen, J.: This was an action for damages for disparagement of title. A demurrer to plaintiff’s amended petition was sustained, and plaintiff appeals. The amended petition alleged that on the 7th day of May, 1936, one John J. Chambers acquired title to an oil and gas lease on certain land in Ellis county, and that on May 15, 1937, by proper assignments the plaintiff became the owner of such lease. It was alleged that on the 19th day of November, 1936, the defendants by and through their agent, one K. C. Bell, executed and filed for record in the office of the register of deeds of Ellis county an affidavit in which it was stated that defendants had employed Chambers as their agent to procure oil and gas leases in Ellis county; that acting as their agent he procured the lease in question; that in violation of his trust Chambers took the title thereto in his own name; that defendants are the beneficial owners of the lease and are entitled to have the legal title transferred and assigned to them. It was further alleged that in May, 1937, plaintiff entered into a written agreement with the Sinclair-Prairie Oil Company for the sale of the lease to that company for the consideration of $2,000, which was the fair and reasonable market value of the lease at that time; that when the record title of the oil and gas lease was examined the Sinclair company refused to accept the title and complete the purchase of the lease unless defendants would clear the title by an assignment of the lease; that defendants refused to remove such false and malicious affidavit; that the Sinclair company refused to accept the title and complete purchase of the lease; that at “this time said oil and gas lease is worthless and has no market value.” Plaintiff asks judgment for $2,000 with interest. Did the petition state a cause of action for disparagement of plaintiff’s title to the oil and gas lease? Our statute G. S. 1935, 67-254, provides: “That whenever any person shall file in the office of register of deeds any affidavit, caveat or statement of any kind, signed by or on behalf of the claimant only, whether acknowledged or not, purporting to set forth any claim against, interest in or lien upon any real property belonging to another, if not based on a written instrument signed by the party to be charged, such claim, interest or lien shall, after expiration of thirty days from date of filing the same, no longer constitute any claim against, interest in or lien upon such real property, unless, within such time, the claimant shall begin an action in the court of competent jurisdiction to enforce such claim.” It was alleged in the petition that the affidavit was filed of record on November 19, 1936. The plaintiff did not acquire title to the lease until May 15, 1937. The statute gave the defendants thirty days from November 19,1936, to file an action to enforce any claim, interest or lien they might have in the land in question. The statute further provided that if an action was not so filed “such claim, interest or lien” would “no longer constitute any claim against, interest in or lien upon such real property.” The evident purpose of the statute was to compel any person who claimed an interest in “any real property belonging to another,” and who should file of record an affidavit or statement asserting such claim, to file his action promptly, so that such claim would not continue as a cloud on the title of the land affected. In Dwells v. Home Realty & Inv. Co., 134 Kan. 520, 525, 7 P. 2d 522, it was said: “We hold that if the allegations of the affidavit were false, plaintiff’s title was not only slandered when the affidavit was recorded (Printing Co. v. Nethersole, 83 Ohio St. 118), but that the slander continued without cessation to speak as long as it remained on the record and until the judgment. It was still speaking when plaintiff entered into a contract to sell the property to Conwell, and it frustrated that sale.” As the Dwelle case was decided in 1932 and section 67-254 was enacted in 1935, it is a reasonable supposition that the statute was intended to clear the title as to claims set forth in an affidavit, filed for record, and which “continued without cessation to speak” as long as such instrument remained of record. When the plaintiff acquired title to the lease the affidavit had been of record many months. By the terms of the statute any claim, interest or lien of defendants had long since been extinguished. Besides, the plaintiff is in no position to complain. The affidavit was of record when he acquired title. While the statement was not acknowledged, the statute 67-254 recognizes that such an instrument may be filed of record, and the plaintiff was therefore charged with notice of its contents. The judgment is affirmed.

The opinion of the court was delivered by Wedell, J.: This is an appeal by the plaintiff from an order overruling its application to modify and amend an order confirming a sale in a real-estate mortgage-foreclosure action in which the sale and all the proceedings of the sheriff under the order of sale had been approved and confirmed on the motion of the plaintiff and in the absence of the defendants. On February 9, 1938, the foreclosure judgment was rendered for the sum of $3,750.98, together with interest at five percent per annum and for costs of the action accrued and accruing, subject, however, to a first mortgage. The order of sale issued on February 15, 1938', and attached thereto was a blank form for the sheriff’s return. The property was sold on March 22, 1938, subject to the first mortgage. The signed return of the sheriff filed with the clerk of the court on March 22, 1938, disclosed the following facts and figures: “application of proceeds of sale Clerk’s costs ......................................... Sheriff’s fees ......................................... Publication of notice of sale........................... Taxes ................................................ | $34.71 Applied as credit on plaintiff’s judgment, with interest.. 3,750.98 Total ............................................. Amount of bid.................................................. $3,000.00” On the same day the return was filed plaintiff filed its motion to approve and confirm the sale. In compliance with plaintiff’s motion, the sale was approved and confirmed on March 25, 1938. The pertinent portion of that order reads: “The court having heard said motion and the argument of counsel, the objections, if any, to the confirmation of said sheriff’s sale, and having examined the order of sale and the sheriffs return endorsed thereon, and being fully advised in the premises, finds that said sale was duly and regularly made and held in conformity with law and equity; and that said sheriff’s sale, and all the proceedings of said sheriff under said order of sale, should be approved and confirmed and the clerk of this court authorized and directed to make an entry upon the journal of this court to the effect that said sale has been approved and confirmed by the court. “It is therefore considered, ordered, adjudged and decreed, That said sheriff’s sale, and all proceedings of the said sheriff under said order of sale, be and the same are hereby approved and confirmed by the court; and the clerk of this court is hereby authorized and directed to make an entry upon the journal of this court to the effect that the court finds that said sale has in all respects been made in conformity to law, and that the same has been approved and confirmed by the court.” (Italics inserted.) On December 13, 1938, and in response to a request by plaintiff for a certified copy of the journal entry of judgment, the clerk advised plaintiff that the court had directed her to inform the plaintiff that there was no deficiency judgment in the case. On January 5, 1939, plaintiff filed its application for an order requiring the sheriff to correct his return on the order of sale to speak the .truth. The substance of that motion was that all of the facts were fully and correctly set forth in the sheriff’s return.- In other words, plaintiff contended the return disclosed that the amount actually received by the sheriff and applied as a credit upon the judgment, with interest, was $3,000, minus $34.71, or $2,965.29, and not the full amount of the judgment in the sum of $3,750.98. To the application of plaintiff, defendant filed its objections, the. pertinent portion of which reads: “First. That an order confirming the said sheriff’s sale was obtained from the court upon the representation that the said sum of $3,750.96 was the credit upon the judgment obtained by the plaintiff in said cause; “Second. That the said- credit of $3,750.96 was authorized by the plaintiff’s attorney, who directed the said sheriff to endorse said credit upon his said return before filing in the office of the clerk of the district court of Ness county, Kansas; and said sale was, in fact, confirmed in reliance upon said proceedings and endorsement of the said sum of $3,750.96; “Third. That if, in fact, said judgment was not credited with said sum of $3,750.96, then that the said confirmation of said sale was improperly obtained and is based upon misrepresentation and mistake of fact and that said confirmation should be set aside.” (Italics inserted.) The defendant requested that in the event plaintiff sought to change or modify the return, then and in that event the court determine upon a proper hearing the value of said property and determine whether it would confirm the sale without crediting the entire amount of the judgment thereon. In response to the application and objections thereto, a hearing was had on January 19, 1939. Evidence was introduced by the parties relative to the conduct of the sale and matters pertinent thereto. The pertinent portion of the order overruling the application reads: “First, that the motion of the plaintiff should be overruled. Second, that at the time of the confirmation of said sheriff’s sale the court relied upon the sheriffs return showing that the judgment would he credited with the sum of $8,750.96, and that no deficiency judgment would remain. Third, that at the time of the hearing of the motion to confirm said sheriff’s sale, the defendants were not present in court, either in person or by counsel.” (Italics inserted.) The court ordered and directed the clerk to show a release and satisfaction of the judgment in full. The undersheriff who conducted the,sale was called as a witness for plaintiff. The substance of-his testimony was: The bid of the plaintiff was $3,000; one of the attorneys for the plaintiff had in his possession a form for a sheriff’s return and that the attorney had filled it out, and that he (the undersheriff) copied the data for his official return from the return in the possession of plaintiff’s attorney; it was in this manner that he credited the judgment with the sum of $3,750.98. The attorney for plaintiff, who was present at the sale, testified in substance: He did not have a blank return in his possession; he did not fill out any return; he had the figures on a piece of paper and gave the undersheriff the amount of the costs, the amount of the judgment and all those things as he usually did at a sale; he did not know when the mistake was made or whether he was to blame for it or not, but a mistake was made in the return; this return showing a credit on the judgment in the sum of $3,750.98 was on file at the time he obtained the order of confirmation; he had not examined the return and was unaware of its contents until after he had received a copy of the letter from the plaintiff stating what the clerk had said about the condition of the judgment. The cross-examination of the same witness discloses the following: “Q. Do you — did you announce to the court there was any deficiency you were carrying back at the time you confirmed it? A. I don’t recall that I did. I don’t recall that I did, I don’t remember. I submitted the confirmation journal entry; I had several of them, and I must have overlooked this fact, because I certainly would have wanted it fixed if I had seen it. “Q. Then, in that ease, you know the court has not been confirming any sales where there were any deficiencies? A. He has told me that since; I had never had one where that question was up before. “Q. That is all. “The Court: Q. When a sale is held, do you send copies of the proceedings to the attorneys of the Federal Land Bank right away, before you ask the court to confirm it? A. Yes; I usually do. “Q. Well, did you send a copy of this to the Federal Land Bank? A. I presume I did, on the regular form.” The order of confirmation discloses the court examined the sheriff’s return and approved and confirmed “all of the proceedings of said sheriff under said order of the sale.” That included the credit of $3,750.96, with interest, applied on the judgment. Even though plaintiff’s attorney did not examine the sheriff’s return, it was the duty of the court to examine it before confirming the sale. (G. S. 1935, 60-3463; Bank v. Kennedy, 98 Kan. 477, 478, 157 Pac. 1199.) The return at the time of the confirmation disclosed that $3,750.96, with interest, had been applied on the judgment. No deficiency judgment was requested by plaintiff. The record disclosed the court relied upon the sheriff’s return showing that the judgment was credited with the full sum of $3,750.96 and interest. That finding, together with the ruling on the application, clearly shows the court would not have approved and confirmed the sale had the return not disclosed that no deficiency judgment would result. The record further discloses the court approved the sale, with the entire sum of $3,750.96 applied on the judgment, as being in conformity with both law and equity. It was not only within the power of the court, but it was its duty to determine that fact. (G. S. 1935, 60-3463; Robinson v. Kennedy, 93 Kan. 514, 516, 144 Pac. 1002; Norris v. Evans, 102 Kan. 583, 590, 171 Pac. 606; Brewer v. Warner, 105 Kan. 168, 171, 182 Pac. 411; Insurance Co. v. Stegink, 106 Kan. 730, 732, 189 Pac. 965; Aetna Building & Loan Ass’n v. Reverend, 144 Kan. 307, 310, 58 P. 2d 1138.) And that was the province of the court even prior to the enactment of G. S. 1935, 60-3463a. (Kaw Valley State Bank v. Chumos, 138 Kan. 714, 718, 27 P. 2d 244.) G. S. 1935, 60-3463a, is simply interpretative of G. S. 1935, 60-3463, and declaratory of the equity powers which previously existed under G. S. 1935, 60-3463. (Liberty Savings & Loan Ass’n v. Jones, 143 Kan. 422, 435, 54 P. 2d 937.) There is no evidence in the record, and defendant did not undertake to introduce evidence at any time, to show that it was inequitable to apply the full amount of $3,750.96 and interest on the judgment. For all practical purposes the intent of plaintiff’s application was to be relieved of having the full sum of $3,750.96 with interest applied as a credit upon its judgment. That relief the court denied upon valid grounds heretofore stated. The credit allowed on the judgment must therefore stand. The result is such credit satisfied the judgment in full and the court properly directed the clerk to show a release and satisfaction of the judgment in full. Plaintiff also urges the court could not by its order of January 19, 1939, and in a subsequent term, modify its former judgment of February 9, 1938, by which last-mentioned judgment plaintiff obtained a judgment in the sum of $3,750.96. We do not construe the order of January, 1939, directing the clerk to show a release and satisfaction of the judgment in full as constituting a modification of the judgment rendered in February, 1938. The effect of the order made in January, 1939, to cancel the judgment was in harmony with the basis upon which the sale was confirmed and did not alter or modify the original judgment. The judgment is affirmed.

The opinion of the court was delivered by Smith, J.: In this action defendant was charged with the larceny of personal property, to wit: five steers of the aggregate value of $300. He was convicted and appeals. There was evidence on behalf of the state that about 8 p. m. October 17, 1938, an accomplice drove his truck to within a quarter of a mile of defendant’s home, where the defendant met him, and accompanied him to a nearby pasture, where some cattle were enclosed; that within this pasture between the hours of 8:15 p. m. on October 17,1938, and 3 o’clock, a. m., October 18,1938, the five head of cattle were slaughtered and hauled away in the truck by defendant and his accomplice. There was also evidence that the defendant and his accomplice after the truck was parked went into another part of the pasture and drove the cattle over close to where the truck was standing before killing them. The charging portion of the information was as follows: “William Hook, then and there being, did then and there willfully, unlawfully and feloniously steal, take and carry away certain personal property to wit: Two (2) White Paced steers coming two (2) year old; and three (3) coming two (2) year old Pole Angus steers, of the aggregate value of three hundred ($300) dollars, being the property of and owned by Joe O’Bryan, with the willful, unlawful and felonious intent and purpose to permanently deprive the said Joe O’Bryan of the same.” This information was evidently drawn with the idea of charging a violation of G. S. 1935, 21-533. That section reads as follows: “Every person who shall be convicted of feloniously stealing, taking or carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever of the value of twenty dollars or more, or any automobile, or motor vehicle, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep, goat, hog or in the nighttime any domestic fowls, harness or saddles, belonging to another, shall be deemed guilty of grand larceny.” Defendant points out the provisions of G. S. 1935, 21-539. That section reads as follows: “If any person mark or brand, or alter the mark or brand of any animal, the subject of larceny, being the property of another, with intent- to steal or convert the same to his own use, or shall willfully kill such animal with intent to steal or convert to his own use, the carcass or skin or any part of the animal so killed, he shall be adjudged guilty of larceny, and punished in the same manner as if he had feloniously stolen such animal.” Defendant refers to the evidence that has been stated here and argues that because defendant killed the cattle before he took them out of the pasture he was guilty of a violation of G. S. 1935, 21-539, rather than of G. S. 21-533, with a violation of which he was charged and hence his demurrer to the state’s evidence should have been sustained. This contention is not good. In the first place, when cattle are killed on the owner’s place and the carcasses are taken away, the person who kills the cattle and takes them away is guilty of larceny, as described in G. S. 1935, 21-533. (See 36 C. J. 750.) In the second place, when the defendant and his accomplice drove the cattle from one part of the pasture to another they took them into their possession and deprived the owner of them. Larceny was complete then. (See State v. Taylor, 136 Mo. 66, 37 S. W. 907; also State v. Williams, 199 Mo. 137, 97 S. W. 562.) The judgment of the trial court is affirmed.

The opinion of the court was delivered by Harvey, J.: In their motion for rehearing appellants point out a slight inaccuracy in the statement of facts in the opinion (p. 614), where it was said: “He (Petree) had been permitted to intervene in the Reno county actions.” There had been, in fact, no order authorizing him to intervene or granting him permission to do so. We are told this is principally because the motion or application to intervene never had been presented. We are glad to correct the inaccuracy. Petree’s motion to set aside as void the previous judgment of the court, in fact, was considered and sustained by the court, as shown by the journal entry set out at page 613 of the court’s opinion. Apparently this was done without any objection on the part of anyone' that a formal- order authorizing Petree to intervene in the cases had not been made. More than that, Petree was a person affected by the judgment alleged to be void and sought to be set aside, and therefore he had a right, under G. S. 1935, 60-3009, to file a motion to have the judgment set aside and to have such motion heard by the court irrespective of a formal order of the court permitting him to intervene. This is true even though previously he had not been a party to the actions (Hetzer v. Koogler, 87 Kan. 37, 123 Pac. 876), and this rule is applicable in garnishment proceedings. (Harm v. Klippert, 67 Kan. 743, 746, 74 Pac. 254.) We feel confident in saying that the absence of a formal order authorizing or permitting Petree to intervene in the Reno county actions has no specific bearing upon his right to move to have the judgments set aside as void, and, when his motions were sustained, the necessity of serving the notice of appeal upon him in order to have that ruling reviewed. The motion for rehearing is overruled.

The opinion of the court was delivered by Smith, J.: This was an action to partition real estate. Judgment was for an intervening petitioner. Plaintiff appeals. The action was brought against the record title holders to 240 acres of land. The defendants were all heirs of Isaac Nees. The plaintiff was the husband of one of the heirs who had died before the action was brought. The plaintiff claimed to be the owner of an undivided one-fifth interest in the land in succession to his wife. The petition alleged that subsequent to the death of Isaac Nees, Edith Jewell Seamans died intestate, leaving as her only heirs her husband, the plaintiff, and her only child, Kenneth, and thereafter Kenneth conveyed his right, title and interest in this real property to the plaintiff. The prayer was for a partition of the real estate. Kenneth Seamans filed an intervening petition. In it he first denied all the allegations of the petition and denied that the plaintiff was entitled to any interest in the land. The intervening petition then alleged that the plaintiff had been at all times mentioned a nonresident of Kansas and a resident of Missouri; that during her lifetime his mother inherited from her father an undivided one-fifth interest in the land in question; that by the terms of the will of Isaac Nees, if the mother of the intervenor did not convey this undivided one-fifth interest it would descend entirely to .the intervenor, and that the residuary clause of the will was as follows: “The remainder and residue of my estate I give and bequeath to my daughters hereinafter named, share and share alike, or in the event of the decease of either of them, the share of the deceased daughter shall be paid to their heirs, the issue of their own body.” The petition then alleged that on or about September 27, 1927, when the intervenor was but two days over twenty-one, he executed a warranty deed to plaintiff for all his right, title and interest in the land in question. The petition then alleged that either by mistake and the wrong understanding of the facts which would amount to fraud on the intervenor, or through intent to defraud the intervenor, the plaintiff stated to the intervenor at the time the deed was executed that plaintiff had inherited one-half of the land that was devised to Edith Seamans, and that the intervenor had inherited the other half; that the intervenor had always placed faith and confidence in his father, and believed the statement. The petition further alleged that plaintiff told intervenor that he desired to purchase the half interest at a price that would be more than it was worth in order to protect the interest of intervenor, and that the intervenor believed this statement and believed that he owned only a half interest of his mother’s interest in the land, and he would not have executed the deed had he not believed plaintiff, and he had only within a month or six weeks before filing the intervening petition learned that he had inherited the entire interest of his mother, and that he was misled either through ignorance of the facts or intentional design by the plaintiff into believing that he had inherited but a one-half interest in the lands from his father. The petition further alleged that the consideration for the deed was $1,500; that plaintiff had not paid, and did not intend to pay that amount, and $1,500 was an inadequate consideration for a one-fifth interest in the lands; that he had only been paid two years’ interest on the $1,500, and no part of the principal had been paid. The petition further alleged that at the time of the execution of the deed the plaintiff promised to give the intervenor a lien on the one-tenth interest to secure the payment of the purchase price, and that this price was to be paid five years from the date of the deed, with interest at six percent, but that plaintiff had refused to execute the security or to make payment of the indebtedness. The petition further alleged that on or about May 18, 1929, the plaintiff executed with other grantors a deed to one quarter section of land in question to one Topliff for $1,800; that on or about March 26,1930, one U. S. Gooding, by conveyance from plaintiff and his wife, became the record title holder of an undivided four-fifths in another quarter section of the land in question for a consideration of $1,600; that these transfers were made without the knowledge of the intervenor and came to his attention only within two or three months before the filing of the intervening petition. The petition further alleged that the plaintiff received as distribution from the fruits of these lands in the matter of the estate of Isaac Nees from 1928 to 1931 in the aggregate the sum of $1,-144.65, and that he received in the aggregate $735 as his share in the sales just mentioned. The petition further alleged that he did not know the amount of rents received by plaintiff, but asked for an accounting. The petition further alleged that if it should be determined that the deed from the intervenor to plaintiff conveyed a one-tenth interest in the land that there was still due and owing from plaintiff to intervenor the sum of $1,500, with interest at six percent per annum from September 27, 1929, until paid, and if through the misinformation, ignorance of the facts or through intentional fraud of plaintiff the deed should be set aside then intervenor should be decreed to be the owner in fee simple of a one-fifth interest in the lands in question. The intervenor made no claim against the purchasers of the land. The prayer of the petition was that the intervenor be decreed the owner of a one-fifth interest in the land; that plaintiff be required-to account for rents and profits and for the proceeds received from the sale of the lands, and that the deed given by the intervenor to plaintiff be set aside, and that one-fifth of the proceeds of the sale of the land be paid to the intervenor or that the deed be reformed to recite that it conveys only a one-tenth interest in the land, and that the court decree that a first and) prior lien be adjudged against this one-tenth interest for the payment out of the sale of one-tenth interest of the purchase price of $1,500, with interest thereon at six percent per annum until paid. The prayer further asked that plaintiff be required to account for one-half of the proceeds that he had received from the fruits of these lands and for one-half of the proceeds of the sale of the lands to Topliff and Godding. A judgment in partition was granted and one-fifth of the price for which the land was sold was impounded with the clerk of the court and is being held awaiting the outcome of this appeal. Subsequently an amendment to the original intervening petition was filed in which intervenor alleged that at the time he made the deed in question the plaintiff told the intervenor that a mortgage had been executed by him to secure the payment of the $1,500; that plaintiff, being the father of intervenor, had implicit faith and confidence in him and believed that a mortgage had been executed; that at the same time plaintiff told intervenor that he would keep the mortgage so that it would not become lost or destroyed and would deliver it to intervenor when requested; that intervenor has often requested the delivery of this mortgage, but that such delivery had been refused; that had this intervenor not believed the statements of plaintiff he would not have made the deed in question. In reply to the above pleading, the plaintiff first filed a general denial. The plaintiff then alleged that on and after September 17, 1927, and until the filing of the answer and cross petition, the plaintiff was personally present within the state of Kansas for approximately seven years; that all claims of the intervenor were barred by the statute of limitations. The reply further alleged that subsequent to the death of his wife he reminded intervenor that the undivided one-fifth interest in the land in question formerly owned by the wife of plaintiff was subject to a mortgage to the Citizens State Bank of Jewell City, securing the sum of $7,800; that the intervenor was becoming indebted to various individuals; that the plaintiff stated he would take care of these debts as far as he was able, but would require a conveyance from the intervenor of his interest in the land as soon as he became of age; that intervenor would convey to plaintiff in such a manner as to release any claim plaintiff had in the real estate; that in the course of the conversations the intervenor told plaintiff shortly before May, 1927, that the intervenor, as soon as he became of age, would convey to plaintiff all his right, title and interest in the land if plaintiff would take care of the mortgage heretofore referred to and so far as he was able would pay the intervenor’s no-fund checks and accounts; that the decision and judgment in the case of Allen v. Nees did not adjudicate the matter of the intervenor’s being solely entitled to his mother’s interest in the land in question; that pursuant to these conversations plaintiff paid no-fund checks and other indebtedness of the intervenor in the amount of between $1,500 and $2,000 and paid the mortgage debt to the Citizens State Bank. The reply further alleged that shortly after the intervenor became of age he executed and delivered to plaintiff the deed in question; that at that time the interest of intervenor in the property was worth not to exceed $50 an acre and intervenor inherited this interest subject to the mortgage of-the Citizens State Bank, and plaintiff, in reliance upon this oral understanding, paid the no-fund checks and accounts and discharged the mortgage; that thereafter the intervenor remained a resident of Kansas and was chargeable with knowledge of his own debts, of the mortgage and of the settlement of the estate of Isaac Nees, and knew of his own deed to the plaintiff; that if any demand existed on behalf of the intervenor it was offset by the cross demand of the plaintiff in discharging the above indebtedness, and unless compensated plaintiff was the owner of the mortgage for $7,800. As an amendment to this reply the plaintiff alleged that the mortgage spoken of was the accumulated amount of borrowings of plaintiff and his wife during her lifetime. With the issues thus made up the trial court made findings of fact and conclusions of law, as follows: Findings op Fact “1. The controversies presented in this matter to the court are between Kenneth Charles Seamans, intervenor, and his father, Olen C. Seamans, who was one of the plaintiffs in the partition suit. The intervenor was not made-a party to the partition suit, and he therefore became an intervenor for the purpose of presenting his claims, which are prosecuted in this case, not against the land in question, but against the- proceeds of the sale of a one-fifth interest in the land involved in the partition action, the proceeds of which are impounded by the court. The original title to the land, the proceeds of which are in. question, so far as this controversy is concerned, trace back through Isaac Nees, who disposed of his property by will, and by a residuaiy clause in the will devised the property involved in this controversy to his four daughters and o*ne granddaughter. The only part of the estate involved in this controversy is that which was devised to Edith Jewell Nees, one of the daughters of the testator, and the mother of the intervenor and the wife of Olen C. Seamans. The residuary clause of the will of Isaac Nees, which has been duly probated in the probate court of Jewell county, Kansas, reads as follows:. ‘The remainder and residue of my estate I give and bequeath to my daughters hereinafter named, share and share alike, or in the event of the decease of either of them, the share of the deceased daughter shall be paid to their heirs, the issue of their own body.’ “2. Isaac Nees died May 29', 1922. By the above quoted residuary devise Edith Jewell Seamans acquired an undivided one-fifth interest in the lands, the proceeds of which is involved in this action. “3. On the death of Edith Jewell Seamans, who died intestate, in July, 1926, her only living child, a son, the intervenor, inherited all of her interest, an undivided one-fifth interest, in the land of his grandfather, Isaac Nees, by virtue of the will of Isaac Nees, then deceased. “4. When his mother died, the intervenor, Kenneth Charles Seamans, was a minor of the age of nineteen years. He became of age September 26, 1927. “5. Olen Seamans did not inherit any part or interest in the Nees land from his wife, Edith Jewell Seamans, at the time of her death. “6. In 1925 Edith Jewell 'Seamans and her husband, Olen C. Seamans, moved to Kansas City, Mo., where Olen C. Seamans worked for various live stock commission firms, and on his own account, his work taking him into the state of Kansas frequently. “7. In 1925, when Olen C. Seamans and his wife went to Kansas City, he owed the Citizens State Bank of Jewell City, Kan., between $6,000 and $8,000, which indebtedness was the accumulation of years prior thereto, and was originally secured by chattel mortgage on the property of Olen C. Seamans and Edith Jewell Seamans. “8. On March 1, 1926, Edith Jewell Seamans and her husband, Olen C. Seamans, gave a note and mortgage on Edith Jewell Seamans’ undivided one-fifth interest in the real estate she received through the will of her father, Isaac Nees, to secure the payment of $7,800 to the Citizens State Bank of Jewell City, which indebtedness was also secured by the prior chattel mortgage referred to in finding number 7 and by the pledge of a contract of Edith Jewell Seamans and her husband, Olen C. Seamans, for lands Olen C. Seamans had agreed to purchase, and had formerly belonged to his father, then deceased, on which contract- Edith Jewell Seamans had paid $3,000 of her own individual funds. “9. The land sold in the partition suit, the proceeds of which are involved in this controversy, was reasonably worth, in 1927, about $50 per acre, or $-. “10. After the death of Edith Jewell Seamans, the bank threatened to foreclose their mortgage on the lands formerly owned by Edith Jewell Seamans, and plaintiff returned from Kansas City to Jewell county to discuss this situation with the intervenor, Kenneth Charles Seamans, and his creditor, the Citizens State Bank of Jewell. “11. Kenneth Charles Seamans, although a minor, remained in Jewell county when his father and mother went to Kansas City. He received and used his own wages, attended high school in Jewell county, and also attended business college in Concordia for over a year, the school expenses being paid for by his parents. “12. At Concordia, and elsewhere, Kenneth Seamans, while a minor, incurred debts and liabilities, some of which were no-fund checks, and most of which were paid by his father, Olen C. Seamans. “13. In March, 1927, Olen C. Seamans and Kenneth Charles Seamans, in Jewell county, talked over the indebtedness of each other. The father suggested to the son that he might take over the Nees land formerly owned by his mother. Kenneth Charles Seamans stated that he could not refinance the land himself, and Olen C. Seamans told his son, Kenneth Charles Seamans, that he, Olen C. Seamans, would take over said land, forgive the payments made for Kenneth Charles Seamans’ benefit, and pay other obligations that were discussed at that time, amounting to $1,500, if Kenneth Charles Seamans would execute a deed to all his interest when he became of age on September 26, 1927. The intervenor orally agreed to do this. “14. Olen C. Seamans requested L. E. Weltmer, a lawyer of Mankato, to prepare such a deed, to be executed by Kenneth Charles Seamans, and L. E. Weltmer prepared said deed. On September 27, 1927, Kenneth Charles Sea-mans, in compliance with the oral agreement mentioned in finding number 13, appeared at the office of L. E. Weltmer, where said deed was read over to him, and discussed by him and L. E. Weltmer, and was signed and acknowledged before F. R. Fair, a notary public, in another office, and was made a matter of record in the register of deeds office of Jewell county, Kansas, on September 27, 1927, at 10 am., the same day of its execution, and was then mailed to the plaintiff at Kansas City. “15. The mortgage given on the Nees land inherited by Edith Jewell Sea-mans to the Citizens State Bank was released and receipt of payment of $7,800 acknowledged from Olen C. Seamans and wife on May 27, 1927. “16. Olen C. Seamans claimed after the death of his wife that he inherited from his wife an undivided one-half interest of the one-fifth interest in the Nees land owned by his wife, and that his son, Kenneth Charles Seamans, inherited the other half, and this was the claim and the belief of Olen C. Sea-mans for many years after the death of his wife, including March, 1927, when he and Kenneth Charles Seamans discussed their indebtedness, and came to an oral understanding in reference to the transfer of Kenneth Charles Sea-mans’ interest in the land of his mother. “17. Olen C. Seamans informed his son, Kenneth Charles Seamans, that he, Olen C. Seamans, inherited one-half of Edith Jewell Seamans’ interest of the lands of her father, and Kenneth Charles Seamans believed this, and believed at the time, and on September 27, 1927, when he deeded his interest in said lands to his father, that he had only an undivided one-half interest in the land of his mother. “18. Kenneth Charles Seamans, at the time he executed said deed, thought he was the owner of, and intended to convey said undivided one-tenth interest in said land, and Olen C. Seamans, the grantee in said deed, thought he was receiving title by said deed to an undivided one-tenth interest in said land from Kenneth Charles Seamans. “19. To Olen C. Seamans the deed, in question in this controversy, transferred from Kenneth Charles Seamans only an undivided one-tenth interest in the lands described therein, viz., the west half of the northeast quarter, and the east half of the northwest quarter of section 29, township 4 south, range 8, and the southwest quarter of the southeast quarter of section 7, township 5 south, range 8, and the northwest quarter of the northeast quarter of section 5, township 5 south, range 8, and the east half of the southwest quarter of section 34, township 4 south, range 8, all in Jewell county, Kansas. “20. After the execution of the above-mentioned deed by Kenneth Charles Seamans to his father, Olen C. Seamans, his father claimed he had title to the undivided one-fifth interest in the Nees lands owned by his wife during her lifetime. This claim of ownership was made by Olen C. Seamans believing the conveyance by the deed heretofore mentioned of Kenneth Charles Sea-mans, to Olen C. Seamans, conveyed an undivided one-tenth interest to the lands therein described, and believing that he inherited from his deceased wife her other undivided one-tenth interest in said land. “21. After the execution of the deed from Kenneth Charles Seamans to his father, Olen C. Seamans, he, with the residuary legatees, agreed to the appointment of Leslie Breed as agent for the sale of eighty acres of the land described in the deed of Kenneth Charles Seamans to his father, Olen C. Seamans, to which arrangements Kenneth Charles Seamans made no objection, he believing that his father, Olen C. Seamans, had inherited an undivided one-half interest in his mother’s land, and that he had conveyed to his father his, Kenneth Charles Seamans’, undivided one-half interest in said land. “22. The lands sold by Leslie Breed for the residuary legatees were sold for $3j800, and Olen C. Seamans received from said proceeds the sum of $760. “23. After September 27, 1927, Olen C. Seamans received rents from his claimed undivided one-fifth interest in land sold by Leslie Breed and the land sold in this partition action, the sum of $998.35, the same being the undivided one-fifth interest of the rentals and income from all of said land. “24. Kenneth Charles Seamans did not find out that his father did not inherit from his, Kenneth Charles Seamans’ mother, an undivided one-half interest in the lands she received from her father’s estate until about the month of October, 1937. “25. The will of Isaac Nees was admitted to probate in the probate court of Jewell county, Kansas, June 12, 1922, and the administrator was discharged June 24, 1932. “26. A confidential relationship existed between Olen C. Seamans and his son, Kenneth Charles Seamans, during the minority of said son, and on September 27, 1927, when the deed in question was executed by the son to the father, and such condition continued to exist on the part of Kenneth Charles Seamans until after he received the letter introduced in evidence from his father in October, 1937. “27. The court finds that Olen C. Seamans is the owner of a $6,000 note which was paid May 27, 1927, and that he is the owner of this mortgage introduced in evidence, as Olen C. Seamans’ exhibit No. 2, and also of the receipt on the back of it, which recites that it has been paid in full by Olen C. Seamans and wife, which mortgage was given to secure the $6,000 note, which is marked paid, and which mortgage is released. “28. The court finds that Olen C. Seamans pledged his interest in Nees land to his wife, Dr. S. A. Carter, whose real name was Mrs. Olen C. Seamans; that his interest in the land at that time was an undivided one-tenth interest; that the instrument never was made a matter of record in this county, and is not at this date a matter of record, and the evidence does not disclose Kenneth Charles Seamans had any notice of the execution of the instrument referred to until the trial of this case.” “Conguusions op Law “1. The deed of Kenneth Charles Seamans, dated September 27, 1927, conveyed to the grantee, Olen C. Seamans, an undivided one-tenth interest in the land described in said deed and set out in finding 19. “2. Kenneth Charles Seamans is the owner of an undivided one-half interest in the rents and profits accruing after September 27, 1927, and the sale price of said lands and also from the lands sold by Leslie Breed, received by Olen S. Seamans. “3. Kenneth Charles Seamans is the owner of and entitled to an undivided one-half interest in the proceeds of an undivided one-fifth interest in the lands sold in this partition action, as belonging to Olen C. Seamans, which proceeds are now in the hands of the clerk of this court. “4. The plaintiff, Olen C. Seamans, should pay the costs of this hearing.” The judgment was that the intervenor recover judgment against the plaintiff in the sum of $1,591.40. The plaintiff appeals from the judgment and all intermediate orders. His argument is that the facts found by the trial court do not support the judgment. Plaintiff argues that the findings show that the intervenor is precluded by the statute of limitations. This argument requires careful examination. At the outset it should be stated that the period of limitations that applies to this action is two years. (See Hamill v. Hamill, 134 Kan. 715, 8 P. 2d 1077.) It will be noted that the court made extensive findings of fact. In such a case it will be presumed that all the facts the court deemed necessary to support its judgment were included in the findings. If these findings lack essential facts necessary to sustain the judgment of the court the judgment cannot stand and must be reversed. (See Young v. Washington County Comm’rs, 127 Kan. 227, 273 Pac. 398; Carlgren v. Saindon, 129 Kan. 475, 482, 283 Pac. 620; Martin v. Scott Lumber Co., 127 Kan. 391, syl. ¶ 3, and page 394, 273 Pac. 411; and Frontier Lodge v. Wilson, 139 Kan. 75, 81, 30 P. 2d 307.) The will of Isaac Nees, the grandfather of intervenor, was admitted to probate in Jewell county June 12,1922. The case of Allen v. Nees was filed and decided before the death of the mother, and hence before the execution of the deed we are considering. The intervenor, who became of age September 26, 1927, and before the execution of the deed to his father, was bound to take notice of the public records of his own title to the property, as was his father. If he had no actual notice of these records he had constructive notice of them, which prevents him from claiming that he did not discover his alleged interest, and the alleged fraud of his father, until 1937, and he cannot claim that the statute did not begin to run until then. (See Black v. Black, 64 Kan. 689, 68 Pac. 662; Duphorne v. Moore, 82 Kan. 159, 107 Pac. 791; Walline v. Olson 84 Kan. 37, 113 Pac. 426; Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332; Hamill v. Hamill, 134 Kan. 715, 717, 8 P. 2d 311; Smith v. Rector, 135 Kan. 326, 10 P. 2d 1077; Johnson v. Jusick, 137 Kan. 147, 19 P. 2d 433.) The findings are insufficient to show that the statute was tolled so that the son might maintain his action in 1937. In finding No. 6 the court found that the plaintiff moved his residence.to Kansas City, Mo., but found that he was in Kansas frequently. The mere legal residence of the father in a foreign state is not the test of whether the statute is tolled. The court must find that the party was personally absent from the state. (See Dixon v. Windscheffel, 88 Kan. 824, 129 Pac. 938; Miller v. Baier, 67 Kan. 292, 72 Pac. 772; Investment Co. v. Bergthold, 60 Kan. 813, 58 Pac. 469; and Bowman v. Bowman, 134 Kan. 477, 478, 7 P. 2d 521.) Moreover, the court found that the plaintiff was employed by certain Kansas City livestock commission firms. In the briefs it is said that the evidence showed he was in Kansas every day while he was engaged in this work. This is not disputed. This court will take judicial notice of the fact that the livestock yards and pens of the Kansas City livestock market are located on the state line between Kansas and Missouri and also within the state of Kansas. (See Patterson v. Railway Co., 77 Kan. 236, 94 Pac. 138; State v. Novak, 116 Kan. 393, 394, 227 Pac. 790; Chaput v. Demars, 120 Kan. 612, 244 Pac. 1042; and State, ex rel., v. Storey, 144 Kan. 311, 315, 58 P. 2d 1090.) Hence, the finding pointed out falls far short of establishing that plaintiff was absent from Kansas during the time mentioned. There is a further reason why the statute was not tolled. The intervenor’s action was for the purpose of having a constructive trust declared in the land in his favor. He also asked that the deed be reformed to convey an ündivided one-tenth interest in the land. He based these prayers on the alleged fraud of his father. This sort of an action could have been begun at any time, and constructive service had upon the plaintiff by publication. This court held in Herthel v. Barth, 148 Kan. 308, 81 P. 2d 19, that in such an action the absence of the defendant from the state did not toll the statute, and that the action should have been brought within two years from the time when the cause of action accrued. (See G. S. 1935, 60-306, third.) This action was one to declare a constructive trust to set aside or reform a deed. It was a suit in equity. Apart from any question of statutory limitation, courts of equity will discourage laches and delay in the enforcement of rights. We have concluded that there was such a change of circumstances here, in that the land has depreciated to such an extent that the plaintiff will not realize the amount he put into it, and the plaintiff having paid off a large mortgage in reliance upon the agreement, the above facts, together with the delay in bringing the action, constituted laches. (See Thompson v. Milli kin, 93 Kan. 72, 143 Pac. 430; Rice v. Kilworth, 132 Kan. 418, 295 Pac. 700; Edwards v. Moore, 143 Kan. 447, 54 P. 2d 983, 19 Am. Jur. 339.) We have concluded, therefore, that the intervenor is barred by the lapse of time from maintaining this action. The judgment of the trial court is reversed with directions to render judgment for the plaintiff.

The opinion of the court was delivered by Wedell, J.: This is a workmen’s compensation case. The commission and the district court found in favor of the claimant. Re spondent has appealed from the judgment of the district court on two grounds. The first ground is that respondent’s business constitutes an agricultural pursuit or an employment incident thereto, and is therefore exempt from the operation of the compensation act under the provisions of G. S. 1935, 44-505. The second ground is that respondent had not continuously employed five or more men for more than one month at the time of the accident as required by G. S. 1935, 44-507. Claimant contends respondent was engaged in engineering work as that term is defined in G. S. 1935, 44-508 (g). Claimant lost his left hand in the operation of a cement mixer while working for respondent and while the latter was constructing a cement cap on its diversion dam, the dam being an essential part of its irrigation system. Respondent is a $250,000 Kansas corporation. Its shareholders are farmers who are furnished water by respondent for irrigating purposes. A maintenance charge is assessed against the lands of the shareholders. The purposes of the corporation, as disclosed by its charter, are: “To acquire, provide for, and to distribute to the lands of the shareholders, as herein provided, an adequate supply of water for the irrigation thereof; to divert, store, develop, pump, carry and distribute water for irrigation of the land to which the shares of stock are now or may become appurtenant, deriving the same from all available sources of supply; to construct, purchase, lease, condemn or acquire in any manner whatsoever, and to own, use, sell, tansfer, convey, maintain and operate any irrigation works, structures, telephone systems, electric or other power plants and transmission lines, and property, both real and personal of every kind whatsoever, necessary to or appropriate for the accomplishment of any of the purposes of this organization; In speaking of respondent’s method of operation in supplying the shareholders with water, the trial court, in a memorandum opinion, said: “It takes water from the Arkansas river by means of a diversion dam in Kearny county and by means of one or more main irrigation canals and laterals ■distributes water for irrigation purposes to an area comprising 10,000 acres of land in Finney county. Its works are necessarily extensive and involve ‘building work’ and ‘engineering work’ as these terms are defined in the workmen’s compensation act (G. S. 1935, 44-508). Its function is to acquire water and through its system of canals and laterals to convey it to the lands of its stockholders where it is used for irrigation. It serves agriculture, but in the ■opinion of the court it is not agriculture. It is not an incident to agriculture; ■no more than the business of the manufacturer of farm implements would be an incident to agriculture. In fact, the business of the respondent is not an ■‘incident’ to anything. It is an institution in itself. No part of its business is ■to cultivate lands or to grow crops, or to raise livestock. The finding and opinion of the court is that the respondent is not exempt from the operation of the workmen’s compensation act on the ground that it is an agricultural pursuit or an incident thereto.” In 1 Honnold on Workmen’s Compensation, 194, the applicable principle is stated thus: “The purpose for which the work was being done determines its character. Plowing is commonly farm labor, as is also the clearing of brush and shrubs to prepare land for cultivation. But if done to make the land ready for railroad construction, or for the construction of expensive reservoirs, dams, or canals for irrigation purposes, the workmen so engaged are not engaged in farm labor.” In Mann v. Locke and Lockeford Protection District, 2 Cal. I. A. C. 433, it was held: “Where an employee of a farmer was clearing a certain levee in a farmer’s protection district, under the superintendence of the protection district foreman, for the purpose of preparing the ground to be raised two feet by scrapers, thus enabling the farm owners to safeguard their lands against overflow, and a willow branch struck the employee in the left eye, permanently blinding it, held, that the employee was not engaged in farm labor within the meaning of the compensation act.” (Syl. If 1.) In Matney v. Azusa Irrigating Co., etc., 2 Cal. I. A. C. 893, it was held: “The impounding and distributing to farmers of water for irrigating purposes is not farm, dairy, agricultural, viticultural or horticultural labor, and an employee of a corporation engaged in such an occupation is subject to the compensation act. Following case of Mann. v. Lockeford Irrigation District.” (Syl. if 1.) In Feehan v. Tevis, 2 Cal. I. A. C. 452, it was held: “Where, an employee whose regular trade was that of a carpenter was employed on a farm to do carpentry and other work and met with an accident while actually doing carpenter work, at carpenter’s wages, in the construction of a dam for an artificial lake, held, that such work was not farm labor and that the employer is hable for the disability resulting from such accidental injury.” (Syl. If 1.) Respondent urges it is not organized for profit. In the case of State, ex rel., v. Sessions, 95 Kan. 272, 147 Pac. 789, the question arose as to whether certain incorporated cooperative societies were subject to the payment of annual corporation fees. It was there held: “An incorporated cooperative society organized for the purpose of providing wires for connection with a telephone exchange, or of maintaining a system of irrigation, for the benefit of its members, is a corporation ‘operated for pecuniary profit,’ ‘doing business for pay,’ within the meaning of those phrases as used in the act referred to.” (Syl. ft 7.) (Italics inserted.) In the opinion it was said: “The McPherson Rural Telephone Company and the Kearny County Farmers’ Irrigation Association ask the return of the fees respectively paid by them,, on the ground that they are within the exemption extended to ‘corporations which are not organized or operated for pecuniary profit which are not doing business for pay.’ (Laws 1913, ch. 136, § 1.) They exist under the statute providing ‘That twenty or more persons in this state may organize and incorporate a cooperative society or company in the manner and form provided by law in other cases, for the purpose and to the end of more successfully promoting and conducting any industrial pursuit.’ (Gen. Stat. 1909, § 1904.) They have no capital stock, receive no pay, declare ho dividends. The one maintains a line of wires connecting with a telephone exchange, the other a system of irrigation. Each is designed for the material advantage of its members, who have chosen to adopt this particular form of incorporation as adapted to their needs. The essential purpose and the ultimate effect are the same as though the corporation required the members to pay for the use of the wire or the water, making the charge just enough to meet the expenses of maintenance. The organizations are in a sense operated for pecuniary profit, as distinguished, for' instance, from moral profit. They in a sense do business for pay, as distinguished from doing it from benevolence. We think, in the absence of a more explicit exemption, they should be required to make payment for the privilege of corporate existence.” (p. 279.) (Italics inserted.) We think the trial court correctly held respondent could not escape liability for compensation to its injured workmen on the theory its trade or business constituted an agricultural pursuit or an employment incident thereto within the meaning of G. S. 1935, 44-505. In order to uphold the judgment it is unnecessary to treat the question of whether respondent’s trade or business was “building work.” Respondent’s trade or business, according to the purposes of its charter and the actual work being performed, was clearly engineering work -which G. S. 1935, 44-508 (g) defines as follows: “ ‘Engineering work’ means any work in the construction, alteration, extension, repair or demolition of d . . . dike, dam, reservoir, ...” Concerning the number of workmen continuously employed for a month prior to the accident, the evidence was conflicting. This court, of course, reviews the record only for the purpose of ascertaining whether there is competent evidence which supports or tends to support the findings and it is not concerned with evidence which tends to contradict or actually contradicts the findings made. (Smith v. Cudahy Packing Co., 145 Kan. 36, 64 P. 2d 582; Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79.) Moreover, respondent’s own evidence left considerable room for reasonable inferences that the necessary number of men were employed for more than a month prior to the date of the accident. On the subject of inferences this court in Shay v. Hill, 133 Kan. 157, 299 Pac. 263, said: “ . . . The function of this court is limited to determining if there was evidence, whether opposed or not, warranting a reasonable inference, although a contrary inference might reasonably be drawn, to sustain the judgment of the district court.” (Syl. ¶ 1.) In Peoples v. Condie-Bray Glass & Paint Co., 121 Kan. 657, 249 Pac. 603, it was said: “Under all the circumstances the inference may reasonably be drawn that the defendant had the requisite number of men on the job for more than a month at the time of the accident, to bring it within the provisions of the compensation act.” (p. 658.) The trial court was the finder of the facts, and in view of the record, we cannot say the trial court erred in finding the requisite number of men were employed for the necessary period of time. The judgment is affirmed.

The opinion of the court was delivered by Allen, J.: This is an original proceeding in mandamus. Annie M. P. Bundy, a single woman, sometimes known as Annie Mary Bundy, was the annuitant in two certain annuity policies issued by the Equitable Life Assurance Society of the United States, hereafter referred to as the society. These policies were alike as to their terms, and although issued on different dates, were effective as of the same date, and generally only one policy need be noticed. The annuitant died and shortly thereafter the society issued its check for $6,106.35 payable to the order of the executor of her estate and to Kansas University, Lawrence, Kan., for the benefit of the Fine Arts Department. This check came into the possession of Karl Klooz, the bursar of the university. The executor, contending it was entitled to the check and the proceeds thereof, as assets of the decedent’s estate, made demand on the bursar that he endorse and deliver the check to it. The university contending it was entitled to the proceeds, the bursar refused. Thereupon the executor brought this action making parties defendant the bursar of the university, the members of the board of regents of the university, and the society, and to compel the bursar to endorse the check and to deliver it to the executor. The society answered, admitting issuance of the policies and the death of the annuitant; that it had determined its liability and issued its check as above mentioned; that the check had not been presented for payment, and that it had been at all times and was now, ready and willing to honor it when produced in usual course; that as to matters of difference between the executor and the other defendants it had no knowledge and was not concerned; that the face of the check is its total liability in the premises; that it was ready and willing to turn over the proceeds of the check upon proper endorsement, and that it should be relieved of any and all further liability under the annuity policies, and it prayed for relief accordingly. The executor and the defendants other than the society have filed an agreed statement of facts covering all matters in issue and some collateral matters, the competency of which, as evidence, is presented in the briefs. As has been indicated, the question is who is entitled to the proceeds of the policy now represented by the check which the executor seeks to have endorsed and delivered to it. That requires an examination of the policy. The policy was dated July 17, 1931, and by it the society agreed to pay to Annie M. P. Bundy a life annuity, subject to conditions stated, in monthly payments of $22.35 (this referring to one policy only) beginning on the anniversary of the register date of the contract (elsewhere shown to be July 13, 1931), upon which the annuitant’s age at nearest birthday was sixty-five years, but at any time prior to the commencement of the payments, the annuitant might elect to receive either a life annuity, according to certain schedules, or a refund annuity according to certain other schedules, and that— “If the annuitant dies prior to the due date of the first annuity payment hereunder, the society will, upon receipt of due proof of the annuitant’s death, provided premiums have been duly paid and this contract is then in force and is then surrendered properly released, pay to the annuitant’s executors or administrators beneficiary (with the right to the annuitant to change the beneficiary or assign this contract) a death benefit as set forth in the provision entitled ‘Death Benefit’ on the fourth page hereof.” (All of the above is printed in the policy except the italicized portion, which is typewritten.) At the appropriate place in the policy are endorsements showing that on May 21, 1934, the “bene ficiary for death benefit” was changed to “Fine Arts Department of Kansas University, Lawrence, Kansas,” and that on October 10, 1934, it was changed to— “Kansas University, Lawrence, Kansas, for the benefit of the Fine Arts Department. It is understood and agreed that the Equitable Life Assurance Society of the United States shall not be responsible for any failure of the said university to perform its duties as'Stated nor for the application or disposition of any moneys paid to said university and such payment shall fully discharge the said society for the amount so paid.” Under the heading “annuity payments” it was provided: “The date of the first annuity payment will be the anniversary of the register date of this contract nearest to the birthday upon which the annuitant attains the age elected for commencement of annuity payments. Annuity payments will be made monthly thereafter during the lifetime of the annuitant and shall terminate with the last payment preceding annuitant’s death; provided, however, that where the annuitant has elected a refund annuity,” etc., making further provisions not now material, and showing schedules of amounts of monthly payments at certain ages under both life annuity and refund annuity. Then follow provisions with reference to determining the amount of the death benefit, showing, by attached schedules, that during the sixth contract year the death benefit for each premium unit was $593, and during the seventh year was $705. (The contracts before us covered ten premium units.) We need not notice the options on surrender or lapse, for neither occurred, nor the other provisions, for they are not helpful here. The record discloses that Annie M. P. Bundy was born September 27, 1872, that she would have been sixty-five years of age on September 27, 1937, and that the anniversary of the register date of her policy, July 13,1931, closest to her sixty-fifth birthday was July 13, 1937. Although the record discloses that she had a number of conversations with an agent of the society looking toward a change in certain provisions of the policy that would defer payment of benefits to her, no change was in fact effected, and we shall ignore that portion of the agreed facts. Shortly after Miss Bundy made the second change of beneficiar}'' and on October 19, 1934, she wrote a letter to Kansas University “Attention Dean of Fine Arts Department,” stating that any proceeds payable at her death from the two policies should be devoted to the creation or development of a fund to provide tuition for worthy and deserving students in piano, to be chosen .as provided in the letter. This letter was witnessed by two persons. The record does not disclose that any attempt was made to have this document admitted as a will, a codicil to a will or as a part of her will. On June 24, 1937, and prior to the anniversary of her policy and its register date, Annie M. P. Bundy left her home in Topeka on a trip to England. She died at Southampton, England, on July 24, 1937. During the life of the policy the annuitant paid the several annual premiums due from her and the policy was in full force at the date of her death. So far as the record shows, she had never suffered any lapse nor had she attempted in any way to surrender the policy. She had never made any election to take refund annuities in lieu of life annuities, as she might have done under the policy. After the death of Miss Bundy, her will, which named the plaintiff as executor, was duly admitted to probate and plaintiff was appointed to execute the same. Under the terms of her will, no bequest was made of any benefits under the policies involved, and if the proceeds are paid to her estate, they will ultimately pass to the residuary legatees, the University of Kansas or its Fine Arts Department not being included therein. The society was duly advised of the death, and under date of September 30, 1937, it drew its check payable to the order of National Bank of Topeka, Topeka, Kan., as executor of the estate of Annie M. P. Bundy, deceased, and Kansas University, Lawrence, Kan., for the benefit of the Fine Arts Department in the sum of $6,10.6.35, and stating that when receipted by the payees in the space provided on the back, “this voucher becomes an endorsed check.” The endorsement to be signed was an acknowledgment of receipt of all claims due under the two policies, giving their numbers, as detailed in the statement of account delivered with 'the check, the statement to be retained. The statement attached to the check is entitled, “Statement of account for death claim on the life of Annie M. P. Bundy.” The account refers to each policy by number, shows “death benefit” and amount in each case (which amounts are based on the policies having determined after July 13, 1937), gives credit for certain dividends and interest and charges premiums due July 13, 1937, and arrives at the balance represented by the face of the check. There is no dispute whether the check is for the correct amount under any theory and we shall not discuss the various items of debit and credit in the statement. Insofar as the society is concerned, it may have believed that the course of its dealings with Miss Bundy created, if not a legal, at least a moral obligation which it should recognize. It is sufficient here to say that it recognized a liability either to the executor or to the university in the amount represented by its check to them jointly. The question is as to which should the proceeds go. But in any discussion of the arguments advanced by either party,-we must take note of matters which might possibly have been available as defenses to the society had it denied liability, but without reflecting in any way on the course it pursued. The executor’s brief is devoted principally to its contention the university is not entitled to the proceeds of the check. It contends the university may recover only as it may be entitled to death benefits under the policy; that the provision for the payment of death benefits is conditioned “If the annuitant dies prior to the due date of the first annuity payment hereunder,” etc., the death benefits will be paid the designated beneficiary; that by other terms of the policy the due date of the first annuity payment was July 13, 1937, and that as the annuitant did not die until after that date, there were no death benefits due and the university takes nothing. Following out that strictly literal method of interpreting the contract, the following conclusion would be reached. The contract provided that when the last monthly payment of life annuity prior to the death of the annuitant had been paid, the society’s obligation was ended. The first monthly payment of life annuity was due July 13, 1937. The annuitant had never elected to receive any optional benefit, and was then entitled to receive the first installment of the life annuity, but died during the first month and without receiving that first installment. Under such reasoning, the executor would be entitled to recover the first monthly installment, totaling on both contracts the sum of $44.70, and upon that payment being made, the company’s obligation was fully satisfied and terminated. Under such a theory, the executor had no greater interest and would not be concerned if the society saw fit to pay additional benefits to any other person. There is nothing in the pleadings or in the briefs, however, which leads to a conclusion that any recovery to the executor is to be so limited. Nor should the matter be disposed of in such fashion. The university, placing some weight on the negotiations looking toward some change in the contracts, but which were never consummated, and a statement of which we have purposely omitted, takes the position that as a result the society was placed in a position where it could not begin annuity payments, the thirty days’ grace in which the annuitant could have paid an additional premium had not expired, and there being uncertainty, the university and not the executor is entitled to the proceeds of the check. The disposition to be made of the proceeds represented by the society’s check presents some difficulty. No case is 'cited in the briefs which we find helpful. The record clearly discloses that the society recognizes liability, and we think it a fair conclusion that it was in doubt as to who was entitled to the benefits, or it would not have made its check to both payees. But in making that check it adopted a course of action which is pertinent and persuasive. Dependent on the annuitant’s surviving to the anniversary of the register date of the policy nearest to her sixty-fifth birthday, her right was fixed to receive monthly payments of life annuity so long as she lived or on her timely election to receive monthly payments of refund annuity, which would be smaller in amount than the life annuity, but which would continue after her death. If she died before the due date of the first annuity payment, stipulated death benefits were to be paid. Dependent on these various factors, the society’s liability might be great or small. The provision for the conditional payments of death benefits was not alone a provision for the benefit of the annuitant; it was likewise a limitation on the liability of the society and one which so far as the society was concerned it might waive. In drawing its check, the society attached the statement of account to which reference has been made. From the recitals therein it is apparent the society treated the admitted liability as one for death benefits. We pause to consider whether there could have been liability for the amount of the check on any other theory. No one claims the annuitant had made an election in writing that amounts paid by her were to be returned as refund annuities to her if living, to her executor if she were dead, or to anyone else. Viewed from the angle of life annuities, and considering the difference in the amount thereof due at the time of the death of the annuitant and the amount of the check, it is clear that the payment was not on account of any life annuity. Apparently recognizing that the form and content of the statement would tend to solve the difficulty, the executor argues that the method followed by the society in computing the amount of the check is not an obstacle to the collection of that check by the executor, saying further the society could have apprehended controversy between the executor and the university and made the check as it did so that no liability would attach to it, and the rights between the two claimants could be settled by judgment of a court, and that— “It had its established good reputation as a guide. Its decision cannot be in question in this case. The society has a well-established reputation for fair dealing with its policyholders. The reasons for its course in making the check as it did should be accepted as wise and honorable.” With that statement we agree, but not with the conclusion of the executor that the method of computation is not an obstacle to collection of the check by the executor. We have taken the space to state in detail the matters presented. Assuming the society had not admitted liability to either the executor or to the university and that it might be doubted that under the literal terms of the contract either could have proved its right to a recovery, the question may be said to simmer down to which is justly entitled, the executor or the university. In our opinion the liability admitted is for death benefits. To such benefits the executor has no right. The university has at least a color of right thereto and is entitled to the proceeds of the check after it has been presented for payment and honored, as the society admits it will be. The check should be properly endorsed by the executor and the university and upon presentment and payment, the proceeds should be paid to the university for the uses indicated in the policy. Plaintiff’s request for a writ of mandamus is denied.

The opinion of the court was delivered by Allen, J.: This was an action by Rose Rumsey against her husband, John L. Rumsey, for alimony. In plaintiff’s petition it was alleged that the parties were married on August 2, 1926; that they have six children ranging in age from one and one-half years to eleven and one-half years. The defendant is charged with extreme cruelty, gross neglect of duty and adultery; that defendant has abandoned plaintiff, “going to parts unknown, taking with him another woman.” It is alleged that defendant is the owner of an undivided one- tenth interest in section 23, township 11 south, range 17 west, Ellis county, Kansas. Plaintiff asked for alimony, suit money and attorney fees, and that she be given the custody of the minor children. She also prayed that the interest of the defendant in the above-described real estate, or such part thereof as to the court should seem meet and just, be alocated to her as alimony. Thereafter the plaintiff filed an amended or supplemental petition wherein plaintiff alleged that after the commencement of the action, and on August 16, 1937, three certain mineral deeds from John L. Rumsey to the defendant J. R. Harris, and purporting to convey certain interests in the land in section 23, above described, were filed for record in the office of the register of deeds in Ellis county. The amended petition charged that the defendants, John L. Rumsey and John R. Harris, fraudulently and illegally entered into a scheme or conspiracy to defraud plaintiff of her interest in such property; that as a part of such fraudulent scheme the defendant Harris was to induce plaintiff to consent to a divorce; that it was the intent and purpose of Harris in entering into such fraudulent conspiracy to cheat, swindle and defraud the defendant John L. Rumsey and plaintiff out of the mineral rights and property in such land. Plaintiff asked that such mineral deeds be set aside and canceled. In the alimony action the Investors Royalty Company, Inc., prayed for and was granted, leave to intervene. The petition of the intervenor alleged that on the 19th day of July, 1937, the defendant John L. Rumsey, for a valuable consideration, sold and conveyed by three separate instruments certain interests in the oil, gas and other minerals in section 23, above described, to J. R. Harris. Intervenor alleged that thereafter and on August 3, 1937, for a valuable consideration, it purchased all of the interest of Harris in and to said land, and received proper grants and assignments therefor, and that such instruments were on August 16, 1937, duly recorded in the office of the register of deeds in Ellis county. Intervenor asks that its interests so acquired be protected by proper orders and decrees of the court. The plaintiff in her answer to the petition of the intervenor alleges that the intervenor had full notice and knowledge of the fraudulent and illegal conspiracy of John L. Rumsey and J. R. Harris, and of the fraudulent purpose of Harris, denies that inter venors paid an adequate consideration f.or the interests so acquired, and asks that the transfers from Harris to such intervenors so recorded be canceled. The petition of plaintiff was filed on July 30, 1937. On the same date an affidavit for an attachment was filed by the plaintiff, and on that date levy of the attachment on the land of defendant John L. Rumsey above described was made by the sheriff of Ellis county. The defendant John L. Rumsey filed an answer in which he denied the allegations of plaintiff’s petition, except that he admitted he was the owner of an undivided one-tenth interest in section 23, above described, and alleged that his interest therein was of the value of $35,000. Service was had on the defendant Harris by publication. The court returned findings of fact and by its .decree awarded all of the interest'of defendant John L. Rumsey in the land in section 23, above described, to the plaintiff, and decreed that the defendant John L. Rumsey and all persons whomsoever claiming by, through or under him be forever barred, estopped and enjoined from claiming or asserting any right, title, interest or estate therein, and that plaintiff should have the right to convey and dispose of such real estate without the consent of the defendant. Attorney fees in the sum of $1,000 were allowed. On this appeal many errors are specified. The action was for alimony without divorce. This form of action is expressly allowed by our statute G. S. 1935, 60-1516. The charges in the petition as to the character and conduct of the defendant John L. Rumsey were sustained by the evidence. The court found that he was “a ne’er-do-well, irresponsible, unreliable husband and father.” That he abandoned his wife and children; that he associated with and traveled from state to state with disreputable women is not denied. The decree for alimony was justified by the record before us. Were the deeds from John L. Rumsey to Harris executed with the intent and purpose to defraud the plaintiff? The findings of the court on this question are, in part, as follows: “8. That said J. R. Harris planned and designed to cheat, swindle and defraud John Rumsey and to defraud Rose Rumsey, the plaintiff, out of her marital rights in and to the property owned and controlled by her husband, at the time of his desertion of July 20, 1937. “10. That said deeds executed in Hutchinson, Kan., by John L. Rumsey to J. R. Harris, exhibits in this case, were not delivered to J. R. Harris by John L. Rumsey for the purpose and with the intention of conveying title to the real estate described therein to J. R. Harris, and no consideration for said deeds or conveyance passed from J. R. Harris to John L. Rumsey. “11. That the design and purpose of John L. Rumsey in executing and delivering said deeds to J. R. Harris was to force the plaintiff to seek and procure a divorce from said John L. Rumsey, and as an inducement for her to do so and to join in the execution of the deeds to J. R. Hams she was to receive, if necessary to procure her to obey the will of John L. Rumsey, one-half of John L. Rumsey’s mineral interests in the land described in the deeds; that this proposition was not submitted by John L. Rumsey or anyone for him to the plaintiff, Rose Rumsey, and Rose Rumsey was not given any opportunity to execute said deeds with John L. Rumsey as his wife, or to protect her inchoate interest in the real estate involved in this action.” As there was abundant evidence to support these findings they will not be disturbed on appeal. The decree setting aside the deeds to Harris must be Sustained. It is next asserted the trial court was in error in setting aside . the conveyance from Harris to the intervening petitioner, the Investors Royalty Company, Inc. The president of the Investors Royalty Company, Inc., testified that before dealing with Harris for the Rumsey land he examined an abstract of title to a part of section 23, and that the abstract showed an attachment action against the interest of John L. Rumsey; that he knew the condition of the title at the time he recommended the purchase from Harris; that he knew the attachment suit was pending and that it was an action for alimony. The witness further stated that he had never met Harris prior to August 3, 1937; that he paid out the money to Harris after examination of the abstract. The court found that the value of the royalty interests at the time of the transfer from Harris to the intervenors was $16,100, and the value at the time of the trial on March 28, 1938, was $25,000. Intervenors paid Harris $2,750. The record was certainly sufficient to put an ordinarily prudent person upon inquiry. Under the facts shown by the record it would be difficult for Investors Royalty Company, Inc., to sustain its contention that it was an innocent purchaser for value without notice. But it is not necessary to determine the claims of the intervenor on these equitable considerations alone; any right, title or interest now asserted by intervenor was acquired while the alimony suit was pending and undetermined. By the very terms of the statute no interest could be acquired as against the plaintiff. Our Us pendens statute, G. S. 1935, 60-2601, provides: “When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject matter thereof as against the plaintiff’s title; but such notice shall be of no avail unless the summons be served or the first publication made within sixty days after the filing of the petition. . . .” The section applies to actions for divorce and alimony. It was so held in Wilkinson v. Elliott, 43 Kan. 590, 23 Pac. 614. The first paragraph of the syllabus reads: “Where the wife files a petition asking for a divorce and for alimony, in which she definitely describes certain real estate of the husband, and prays that it may be set apart and decreed to her as permanent alimony, the doctrine of lis pendens will apply; and anyone who purchases such property during the pendency of the action will be bound by the judgment subsequently rendered therein.” See, also, Kremer v. Schutz, 82 Kan. 175, 107 Pac. 708; Graham v. Popple, 129 Kan. 735, 284 Pac. 394. As the intervenor received the conveyance from Harris after the alimony action had been brought, it is bound by the decree therein. (Bessette v. Dennis, 95 Kan. 119, 147 Pac. 1104; Dever v. Bank, 100 Kan. 365, 164 Pac. 166; Sigma Tau Gamma v. Citizens B. & L. Ass’n, 145 Kan. 840, 67 P. 2d 582.) A question is raised as to the power of the court to award specific real property to the plaintiff for alimony. This question was before this court in Osman v. Osman, 86 Kan. 519, 121 Pac. 327, and it was there held as stated in the syllabus: “Under the statutes of this state real estate of the husband may be set apart to the wife in actions for alimony alone, as well as in actions for divorce and alimony.” See, also, Wohlfort v. Wohlfort, 123 Kan. 142, 254 Pac. 334. Intervenor further contends that the interest it acquired under the mineral deeds “is personal property, can be conveyed by the husband without the wife joining in, is not affected by record title, and that there is no duty or obligation of any kind to make any investigation whatsoever with reference to its purchase.” Our lis pendens statute above quoted provides that “no interest can be acquired by third persons in the subject matter” thereof against the plaintiff. It is not limited to real property. It is said that the trend of the American decisions is toward the application of lis pendens to personal property, with the exception of negotiable instruments and articles of ordinary commerce sold in the usual way. (38 C. J. 15.) It is also to be observed that under our statute G. S. 1935, 60-901, the plaintiff in a suit for alimony may, at or after the commencement thereof, have an attachment against the property of the defendant. The evident purpose of this statute was to give to the plaintiff in a suit for alimony the same remedy that is given to creditors where a debtor has sold and conveyed or is about to sell and convey his property with the fraudulent intent of hindering, delaying, cheating or defrauding his creditors. In Small v. Small, 56 Kan. 1, 14, 42 Pac. 323, it was stated that a wife in a suit for alimony was in the position of á quasi creditor. In a suit for alimony the right of the wife to have an attachment against the property of the husband under our statute G. S. 1935, 60-901, is not limited to real property. Any property, real or personal, which the husband has transferred with the fraudulent intent to defraud the wife is subject to attachment. It is therefore immaterial whether the instruments executed by the defendant John L. Rumsey to Harris operated as a transfer of real or personal property, nor is it necessary to determine the nature of the interest created by the mineral deeds. Under the lis pendens statute the intervenor was charged with constructive notice of the rights of plaintiff; from the record it is . clear it also had actual notice. It cannot now complain. It is strenuously contended that the alimony award is excessive. But what defendant is in a position to urge-an abatement of the award? Harris makes no defense, the intervening company paid for the mineral deeds from Harris after notice, and the defendant, John L. Rumsey, by his deeds to Plarris, had transferred all his mineral rights in the land. The trial court has a wide discretion in the allowance of alimony, and its exercise of that discretion, unless clearly abused, will not be disturbed on appeal. (Newton v. Newton, 127 Kan. 624, 274 Pac. 247; Lassen v. Lassen, 134 Kan. 436, 440, 7 P. 2d 120.) And the same rule applies to the allowance of attorney fees. (Deeds v. Deeds, 108 Kan. 770, 196 Pac. 1109; Hipple v. Hipple, 128 Kan. 406, 278 Pac. 33.) Manifestly the alimony to be awarded and the attorney fees that should be allowed depend on the peculiar circumstances of the case. On the record before us we cannot say that the action of the trial court was so inequitable and unjust that this court should interfere The judgment is affirmed.

The opinion of the court was delivered by Wedell, J.: This was an action for damages predicated upon an alleged slanderous statement. The defendant has appealed from an order sustaining plaintiff’s motion to strike a certain paragraph of his answer. Plaintiff is an attorney, and according to his petition, had been engaged in the practice of law in the state of Missouri for more than five years, had been recently admitted to practice law in the state of Kansas and was engaged m the practice while presenting a claim for damages against the city of Wichita, when the alleged slanderous remarks were made by the defendant. The defendant, city manager, was sitting with the city commissioners, in accordance with his practice, for the purpose of considering claims filed against the city. We are told the instant claim was for damages against the city arising out of claimant’s assault by a city police officer. The petition alleged: “Defendant . . . without provocation, did make, publish, slander and maliciously speak of and concerning the plaintiff the following false and untrue words of and concerning this plaintiff’s profession and avocation, to wit: T have plenty on you,’ ‘I know all about you,’ T can put you where you belong,’ 'We got your record over there,’ meaning the police department, 'All you have been doing is defending a bunch of crooks and poor hoodlums,’ all of which caused the plaintiff public humiliation and embarrassment, whereby this plaintiff has been damaged in the sum of fifty thousand dollars ($50,000).” The answer contained a general demurrer, an admission of the duration and location of plaintiff’s practice, a general denial of all other allegations contained in the petition, and then alleged: 4. “Without waiving his general denial heretofore pleaded of the making of such statements as alleged in this petition, this defendant alleges and states if such statements or any of them were made as alleged in said petition, then in that event said statements were in fact true. 5. “Without waiving his general denial as heretofore pleaded and for further answer, this defendant further alleges and states that if the statements, or any of them, alleged to have been made by him in the plaintiff’s petition, were actually made as alleged, under the conditions set out in the plaintiff’s petition, then in that event the statements were privileged in that this defendant was at that time, and at all times material hereto, the duly appointed, qualified and acting city manager of the city of Wichita. That at the time in question this defendant was sitting with the board of commissioners of the city of Wichita in a regular meeting of said board, in which said board of commissioners were hearing evidence and statements on a claim made by the plaintiff, representing one Harry Wisdom, for damages against the city of Wichita. That this defendant as such city manager in such hearing where the board of commissioners of such city were sitting as a judicial body in determining such a matter, as a public officer, was under obligation to disclose to the commission his opinion of all matters relevant to the matter with which the board was then concerned. 6. “Without waiving his general denial as heretofore pleaded and for further answer, this defendant alleges and states that if the statements or any of them, alleged to have been made by him, in the plaintiff’s petition, were actually made as alleged under the conditions set out in the plaintiff’s petition, then, in that event, they constituted criticism of the activities of the plaintiff, which being those of a public officer of the court were matters of public concern, and the defendant as a public officer, sitting with the board of commissioners under the law, was under obligation to express his actual opinion upon such matters for the reason that such information was material to the cause then pending before the board of commissioners. 7. “That if said statements were made as alleged in said petition that they were relevant to the matters under consideration as alleged in this answer and were either absolutely or conditionally privileged as aforesaid.” Plaintiff moved to have paragraphs five and six of the answer stricken on the ground the averments therein contained were redundant, surplusage and constituted no defense to plaintiff’s cause of action. The motion was overruled as to paragraph five and sustained as to paragraph six. The defendant contends the court erred in striking paragraph number six. Before discussing the merits of the appeal we are confronted with a preliminary question. Appellee suggests the ruling does not involve the merits nor determine the action, and is therefore not an appealable order, and can only be reviewed in this court after final judgment. The real question before us, however, is whether paragraph six of the answer actually pleads a valid defense in addition to those defenses previously pleaded. If it does, then the ruling involves the merits and to the extent of that defense determines the action and is an appealable order. Defendant is entitled to have that question determined before final judgment. Does it constitute a valid additional defense as pleaded? Let us first examine the first five paragraphs of the answer. In addition to the demurrer, the answer denied the alleged slanderous statements were made, and asserted that if they were made they were true. Paragraph five of the answer in substance alleged: If the statements or any of them were made, they were privileged in that (a) defendant was a public officer, the acting city manager; (b) at the time in question defendant was sitting with the board of city commissioners in a regular meeting of the board in which the board was hearing evidence and statements on a claim made by plaintiff for damages against the city; (c) the board was sitting as a judicial body and defendant, as a public officer, was under obligation to disclose to the commissioners his opinion on all matters relevant to the matter with which the board was then concerned. An analysis of paragraph six discloses defendant attempted thereby to plead either facts consistent with another theory of privileged communication or the defense of privileged comment or criticism. (For strict distinction between those defenses, see 36 C. L, Libel and Slander, § 280 [3].) For the purpose of this opinion it is unnecessary to deal with the technical refinements of those distinctions. Irrespective of which of those particular defenses defendant may have intended, it is obvious the defense he attempted to plead was based upon the allegation that plaintiff was engaged in a matter of public concern, and that as an attorney he was a public officer. Prior to paragraph six he had pleaded facts which disclosed the public nature of the claim and the occasion at which the alleged defamatory utterance was made. The only allegation in paragraph six which constituted new matter was the charge that plaintiff was a public officer of the court. All we need to decide in the present action is whether that additional or new allegation in paragraph six constituted a valid defense. In this connection it should be clearly kept in mind that we are not called upon at this stage of the present action to decide what kind of comment or criticism is permitted against persons generally who are engaged in activities in which the public has a concern. Litigants have the right to elect the theories upon which they will prosecute actions or defend them. By paragraph six defendant has elected to plead a defense applicable to communications concerning public officials. It is that defense and none other with which we are now concerned. What is a “public office” and who is a “public officer”? While the authorities are not in complete harmony in defining the term “public office,” or “public officer,” it universally has been held that the right to exercise some definite portion of sovereign power constitutes an indispensable attribute of “public office.” (46 C. J., p. 928, § 206; Wyman’s Administrative Law, p. 163, § 44, Anno. 53 A. L. R. 595; 93 A. L. R. 334; 4 Words & Phrases, 5th Series, pp. 332-334.) In Kingston Associates v. La Guardia, 281 N. Y. S. 390, 156 Misc. 116, in distinguishing between “public office,” and' an “employment,” the New York court said: “There is, however, one indispensable attribute of public office, namely, the right to exercise some portion of the sovereign power. ‘Public office’ has been defined by Mechem in his work on Public Officers, previously referred to (pages 1, 2), as ‘the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exrcised by him for the benefit of the public.’ The author quotes with approval (page 4) the following language of the judges of the supreme court of Maine in Opinion of Judges, 3 Greenl. (3 Me.) 484: ‘We apprehend that the term “office” implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office . . . The power thus delegated and possessed may be a portion belonging sometimes to one of the three great departments and sometimes to another; still it is a legal power which may be rightfully exercised, and in its effects it will bind the rights of others, and be subject to revision and correction only according to the standing laws of the state. An employment merely has none of these distinguishing features.’ In Dawson v. Knox, supra, the same thought was expressed by the appellate division, third department (231 App. Div. 490, page 492, 247 N. Y. S. 731, 734): ‘The duties of a public official involve some exercise of sovereign power — those of a public employee do not.’ In People, ex rel. Hoefle, v. Cahill, 188 N. Y. 489, 494, 81 N. E. 453, 454, the court of appeals quoted with approval the following language of the appellate division in People, ex rel. Corkhill, v. McAdoo, 98 App. Div. 312, 314, 90 N. Y. S. 689, 691: ‘The essential element in a public office is that the duties to be performed shall involve the exercise of some portion of the sovereign power, whether great or small.’ ” (p. 398.) In matter of Dawson v. Knox, 231 App. Div. 490, 492, 247 N. Y. S. 731, it was said: “The holder of a public office is in the employment of the public, but all those who are in the public employment are not public officials and do not hold public office.” (p. 492.) In State, ex rel. Pickett, v. Truman, 333 Mo. 1018, 64 S. W. 2d 105, the Missouri court held a delinquent tax attorney was not a public officer, though his duties were substantially the same as those of a special tax attorney in New Mexico. In McDuffie v. Perkerson, 178 Ga. 230, 173 S. E. 151, 157, the Georgia court, in holding a grand juror was not a public officer, said: “In this state it has been held that ‘An individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises functions concerning the public, assigned to him by law, is a public officer.’ Bradford v. Justices, 33 Ga. 332; Polk v. James, 68 Ga. 128 (2); Wiley v. Sparta, 154 Ga. 1, 14 (114 S. E. 45, 25 A. L. R. 1342); 46 C. J. 928, § 19. In 22 R. C. L. 372, § 2, it is said: ‘Since one who holds an office is an “officer,” it becomes necessary to ascertain what, properly considered, is an “office.” The definitions of this word, as given by the text writers and courts, are not in entire harmony. Blackstone (2 Com. 36) defines an office as the right to exercise a public or private employment, and to take the fees or emoluments thereunto belonging. Thus it has been said that every one who is appointed to discharge a public duty and who receives a compensation in whatever shape, whether from the crown or otherwise, is a public officer. A distinction is drawn between public and private officers, the former being those whose functions and duties concern the public. The term “public officer” involves the idea of tenure, duration, fees or emoluments, and powers, as well as that of duty. These ideas or elements cannot properly be separated and each considered abstractly. All, taken together, constitute an office. But it is not necessary that an office should have all of the above-named characteristics, although it must possess more than one of them, and the mere fact that it concerns the public mil not constitute it an office.’” (p. 233.) (Italics inserted.) In State v. Fernandez, 40 N. M. 288, the New Mexico court held that a special tax attorney employed by the state tax commission was not a public officer, and after reviewing the various attributes of a public office, said: “But, of these elements, any or all may exist in the case of an ordinary employment except the distinctive one that sovereign power must be vested in the position by the legislature, else it is not a public office. It is therefore .useless to consider other so-called elements of public office when it can be definitely stated that no sovereign power is vested in the special tax attorney.” (p. 297.) ■ (Italics inserted.) An attorney is an officer of the court, but he is not an officer of the state, and the admission of a person to practice as an attorney is not an appointment to public office. (Throop on Public Officers, pp. 14, 15, §§ 14, 15.) An attorney or counsellor does not hold an office in a constitutional sense, but exercises a privilege or franchise. (Matter of Burchard, 27 Hun [N. Y.] 429; Hamilton v. Wright, 37 N. Y. 502; Ex Parte Garland, 4 Wall. [U. S.] 333; Cohen v. Wright, 22 Cal. 297; Ex Parte Gregory Yale, 24 Cal. 241.) On the subject of an attorney’s relationship to the public and to the courts, appellant directs our attention to the Preamble to the Canons of Professional Ethics, adopted by the American Bar Association, which reads: “In America, where the stability of courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the republic, to a great extent, depends upon our maintenance of justice, pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men.” We need not dwell in the instant case upon the high purpose and duties of courts generally, nor upon the solemn duty of members of the legal profession, to maintain and improve the processes of administering justice. The existence of that duty must be and is conceded by all who are worthy of the privilege conferred upon them. Every lawyer who is a credit to the legal profession will freely concur in the belief and conviction that it is his duty to exercise his privilege, license or franchise, in such manner as to advance the ends of justice and not so as to imperil or thwart them. That duty, however, does not arise from the fact he has been elected or appointed to “public office,” for he has not been made a “public officer.” That duty inheres in the faithful exercise of his private right and personal privilege to participate in the processes of administering justice. It is that duty which constitutes him an officer of the court. Failing in that duty through willful abuse of the privilege, he will be subjected to judicial discipline or disbarment. That duty, however, which inheres in his right to engage in the private practice of law does not constitute him a “public official,” or a “public officer,” within the constitutional or statutory sense of the term. In a disbarment proceeding, In the Matter of H-S-, 229 Mo. App. 44, 69 S. W. 2d 325, the Missouri court held: “A license to engage in the practice of the law is not granted as of right, but as a privilege granted the lawyer by the state and comes burdened with conditions of subsequent good behavior and professional integrity.” (Syl. If 4.) “A lawyer is not a public officer in the constitutional or statutory sense of the term, but he is an officer of the court and as such owes a definite obligation to the public as a whole in the matter of the proper administration of justice.” (Syl. ff 3.) To the same effect is the even more recent case, In re Lacy, (Mo. App.) 112 S. W. 2d 594, in which the Missouri court again held: “An attorney is not 'public officer’ in constitutional or statutory sense, but is ‘officer of court’ obligated to public for proper administration of justice.” (Headnote, If 15.) The motion to strike paragraph six of the answer was properly sustained. The judgment is affirmed.

The opinion of the court was delivered by Dawson, C. J.: This was an action on a promissory note and to foreclose a mortgage given as its security. Judgment was entered in favor of plaintiff in conformity with the literal terms of the instruments executed by the makers. That the judgment should have been quite different in various respects is the subject matter of this appeal, to an understanding of which the pertinent and incidental facts must be related at some length; In 1908 one George T. Holland, of Harper county, died testate, seized of a half-section farm in Kingman county. He was survived by his widow, two sons, and four grandsons who were the children of a deceased daughter. By his will he gave a life estate in his real property to his widow, who died long ago. His remainder estate was devised thus: One-third to George C. Holland (son). One-third to Joseph T. Holland (son). One-twelfth each to Roy M. Shane, Maurice E. Shane, Percy N. Shane and Roland B. Shane (grandsons). In 1919 George C. Holland and wife sold and conveyed their interest by warranty deed to Roy M. Shane for the sum of $6,666, which acquisition, added to his inherited share, made him the owner of a five-twelfths interest in the farm. To obtain the money to buy his uncle’s share he borrowed $5,500 from one Zacharias and borrowed $1,000 from his brother, Percy N. Shane, and made up the balance out of his own resources. To secure the repayment of the Zacharias loan he and his uncle, Joseph T. Holland, and wife, and his brothers, Maurice E. Shane and Percy N. Shane, executed their promissory note to Zacharias for $5,500 and likewise executed a mortgage on the half section of land about which we are presently concerned. The youngest of the Shane brothers was then a minor and had no part in the transaction. About the same time, Roy M. Shane made an oral agreement with his brothers and with his uncle Joseph to occupy the land as their tenant upon condition that he would attend to the upkeep of the improvements, pay the taxes for the use of its pasture land, and deliver to each of them their proportionate rental shares of one-third of the crops grown on the tilled land. On or about May 12,1921, an application (a three page document numbered 28,597) was presented to the Federal Land Bank of Wichita for a loan of $10,000. It recited that it was being made by Roy M. Shane through the Chikaskia Valley National Farm Loan Association, of Adams, Kingman county, Kansas. Included in the application was a questionnaire to elicit pertinent facts concerning Roy M. Shane — that he was 30 years old, married and had an infant daughter, by occupation a farmer and stockraiser, resided on the half-section farm in controversy, farmed it himself, listing his personal assets, horses, colts, cows and stock cattle, hogs and poultry, his current acreage of wheat, oats, kaffir and feed crops, and stating that his (Roy M. Shane’s) total indebtedness was $5,500 on mort gaged real estate and other indebtedness of $1,000; and that he was carrying a $5,000 life insurance policy.. Included also in the application was an inquiry as to the purposes of the loan applied for, which was answered thus: “To pay off present mortgage and by [buy] out as many of my brothers as possible.” “What date is money desired? [Answer] October 1, 1921.” The application contained the following: “If the title to this land is held jointly, authority is hereby given Roy M. Shane to become a member of this association [Chicaskia Valley National Farm Loan Association], and to act for and on behalf of the other joint owner or joint owners. ... If the'title is held by two or more joint owners, all joint owners must sign application.” The appended signatures were these: “Dated May 12, 1921 Roy M. Shane “Witness, A. M. Shoemaker J. [Joseph] T. Holland, Percy N. Shane Maurice E. Shane.” At the date of this application there was in Kingman county the usual local federal farm loan association which is a part of the routine machinery set up by the federal government for the effective • administration of the' federal farm loan act. One B. C. Morrison was its secretary-treasurer, and correspondence with the Federal Farm Loan Bank in respect to the loan applied for was conducted by Morrison in his official capacity. On September 1, 1921, Morrison was succeeded by O. J. Fisk- as secretary-treasurer, and the correspondence relating to the pending loan transaction was thereafter conducted by him. Some time after the Federal Farm Loan Bank received the application described above, it appears that the bank signified its willingness to make a loan for $8,000. On June 30, 1921, Morrison, secretary-treasurer of the local loan association, wrote to the bank: “In regard to Roy M. Shane’s loan through the Chikaskia Valley Assn, here, he accepts the reduction of his loan from $10,000 to $8,000. B. C. Morrison, Secy. Treas.” Later, on August 25, 1921, Morrison in his official capacity again wrote to the .bank thus: “In answer to your letter attached in regard to Roy M. Shane’s loan, will say that Mary T. Holland is deceased, and the heirs are all willing to sign deed to land favor of Roy M. Shane, but the youngest heir will not be of age till October 19th, this year, and Mr. Shane would like to fix up the deal some way, so he would not have to pay another six months interest, as the interest is due October 1st. “J. T. Holland is guardian of the youngest heir, Percy N. Shane [Roland B. Shane].” This uncompleted transaction was held in abeyance until Roland B. Shane attained his majority on October 19, 1921, after which O. J. Fisk, successor to B. C. Morrison, as secretary-treasurer of the local loan association, wrote to the bank thus: “October 22, 1921. “In re: Appl. No. 28597-501 — Roy M. Shane. “The last heir in this case is of age and we are now ready to close this loan. If you will send the proper mortgage, note and necessary papers we will complete the same. “We have advanced fifty-five hundred dollars in this case to pay off the mortgage and we need the money. Anything you may do to help us through with the loan will be greatly appreciated.” Without further ado, and without execution of conveyances to Roy Shane by his fellow tenants in common, or execution to the plaintiff bank of any obligation by them or any of them, on November 8, 1921, Roy M. Shane and wife executed their promissory note to the bank payable in 33 years, and to secure its payment they, at the same time, executed to it a mortgage on the half section of land in controversy. The amount of the loan thus procured was disbursed as follows: The plaintiff bank, on instructions from Roy M. Shane, paid $5,500 to the Sunflower State Bank of Wichita, correspondent of the Farmers State Bank of Adams, Kingman county, which had temporarily advanced that sum to pay off the $5,500 mortgage held by Zacharias. Other disbursements of the proceeds of the loan were— Investment in federal land bank stock.................. $400.00 Expense of abstract and recording...................... 7.70 Balance paid by check of federal land bank to O. J. Fish, secretary-treasurer, and Roy M. Shane jointly, November 15, 1921....................................$2,092.30 Out of this last remittance Roy M. Shane repaid to his brother Percy N. Shane the $1,000 he had borrowed from him when he purchased the interest of his uncle, George C. Holland, in 1919. The remainder of the proceeds of the loan were used by Roy M. Shane in his personal and business affairs. Thereafter for a number of years Roy M. Shane paid the interest and requisite installments on this mortgage indebtedness, paid the taxes on the property, and paid crop rent to his fellow tenants-in-eommon until 1929, following which he seems to have met with reverses of various sorts and paid no rent thereafter. In 1930 Joseph T. Holland died testate. By his will he devised a life estate in all his property to his widow, Helen M. Holland, with full power to alienate it during her lifetime, with remainder to their children. Shortly after her husband’s death she asked Roy B. Shane for an accounting of rents on her husband’s interest in the farm occupied by Roy, and on which plaintiff held the mortgage of present concern. Some years later Roy M. Shane got into some financial difficulty from which it was imperative that money be speedily raised to extricate him; and Mrs. Helen M. Holland, who was his aunt by marriage, took a hand to bring that about. A local banker, L. D. Banta, became interested and she sold and conveyed to him the interests of herself and of her children for $1,500; and she also negotiated and effected a sale to him of the interests of Maurice E. Shane, Percy N. Shane and Roland B. Shane at proportionately the same price — $375 each. About the same time Roy M. Shane and wife sold and conveyed their interest in the mortgaged farm to one P. R. Banta, brother of L. D. Banta. All these purported conveyances of interests in the mortgaged farm occurred late in 1937 or early in 1938, and were evidenced by quit-claim deeds from the grantors to the Banta brothers. These transactions speedily came to the attention of the plaintiff bank, and as the taxes on the mortgaged farm had also fallen into arrears it promptly instituted foreclosure proceedings, impleading everybody incidentally concerned. Later, on May 24, 1938, it filed a second amended petition alleging in detail the facts summarized above, and alleged that in closing the loan applied for by the signatories to application No. 28,597, dated May 12, 1921, the fact that Roy M. Shane did not have full record title was overlooked and forgotten by “those in charge of closing said loan on behalf of plaintiff,” and that— “All such parties knew that the plaintiff had overlooked the fact that proper deeds had not been placed of record and that all such parties knew that the loan would not have been closed without having full interest in the property as security. That all such parties knowingly, fraudulently and intentionally refrained from calling such error to the plaintiff’s attention.” Plaintiff also alleged that of the proceeds of the loan— “Plaintiff believes and alleges the fact to be that said $2,092.30 was used for the purpose of securing deeds from the other parties making application for such loan, including Roland B. Shane.” In its petition the bank also alleged that L. D. Banta and P. R. Banta claimed certain interests in the property covered by its mortgage, specifying the deed from Helen M. Holland to L. D. Banta and his quit-claim deeds from Percy N. Shane, Maurice E. Shane and Roland B. Shane, also the quit-claim deed from Roy M. Shane to P. R. Banta; but plaintiff alleged that at the time L. D. Banta procured those deeds he knew- — ■ “That the plaintiff’s mortgage covered the full interest -in such real estate and that the recording of the plaintiff’s mortgage constituted actual and constructive notice.” The plaintiff bank also alleged that L. D. Banta paid no consideration for the deeds he had received from Mrs. Helen M. Holland and from the three Shane brothers. In a second cause of action, plaintiff alleged the defendants who had been Roy M. Shane’s cotenants in common in 1921 were es-topped from asserting any right in the property superior to plaintiff’s mortgage. In a third cause of action plaintiff claimed to be entitled to an equitable mortgage on the full interest in the property. In a fourth cause of action it alleged that— “If the plaintiff is not entitled to foreclose its mortgage or an equitable mortgage, then the plaintiff should be subrogated to the rights of Frank R. Zacharias under the note and mortgage given to him.” In a fifth cause of action plaintiff alleged that failing all relief prayed for in its earlier causes of action— “Then the court should find that the $5,500 note and mortgage given to Frank R. Zacharias was paid off by the plaintiff for the benefit of all tenants in common of Roy M. Shane; and that all tenants in common of Roy M. Shane should equally contribute to Roy M. Shane for the benefit received by them and that the plaintiff is entitled to be subrogated to the rights of Roy M. Shane for contribution as against all of his cotenants.” This second amended'petition concluded with a prayer for various sorts of relief, including an adjudication that Roy M. Shane was the absolute owner of the property subject to its mortgage, that it be given a personal judgment against Roy M. Shane and wife for the full amount of their note and interest, and for a decree foreclosing the mortgage and barring all. other defendants from any right therein superior to its lien. Plaintiff also prayed for alternative relief as suggested in its third, fourth or fifth causes of action. L. D. Banta separately answered with a general denial, denied the agency of B. C. Morrison and his authority to write the letter of August 25, 1921, set out above, alleged that neither J. T. Holland and wife, nor Maurice or Percy Shane had knowledge of the payment of any money to Roy M. Shane and the secretary-treasurer of the local farm loan association on November 15, 1921, admitted that he (L. D. Banta) had acquired a seven-twelfths interest in the property, and that his brother P. R. Banta had acquired the five-twelfths interest of Roy M. Shane. L. D. Banta further answered that he had acquired his interest in the property for a good and valuable consideration, without notice, knowledge or information of any claim of plaintiff as alleged in its second amended petition, and that— “Since November 5, 1921, plaintiff bad in its possession and had examined by its attorney, a full and complete abstract of title and had full knowledge of the ownership of such land, and could have, by the exercise of reasonable diligence, known that Joseph T. Holland, Maurice E. Shane, Percy N. Shane and Roland B. Shane owned the seven-twelfths interest in said lands and tenements. That said plaintiff in nowise notified said parties of the completion of said loan or the disbursements of the proceeds thereof and did not give any of said parties notice that it claimed a lien upon all of their interest in said land and that such parties did not know that the bank claimed any right, title or interest in or to their respective shares of said lands and that by reason thereof plaintiff has been guilty of carelessness, negligence and laches and is now estopped to assert in any manner or form any lien on such seven-twelfths interest.” In a cross petition L. D. Banta set up the extent of his alleged interest and prayed that he be adjudged to be the exclusive owner of seven-twelfths of the property and for partition thereof so that he could enjoy the same in severalty. Helen M. Holland filed a separate answer, alleging that when the original Zacharias note and mortgage were executed in 1919, she and her husband, the late Joseph T. Holland, had signed the same as accommodation makers for the purpose of assisting Roy M. Shane to acquire the interest of George O. Holland, and that Maurice E. Shane and Percy B. Shane had signed those instruments for the same purpose, and that neither she nor her husband Joseph T. Holland, nor Maurice E. Shane nor Percy B. Shane had received any part of the consideration. Mrs. Holland also denied the agency of B. C. Morrison and denied his authority to write the letter of August 25,1921. She also alleged the testate death of her husband, Joseph T. Holland, in 1930, and the devise of all his estate to her for life with power of sale and disposition, and that she had exercised that power in the execution of the deed she made to L. D. Banta, dated' January 11, 1938. In other respects her answer substantially conformed to that of L. D. Banta, including a denial of the agency of B. C. Morrison and a denial of his authority to write the letter to the bank dated August 25, 1921. Pleadings were filed by other parties to the action but those may require no attention. Plaintiff filed appropriate general and special denials to join all material issues between it and the answering defendants. The cause was tried without a jury. Plaintiff’s evidence consisted mainly of the application for the loan as narrated above, the bank’s files of correspondence pertaining to the loan, particularly the letters of B. C. Morrison, secretary-treasurer of the local federal farm loan association, and of his successor in that office. Whatever questions of competency or sufficiency may have inhered in the evidence, including the evidential and probative significance of all the attendant circumstances, we do not discern any sharply controverted issue of material fact. It is neither denied nor deniable that none of the signers of the application, dated May 12,1921, other than Roy M. Shane, ever figured in any capacity in the later steps of the loan transaction initiated on that date. While it may be inferred that those signers of the application, J. [Joseph] T. Holland and Maurice and Percy Shane were expected to sign instruments conveying their interests to Roy M. Shane, or to sign the note and mortgage which he and his wife later signed, there was not a syllable of evidence to show that they agreed to do so. That matter was left entirely at loose ends and eventually the loan was made on the note and mortgage executed by Roy M. Shane and wife. At the time the application for the loan was made, May 12, 1921, Roland B. Shane was a minor and of course no one had authority to bind him, nor was it shown that after he attained his majority he parted with his rights until he quit-claimed his interest to L. D. Banta on December 8, 1937. To economize the formal introduction of evidence, counsel for the parties submitted an agreed statement covering part of the pertinent facts. This was adopted by the trial court, and supplemented, of course, by its own findings deduced from the evidence. Those findings of fact were mainly in favor of defendants. We can only take space to quote those which may require comment: “[No. 1] . . . ‘The Federal Land Bank paid the sum of $5,500 to the Sunflower State Bank of Wichita, Kansas, for the use and benefit of the Farmers State Bank of Adams, Kansas, who had made Roy M. Shane a temporary loan to pay off the Frank Zacharias loan, and the canceled papers, note and mortgage and release were sent in by the Adams bank after the proceeds of the Federal Land Bank Loan were paid out.’ “[No. 9] ... In the answer of the defendants, the agency of B. C. Morrison is denied under oath and his authority to act as agent for these defendants was not established by proof. “[No. 10]. . . . That while said application for a loan at the time it was executed recited that the purpose of the loan in part was to pay off the Zacharias loan for $5,500, yet on September 28, 1921, the said applicant, Roy M. Shane, advised the said plaintiff to pay to the Sunflower State Bank of Wichita, Kansas, the sum of $5,500 out of the proceeds of said loan. “[No. 11]. That at the time said application was pending and on or about the 28th day of September, 1921, the Farmers State Bank of Adams, Kansas, made a loan of $5,500 to the said Roy M. Shane for the purpose of paying of [off] the said Zacharias mortgage and thereupon said Farmers State Bank of Adams, Kansas, paid said Zacharias mortgage and the said Zacharias executed a satisfaction of said mortgage under date of October 5, 1921, and on September 28, 1921, the plaintiff bank was notified that the said Roy M. Shane had been loaned the sum of $5,500 with which to pay off the Zacharias mortgage. “[No. 13]. From the evidence it appears that the plaintiff bank at no time had any correspondence with Joseph T. Holland and wife, Percy N. Shane, Maurice E. Shane and Roland B. Shane, and except for the signing of the application there is no evidence that the said parties had any notice or knowledge of the making of said loan, the disbursement of the proceeds thereunder, or were in any wise connected therewith. That while said application for said loan recites that the purpose of said loan in part was to pay off present Zacharias loan for $5,500 and buy out as many of his brothers as possible at an expenditure of $9,500, yet it does not appear that Roy M. Shane made any representation to the plaintiff bank that he had bought out any of his brothers, nor does it appear that he negotiated with any of his brothers for the purchase of their interests, nor does it appear that his brothers ever represented to the plaintiff bank that they or any of them had sold or agreed to sell any of their respective interests in and to said lands to Roy M. Shane. “[No. 15]. That it was the plan and intention of the plaintiff bank that the mortgage which it was securing from Roy M. Shane should cover the full interest in and to all of the real estate involved in this action after the purchase thereof by the said Roy M. Shane from his brothers from the proceeds of said loan. “[No. 16]. That the plaintiff bank at the time of the closing of said loan overlooked the fact that the said Roy M. Shane had failed to purchase the interests of his brothers in said real estate and overlooked the fact that at the time of the execution of said mortgage the said Roy M. Shane was not pos sessed of title to the full interest in such lands,and did not discover the fact that the said Roy M. Shane at the time that he executed said mortgage was not possessed of- full title thereto until the year 1937 when some difficulty arose between, the plaintiff bank and Roy M. Shane with reference to a dispute over mortgaged wheat.” Other findings of fact were that L. D. Banta purchased the interests of Helen M. Holland and of Roy M. Shane’s brothers without notice of any claims on the part of the bank except as revealed by the public records of Kingman county, and that he paid the sums of money for those interests as summarized in our statement of the case. Judgment was entered in favor of the plaintiff bank and against Roy M. Shane and wife for the amount of indebtedness evidenced by their note and interest. Foreclosure of the mortgage was decreed against the five-twelfths interest in the farm owned by Roy M. Shane at the time the note and mortgage were executed in 1921. Costs were also allowed to plaintiff against Roy M. Shane and wife, and against P. R. Banta who claimed under them. L. D. Banta was given judgment for his costs. This judgment was assailed by appropriate post-trial motions, all of which were overruled. Hence this appeal, which contains a long assignment of errors, the most formidable of which will now be considered. It is first contended that because the plaintiff bank was a governmental agency, all the defendants were bound to take notice that it was only authorized to make a loan secured by a mortgage on the full interest of all the parties having any title to the property. Be that rule as it may, it could not be held that where a federal land bank transcends its authority and makes a loan on mortgage security where the mortgagor owns less than the full interest therein or title thereto, the interests of other part owners of the property would be subjected to that mortgage. On the contrary, the security extends to that of the mortgagor, no further; and if the Federal Land Bank loans its funds on inadequate security it is in no better position under the law than any other money lender. Appellant next invokes the rule of equity that where one party makes a mistake and there is inequitable conduct on behalf of the other party, a constructive fraud exists and equitable relief'will be granted the innocent party. We shall not debate the soundness or justice of this rule. However, we are bound to say that the record does not show the slightest trace of inequitable conduct on the part of the defendants other than Roy M. Shane. Although the rules of the bank, or of the statute outlining the procedure to which it should conform in the consideration of applications for mortgage loans, required that where the title to property offered as security was held by two or more joint owners, all such joint owners should sign the application, that requirement cannot be construed as obligating those joint owners to mortgage their own interests in the property— where, as here, the application for the loan clearly showed that Roy M. Shane and he alone was applying for the loan. The signatures of the joint owners did serve a useful purpose. They indicated to the plaintiff bank the names of the persons who claimed interests in the property, which would be helpful to the bank’s title examiners when they came to pass on the sufficiency of the security for the loan applied for. What seems perfectly clear to this court, as it did to the trial court, is that the application did not bind all the signers to mortgage their own several interests in the property to secure a loan on behalf of Roy M. Shane; and a careful reading of the entire three pages of the application makes it perfectly clear that it was not susceptible of an interpretation that anybody but Roy M. Shane was asking for a loan or that anybody but Roy M. Shane was being inquired about in the questionnaire included in the application. In its next point appellant invokes the rule that where an action is founded on fraud it will be in time if begun within two years from the time the fraud was discovered or discoverable if the aggrieved party had used reasonable diligence. But this argument is predicated on the assumption that the defendants other than Roy M. Shane had perpetrated fraud by some sin of commission or omission toward plaintiff. Nothing of the sort existed and the trial court so held. The same rule is invoked for relief on the ground of mistake. Equity does relieve in a proper case against the consequences of a mutual mistake; but here there was no mutual mistake in which the defendants other than Roy M. Shane participated either actively or passively. Appellant next contends that it had a right to an equitable lien on the entire property because it furnished the money, $5,500, to pay off the prior Zacharias mortgage. But as the defendants other than Roy M. Shane were only accommodation obligors on the Zacharias note and mortgage, and none of them had received any of the proceeds of the Zacharias loan, any claim of plaintiff as against them for an equitable lien on the property, or for the bank to be subrogated to the right of Zacharias against them, would have had to be asserted within a reasonable time. Here plaintiff waited over sixteen years, an altogether unreasonable time if its theory of an equitable lien or of subrogation was otherwise tenable, which need not be decided. With one point urged by appellant we are inclined to agree. The trial court found that the agency of B. C. Morrison, denied under oath, was not established by proof. We think his official position as secretary-treasurer of the local federal farm loan association ex officio conferred on him the function of an agent to conduct the correspondence between that local association and the plaintiff bank, and what he said in his letters bound the local association, and mayhap Roy M. Shane was likewise bound thereby; but certainly the statements in Morrison’s letters did not bind the defendants other than Roy M. Shane. Counsel for the bank also direct attention to Roy M. Shane’s apparent ownership as evidenced by his exclusive occupancy of the property for so many years. But there was testimony, dubious though it seems to appellant’s counsel, that his long occupancy of the farm was pursuant to an oral agreement between him and his cotenants, and that he lived up to that agreement for a number of years — by paying the taxes, keeping the improvements in repair, and by paying to his cotenants the proceeds of their proportionate rental shares of the arable land down to 1929 at least. That he could not produce a single check or acknowledgment in writing as evidence of such payment was a good talking point to urge before the trial court which alone was authorized to ascertain the truth of that matter. It serves no purpose in this court to inveigh against the credibility of the testimony of witnesses we have never seen. Continuing to follow the thread of appellant’s argument, the next point urged is that L. D. Banta purchased his interest in the land from Mrs. Holland and from Percy, Maurice and Roland Shane with notice of appellant’s mortgage. Certainly he did; and as a mere speculator in titles or fractional titles he was not entitled to any favors of law or of equity in this lawsuit. But he was entitled to exact justice, neither more nor less. Out of abundance of caution his counsel answered in his behalf with the characteristic pleas of good faith, want of notice and the like; but if the case is put in its strongest form against him, what would it show? It would show, as it did show, that Roy M. Shane only owned a five-twelfths interest in the farm at the time he mortgaged it; that there was outstanding in other heirs and devisees a seven-twelfths interest; and not fearing the result of a lawsuit which he had a right to believe would be decided according to law, he bought those interests at what may have been bargain prices; but we know of no rule of trial practice nor of appellate practice which would justify or excuse any judgment denying him what he did buy and pay for. The industry of appellant’s counsel has brought together many sound and equitable rules of law gleaned from the law books, and has submitted many authorities for our perusal and instruction. These have all been carefully considered; but the trouble with appellant’s case is its inherent weakness in respect to its pertinent facts. No material error is made to appear and the judgment is affirmed.

The opinion of the court was delivered by Thiele, J.: Defendant was convicted of the crime of grand larceny. He appeals, contending there was no competent evidence that the value of the articles taken was over twenty dollars, and that there was error in the instructions to the jury. The property taken consisted of farming implements. The owner was a witness and testified, naming the articles taken, stating their condition for use, and that they were usable as farming tools and equipment. He testified as to the value of each article, in some cases basing his opinion on what similar articles had sold for at public sales. Appellant contends that market value was not proved, and that the owner’s testimony as to value was incompetent. He cites no authority in support of his contention. In Lawson v. Southern Fire Ins. Co., 137 Kan. 591, 599, 21 P. 2d 387, this court recognized the rule that an owner is presumed to know the value of his property and may therefore give testimony with respect thereto. See, also, Brenneisen v. Phillips, 142 Kan. 98, 45 P. 2d 867 and cases cited. Appellant sought by cross-examination of the owner to show the property taken was not fit for use as farming equipment, but was merely junk. On his defense he offered testimony of a witness who testified as to its value if it were junk, but who placed values on the various articles if usable as farming equipment at not less than one amount, nor higher than another. The aggregate of the lower values so placed was less thán $20; the aggregate of the higher values was greater than $20. Under the reasoning of State v. Bolton, 111 Kan. 577, 207 Pac. 653, and State v. Handler, 142 Kan. 455, 50 P. 2d 977, the value was established by sufficient and competent evidence. Appellant complains also that the trial court erred in its instructions to the jury. The record discloses that when the jury was instructed no objection was made to the instructions as given nor were any other instructions requested. Appellant is hardly in position to complain. (See State v. Brown, 145 Kan. 247, 65 P. 2d 333.) We have, however, examined the two complaints under this specification of error. The first is that the trial court told the jury that in order to find the defendant guilty they must find from the evidence he took some one or more of the articles charged to have been stolen, without instructing them that the article so taken must be found to be of the value of twenty dollars or more. The argument is that this referred to one article, that the jury may have believed defendant took only one article, and the jury may have been misled into believing that taking of one article only warranted a conviction of grand larceny, even though there was no contention that any single article was worth $20. We think appellant’s construction of the instruction is incorrect. The other complaint is that the court erred in not defining the phrase “color of right.” The phrase is twice used in the instructions. For instance, in defining larceny, the court told the jury it was committed by a person who unlawfully steals the property of another with intent to convert it to his own use “without color of right or lawful excuse for the act, and without the owner’s consent.” The gist of appellant’s argument is that in the absence of definition the jury was misled. We cannot agree. It is not necessary that the court define every phrase used by it. To so require would result in instructions of interminable length, with definition. following definition. In this particular case, if the appellant thought the phrase was not clear or needed definition, he should have made timely application to the trial court. We have examined the complete instructions given and conclude the cause was fairly submitted. Appellee’s motion that the appeal be dismissed has not been overlooked, but will not be ruled on. It appearing there was no error in the trial, the judgment of the lower court is affirmed.

The opinion of the court was delivered by Smith, J.: This was an action for a commission for the sale of real estate. Judgment was for plaintiffs. Defendants appeal. The petition alleged that the parties entered into a contract whereby the defendants agr.eed in writing to pay a commission of $500 to plaintiffs if they would sell a half section of land owned by defendants for $30,000 cash, and that subsequent to the execution of this contract defendants agreed to pay in addition to the above commission all the land sold for in addition to the $30,000. The petition further alleged that plaintiffs interviewed a prospective buyer, who stated that he was ready, willing and able to pay defendants $30,300 in cash for the place, but stated that if it was agreeable to defendants he would prefer to pay $10,000 cash, secure the rest with a first mortgage to run over a term of years; that plaintiffs inquired of defendant Hodge whether defendants would agree to such terms, and Hodge orally agreed that such terms would be satisfactory; that thereupon the buyer executed and delivered to plaintiffs a written contract whereby he agreed to pay defendants $30,300 for the property, $11,300 cash and the balance of $19,000 payable over a period of seven years; that on January 19, 1938, the buyer was ready, willing and able to purchase the property for $30,300 cash and to complete the transaction by January 21, 1938, and to accept the real estate subject to a one-year lease. The petition further alleged that plaintiffs tendered the contract to defendants, and also advised defendants that if the contract was not satisfactory to them the buyer was ready, willing and able to purchase the property for $30,300. The petition then alleged that defendants refused to execute the contract because of some minor objections to it, which they said could be corrected; that defendants told plaintiffs that they would on the next day prepare in writing and execute a contract making such corrections as were satisfactory to them; that defendants did not forward any such contract, but on January 24, 1938, advised plaintiffs by letter that they refused to execute the contract or to sell the land. Judgment was asked in the amount of $800, this being the amount defendants agreed to pay in the written contract plus the $300 which •the buyer was willing to give for the property in addition to the $30,000. The answer was a general denial except the admission that the written contract as to the commission was entered into. The answer also alleged that the contract was not entered into as a general listing, but was entered into solely to enable plaintiffs to complete the deal with the purchaser to whom they represented they had already shown the land. The answer denied that defendant Hodge orally agreed on January 19, 1938, to an extension of time, or that the terms would be satisfactory, and alleged that he stated he could not make any extension or change in the terms of the contract ■without-consulting with Foster. The answer further denied that plaintiffs stated on January 22, 1938, that the buyer was ready, willing and able to purchase the property for cash. The reply was a general denial. At the trial after the opening statement of counsel for plaintiffs he asked and was given permission to amend the petition by alleging that at all times Hodge was acting for and on behalf of Foster. Evidence was introduced in behalf of both parties, and after instructions by the trial court the jury returned a verdict for plaintiffs in the amount of $500. After a motion for a new trial was overruled judgment in that amount was given to plaintiffs. Defendants appeal from that judgment. The only evidence brought here by this record is that of plaintiffs. The error argued here is that the trial court-erred in overruling the demurrer of defendants to the evidence of plaintiffs. This will make it necessary to examine the testimony of the witnesses for plaintiffs. .This testimony must be taken as true and every reasonable inference tending to prove the cause of action of the plaintiffs must be drawn. Mr. Charles O’Neill testified that he and his son called on defendants to obtain a listing of the half section in question; that they saw Foster, and he.said: , “Well, if you want to discuss land, you will have to talk to Mr. Hodge, because I handle the motorcar business, and he handles the real estate. He has lots of land in Bice county, or considerable land.” He also testified that Mr. Hodge came in and said they were pricing the land at $30,000 and that they would pay a commission of $500 out of the purchase price; that after some talk Hodge agreed to pay them all they could get above $30,000; that a contract was handed to them. This contract was as follows: “The Hodge-Foster Motor Co., Inc. 116 West Second Street HUTCHINSON, KANSAS Phone 81 January 7, 1938. “U. S. Hodge and J. C. Foster hereby agree to sell one-half (%) section of Rice county land, SE14 18-6-20 and NE14 19-6-20, for the sum of $30,000' (thirty thousand dollars), paying five hundred dollars ($500) total commission, provided the transaction is completed by January 21, 1938. “This sale is subject to one-year lease on above land. “(Signed) U. S. Hodge, “(Signed) John C. Foster.” This witness further testified that when the contract was handed to them his son objected because the contract only called for a $500 commission and Hodge said in the presence of Foster that they could have all above $30,000; that following this they called on a prospective buyer named Stueder, and as a result of his conversation with Stueder he called Hodge and asked if he would be interested in accepting a payment on the land as low as $10,000 and the balance on terms, and he said: “Go ahead and make the trade if you can, on those terms. I asked him what rate of interest, and he said, ‘Five percent.’ I did not state how many years time because I knew it was immaterial much to this man’s time, and after talking, after that conversation, I said, ‘Well, we will go to work hard on it in the morning.’” The witness further testified that the next day he saw William Stueder and Julius Stueder and showed them the land; that he told Stueder that Hodge would sell this land for a down payment as low as $10,000; that Mr. Stueder said to make it $11,000; that he wanted possession of the land about March 1 and that he wanted the man to quit pasturing the wheat; that Stueder said he would pay $19,000 at five percent or “If it needs to be I can pay it all. ... I can pay every bit of it if it needs to be, or if it is necessary.” He testified that he mentioned he would like to have five years on it, but that witness said, “Let’s make it seven years,” and witness said, “Let’s put down payments of $100 at each interest-paying time”; that a contract for the sale of the land along these general lines was drawn up and signed by Stueder; that when the contract was shown to Mr. Foster he objected to the time payments, but said nothing when told that Hodge had agreed to this; that the two, Hodge and Foster, withdrew into a room with the contract and in about forty minutes came out and said they wanted payments on five years instead of seven; said nothing about the pasturing of the wheat and they would have to see their tenant about getting possession March 1. Witness testified he told them this was all right and to go ahead and fix up a contract; that he told them plainly that Stueder would buy the land and pay for it on any terms they wanted; that.thqy were to fix up a contract to suit themselves; that on January 22 he and his son stopped and asked Hodge if they should go talk to the tenant, and Hodge said he would attend to it. The testimony of .Grover O’Neill, the son, was substantially to the same effect, with the addition that he stated that Hodge and Foster stated they wanted the payments to be $500 instead of $100. J. L. Hamilton, a banker, testified that Julius Stueder, a brother of the buyer, had an account of around thirty or thirty-five thousand dollars in his bank and that he would say that this would have been available to William. Stueder testified that the land was priced to him at $30,000 cash; that he told them he would give $10,000 and the rest as a mortgage at five percent; that he went to look at the land the next day and he thought it was a good buy at $30,000; that his brother had $30,000 in the bank and witness owned nine quarters of land; that he signed the contract in question and told O’Neill if there were some changes to be made there, “X was willing to do whatever was fair.” Stueder also testified that— “. . . On the 20th, after I had talked to my brother about this deal, I found out I could pay the whole thing in cash if that would be required. “Q. Did you tell that to Mr. O’Neill? A. Yes, sir. “I said if it could be arranged to stop pasturing I would rather have it that way; if not, it would be all right to go ahead and pasture. It really didn’t make a whole lot of difference to me whether it was cash or not.” This witness testified that when he noted in the letter from Hodge and Foster that the deal would have to be dropped because the offer was not for cash he told the O’Neills he could make it cash if it need be; that he did not want the land at the time he was testifying because he had bought 100 acres of other land, paying $6,500 for it. From this record defendants argue that plaintiffs, as agents, are not entitled to any commission for the reason that they acted in bad faith. The basis of this argument is that defendants knew that Stueder could pay cash and was willing to do so, but that knowing this they drew up the contract for part in cash and a mortgage for the balance when it was their duty to sell the land to the best advantage of their principal, Hodge and Foster. The trouble about this point is that plaintiffs did not offer the land in question to Stueder for anything other than cash until Stueder had inquired about terms and plaintiffs had called defendants and secured their approval to an offer of the land on terms. Furthermore, an offer of cash was submitted to defendants at the time they saw the contract and suggested the changes in it. The evidence falls short of convicting plaintiffs of any bad faith or representing anyone other than defendants in this transaction. The defendants next argue that there was insufficient evidence to show that defendant Hodge had authority to act as agent for Foster or that he did so act. On this point the evidence is that defendants were engaged in the automobile business under the name of Hodge-Foster Motor Company. It was at this place of business that plaintiff first called on defendants. Here the following conversation took place: "Well, if you want to discuss land, you will have to talk to Hodge, because I handle the motorcar business and he handles the real estate. ' “He (Foster) did not understand real estate very well, and that any real-estate deal that they would make was up to Mr. Hodge. “He (Foster) told us that whatever Mr. Hodge would do in the matter would be all right with him, but he didn’t want to discuss the question until Mr. Hodge had come to the office.” Then when the contract was tendered defendants at the home of Hodge, Foster was there and took part in the conversation. The testimony to these conversations was as follows: “He (Foster) said that because Mr. Hodge, I believe Mr. Hodge owned most of this other land, if not all of it, himself, and that he was handling these land propositions himself, and whatever Mr. Hodge did that Foster just went along with him, whatever he did in the matter of land transactions. “Mr. Foster never had anything more to say when I (Chas. P. O’Neill) told him that Mr. Hodge had agreed to the contract. “Mr. Foster and his wife arose to go . . . and Mr. Foster stated for us to go ahead with this, with this changing of these objections, that is, make out a new contract, and whatever Mr. Hodge did was acceptable to him.” Under these circumstances it was not necessary that plaintiffs prove Hodge was the agent of Foster or Foster the agent of Hodge. They were acting together at all times and each was aware of what was going on at all times. In this connection the trial court was entitled to take into consideration the fact that the listing agreement was signed Hodge-Foster, as was the letter in which they advised plaintiffs that they did not want to sell the land. The listing contract was no more than an authority to plaintiffs to find a purchaser ready and willing and able to purchase on the terms of the listing. (See Wiggam v. Shouse, 105 Kan. 637, 185 Pac. 896.) There is ample evidence from which the trial court was justified in submitting to the jury the question of whether the written listing contract had been modified by a subsequent oral contract to provide for the selling of the land on terms. Defendants argue further that there was not sufficient evidence to warrant the submission to the jury of the question of whether plaintiffs produced a purchaser ready, willing and able to purchase. We have examined this record and have reached the conclusion that there was sufficient evidence to warrant a submission to the jury of the question of whether Stueder was ready, willing and able to purchase the land for cash and on the terms submitted in the written listing contract and was willing and able to meet the objection advanced by defendants. (See English v. Harris, 106 Kan. 167, 186 Pac. 987; also, Wacker v. Hestor, 102 Kan. 710, 171 Pac. 1151.) The judgment of the trial court is affirmed.

The opinion of the court was delivered by Allen, J.: This action was brought by Alary Darrington to recover damages for the death of her husband in an automobile collision. Defendant prevailed, and plaintiff appeals. On July 23, 1936, between the hours of 11 o’clock p. m. and 12 o’clock midnight, one John'Henderson was driving a Ford coach east on State avenue in Kansas City, Kan.; at the same time the defendant, Ivan Campbell, was driving a Plymouth sedan west on the same avenue; the cars collided at the intersection between State avenue and North Washington boulevard; and as a result of the collision one Allen Darrington, who was riding in the Ford coach with Henderson, was killed. The petition charged that the defendant, Ivan Campbell, was careless and negligent in driving without any lights burning on his car, in driving at a high rate of speed in total disregard of the rights of others, in making a left turn without warning or signal, in driving on the wrong side of the highway, and in driving his car in violation of certain city ordinances. The answer of defendant charged that the death of Darrington was caused by his own carelessness and negligence; that he knew or by the exercise of reasonable care could and should have known that Henderson, who was driving the Ford coach, was a reckless, careless and negligent driver; that the Ford coach was old, dilapidated and out of repair; that its brakes, steering gear and other controls were old, worn, defective and out of repair; that it did not have sufficient lights; that at the time of the accident and some time prior thereto Henderson was driving such car at a high, intensive and dangerous rate of speed, and that the deceased Darrington, although he knew such facts, failed to warn the driver as to the danger in the excessive speed he was operating such car. Upon a trial on these issues the jury rendered a general verdict for defendant, and returned answers to special questions. In answer to the question: “What was the proximate cause of the accident?” the jury returned the answer: “Negligence on both drivers.” There was evidence in the record which tended to show that the Ford car driven by Henderson, in which the deceased Darrington was riding, approached and entered the intersection at a high rate of speed; that it was without lights; that it did not reduce its speed at the slow sign before entering the intersection; that Darrington did not say anything to the driver Henderson about “look out,” “stop” or “watch your driving,” and that while Darrington was watching the driver, he never said a word to him at any time. Plaintiff contends that the negligence of the driver Henderson could not be imputed to Darrington; that the answer to the special question is inconsistent with the general verdict and must control. The law applicable to the facts has long been settled in this state. In Little v. Hackett, 116 U. S. 366, 29 L. Ed. 652, 6 Sup. Ct. 391, it was held that the negligence of the driver of a vehicle could not be imputed to a passenger, and would not bar recovery from a railroad company for injuries suffered from a collision of its train with the vehicle, caused by the negligence of both the managers of the train and the driver of the vehicle. In that case the court examined and repudiated the doctrine of Thorogood v. Bryan, 8 C. B. 115, 137 Eng. Reprint 452, that the passenger was so far “identified” with the driver that he became chargeable with the negligence of the driver. Little v. Hackett was followed in England, Mills v. Armstrong (The “Bernina"), 13 A. C. 1, 58 L. T. R. 423; in most of the American states (Sherman & Redfield on Negligence, 6th ed., sec. 66), including Kansas, City of Leavenworth v. Hatch, 57 Kan. 57, 45 Pac. 65; Bower v. Railroad Co., 106 Kan. 404, 188 Pac. 420; Clark v. Railroad Co., 115 Kan. 823, 224 Pac. 920; Link v. Miller, 133 Kan. 469, 300 Pac. 1105. In Reiter v. Grober, 173 Wis. 493, 181 N. W. 739, 18 A. L. R. 362, the doctrine of “identification” announced in Thorogood v. Bryan, and which had been followed in that state, except as to public conveyances, was “laid at rest after a vigorous life of fifty years.” But while a guest is not chargeable with the negligence of the driver, it does not follow that the guest is absolved from the duty to use due care for his own safety. While the negligence of the driver is not to be imputed to the guest or passenger, the circumstances may be such as to make it the duty of the guest to look and listen and warn or attempt to control the driver for his own protection. If he fails to use due care and caution under the circumstances, and his own negligence contributes proximately to the accident and was a substantial factor in bringing about his harm, he is barred from recovery. The question of the contributory negligence of the guest or passenger is for the jury to determine, unless the evidence is such as to require the court to determine it as a question of law. Thus, in Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624, it was said: “Where one person is riding with another for the mutual pleasure of both, with equal opportunity to see and ability to appreciate the danger, and is in fact looking out for herself, but makes no effort to avoid the danger, she is chargeable with the want of care which results in injury.” (Syl. If 3.) This doctrine has been followed in this state. (Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744; Sharp v. Sproat, 111 Kan. 735, 208 Pac. 613; Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893.) It was the duty of Darrington to look out for his own safety as far as it was practicable. Under the evidence the jury was warranted in finding that he was guilty of contributory negligence and that such negligence was a substantial factor in bringing about his death. (Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117; Shrewsbury v. Goodacre, 135 Kan. 230, 10 P. 2d 1.) For the reasons stated the answer to the special question was not inconsistent with the general verdict. If the negligence of both drivers had caused the accident resulting in the death of the guest Darrington, and Darrington had not been guilty of contributory negligence, the answer to the special question would have been inconsistent with the general verdict. Here the contributory negligence of Darrington was an issue in the case; it was alleged in the answer, and was submitted to the jury by proper instructions. The jury returned a general verdict for the defendant, and this was warranted by the evidence. It imports a finding that the decedent was guilty of contributory negligence which was a proximate cause of his death. A general verdict for defendant imports a finding in his favor upon all the issues in the case which are not inconsistent with the special findings. (Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585.) If there is apparent inconsistency between the answers to special questions and the general verdict, nothing is presumed in aid of the special findings, and every reasonable presumption will be indulged in favor of the general verdict. (Hiler v. Cameron, 144 Kan. 296, 298, 59 P. 2d 30.) While this conclusion compels an affirmance of the judgment, perhaps one further point deserves comment. Plaintiff sues as the widow and sole heir of Darrington. The burden was on the plaintiff to show that she was the lawful wife of Allen Darrington at the time of his death. The jury found that Allen Darrington had married one Beatrice Oliver in Phillips county, Arkansas, and further found that Beatrice Darrington was alive on July 26, 1936. It thus became necessary to show that these parties had been divorced. In answer to questions 2 and 4 the jury answered that they had “no knowledge” on the question of divorce. The rule in this state is that when a jury answers a special question, “we do not know” or “no knowledge,” the answer is properly construed against the party on whom was the burden of proof with respect to the matter to which the question relates. (Schwab v. Nordstrom, 138 Kan. 497, 27 P. 2d 242; Pioneer Trust Co. v. Combs, 123 Kan. 356, 255 Pac. 81.) It would seem, therefore, that the plaintiff has failed to prove that she was the wife of Allen Darrington at the time of his death. The answer “no knowledge” was equivalent to a finding that there had been no divorce between Allen Darrington and Beatrice. Other questions raised have been considered, but do not call for further discussion. The judgment is affirmed.

The opinion of the court was delivered by Hoch, J.: This was an action to recover damages for alleged malpractice by a physician. The case was tried by a jury which was unable to agree. It is here on appeal of defendant from orders of the court overruling a demurrer to the plaintiff’s evidence and overruling motions for a directed verdict and for judgment on the record. Briefly, the facts are that Thelma Riggs, the plaintiff, was operated upon by Dr. R. M. Gouldner, a- physician and surgeon of Wichita, on September 7,1936, and that following the operation and upon the advice of Doctor Gouldner, she was given X-ray treatments by Doctor Hagan, and that she had a subsequent operation performed by Doctor Wolfe, and that she was treated for various complaints by Doctor Mermis and Dr. John H. Wallace. The heart of the complaint is that Doctor Gouldner did not use approved methods in diagnosing plaintiff’s trouble; that without pursuing adequate methods of diagnosis he determined that the patient was suffering from a malignant growth or sarcoma; that upon his advice deep X-ray treatments were employed, which proved very harmful to the plaintiff and that as a result of these treatments and the administration of certain drugs, alleged to have been prescribed by doctors subsequently treating the plaintiff at the suggestion and under the direction of the defendant, plaintiff’s health was greatly impaired and she suffered serious and permanent physical injury. Judgment was asked in the sum of $40,000. The defendant introduced the testimony of various doctors that the methods of diagnosis used were methods generally approved and followed by physicians and diagnosticians of good standing in the locality and that the treatment prescribed was one generally used and approved by the medical profession. However, the issue here being the sufficiency of the plaintiff’s evidence to establish a prima facie case, the evidence on behalf of the defendant cannot be considered except insofar as it may be supplementary to plaintiff’s evidence. Plaintiff’s witnesses, in addition to herself, were her mother, Florence Riggs; her father, T. B. Riggs; Doctor Tedrick, an X-ray specialist; and Drs. H. C. Wallace and John Wallace, osteopathic physicians. The hospital record and a laboratory report were introduced as exhibits. Before examining the evidence it is well to state some well-established rules of law applicable to malpractice actions. A physician or surgeon is not a guarantor of the correctness of his diagnosis or of the efficacy of the treatments prescribed (48 C. J. 1119, 1120), but he is required to exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by the members of his profession in good standing and to use ordinary and reasonable care and diligence and his best judgment in the application of his skill to the case. (48 C. J. 1113.) Negligence cannot be presumed from the mere failure to obtain the best results. (Paulich v. Nipple, 104 Kan. 801, 180 Pac. 771.) To establish liability there must be competent testimony that there was lack of care or that approved procedure and methods were not followed, and the general rule is that the negligence in the treatment which is claimed caused the injury must be shown by medical witnesses called as experts, that it must come from those qualified by education, training and experience to give it. (Saylor v. Brady, 114 Kan. 764, 220 Pac. 1047; Paulich v. Nipple, supra, following Sly v. Powell, 87 Kan. 142, 123 Pac. 881; James v. Grigsby, 114 Kan. 627, 220 Pac. 267; Pettigrew v. Lewis, 46 Kan. 78, 81, and authorities there cited; Tefft v. Wilcox, 6 Kan. 46, 59.) This does not mean, however, that there may not be certain facts concerning which persons not medical experts are permitted to testify. This court has said in numerous cases that the general rule applies only to such matters as are clearly within the domain of medical science, and that matters that are within the common knowledge of mankind may be testified to by anyone familiar with the facts. (McMillen v. Foncannon, 127 Kan. 573, 274 Pac. 237; Stockham v. Hall, 145 Kan. 291, 65 P. 2d 348; Flentie v. Townsend, 139 Kan. 82, 30 P. 2d 132; Yard v. Gibbons, 95 Kan. 802, 149 Pac. 422; Stecher v. London Guarantee & Accident Co., 133 Kan. 89, 298 Pac. 754.) Concerning medical testimony it is a general rule that a member of one school of medicine is not permitted to testify as to whether a defendant belonging to another school of medicine has employed the approved procedure and treatments of his own school. This rule, however, has been modified by many courts to the extent that where the two schools teach and practice the same methods of diagnosis or treatment in connection with the particular ailments or branch of medicine involved in the case, testimony may be received from a practitioner who does not belong to the same general school as that of the defendant. (21 R. C. L. 383; Yard v. Gibbons, supra.) Professional testimony is of primary concern on this review, but summary of other testimony will be given insofar as at all pertinent, as background or otherwise, to the issue before us. The plaintiff, Thelma Riggs, testified, in substance, as follows: Five or six months before the operation was performed by Doctor Gouldner she (then Mrs. Charles Green) gave birth to a full-term dead child. Subsequently she was treated for some weeks by Dr. E. C. Rainey, who then accompanied her and her mother for a con*sultation with Doctor Gouldner. Doctor Rainey told Doctor Gouldner what had happened and all about it. He explained the matter fully and the things which he had done. Doctor Rainey had previously taken her temperature, her blood pressure and examined the condition of her abdomen. He told Doctor Gouldner that the plaintiff was running a temperature. She described her symptoms to Doctor Gouldner, telling him, among other things, that she had been having pain in her left side. There was a pressure there when she stood on her feet which made her sick and caused her to vomit. Doctor Gouldner did not take her temperature nor her blood pressure, but did test her pulse. He placed her upon the table and made an examination of her abdomen, both externally and internally, through the vagina. She said that Doctor Gouldner made a thorough examination, that he found some kind of a lump in her abdo men and she explained that was where she had been having pain; that she had then been having this continuous pain in her side for about three weeks. After this first examination Doctor Gouldner told her that the tumor was about the size of a small grapefruit and that he would not know what it would be until he operated. This first consultation was in the latter part of August, 1936. An operation was performed on September 7. A few hours afterward she talked to Doctor Gouldner and asked him what he did, and he said he could not do a great deal because it was impossible to operate and take the growth out and that she would have to recover from the shock and then they would try to do something else. Three or four weeks later Doctor Gouldner- asked her how she was feeling, and she told him she was in about the same condition she was before the operation, and he said they would have to make arrangements for X-ray treatments and told her that he would make reservation for her at the hospital and for her to go there and take the treatments. These treatments were administered by Doctor Hagan. Later on peritonitis developed and she went back to the hospital and said that she did not have another conversation with Doctor Gouldner until that time. An operation was performed by Doctor Wolfe. She said that Doctor Gouldner told her father and mother to take her down the hall and Doctor Wolfe would operate, as he was on another case. She testified that Doctor Gouldner stopped in to see her a number of times, taking her pulse and looking at her chart at the head of her bed. After about ten days at the hospital for this second operation she went to her mother’s home and did not see Doctor Gouldner after that, as far as she could remember. She said that Doctor Mermis then came on the case and she was taken back to the hospital in January, 1937, for treatments and operation of some sort in connection with a bowel trouble which had developed. Florence Riggs, mother of the plaintiff, testified at length, but we need only give brief summary of pertinent parts of her testimony. She testified that her daughter had been attended by Doctor Rainey and she talked to Doctor Gouldner in the presence of her daughter and Doctor Rainey. At the time Doctor Gouldner made the examination he said there was a tumor on the ovary as nearly as he could tell without an operation, but he did not make a blood count at that time nor take an X-ray picture. He did not take her temperature, but she told him her daughter was running a temperature. She also testified that Doctor Rainey gave Doctor Gouldner information concerning what he had done. She was in the observation room adjoining the operating room when the operation was performed and saw Doctor Gouldner take out two pieces of the tumor. Following the operation Doctor Gouldner told her that her daughter had a sarcoma and had but a few months to live; that about three days later she talked to him again after he had a report from the laboratory, and he said that the report did not positively show sarcoma, but he knew it was sarcoma; that sometime later she went to Doctor Gouldner’s office, and he told her that X-ray treatments should be taken to retard the growth, and that Doctor Hagan would give them and he would call him and direct what kind of treatments she was to have; that her daughter asked Doctor Gouldner if the treatments would have any effect upon her bearing children and he said they would not, but that he was just trying to retard the growth. Subsequently, and just before Thelma was taken to the hospital for peritonitis in December, she called Doctor Gouldner, and he said he couldn’t come as he had an operative case in the morning, and said he would send another doctor, and later Doctor Mermis came and said he was the doctor sent by Doctor Gouldner. Doctor Mermis continued to take care of Thelma until February 20. She said that when Doctor Mermis would call she would hear him call Doctor Gouldner on the phone to report on Thelma’s condition and that following such conversation Doctor Mermis directed her to give morphine to Thelma by the use of a hypodermic. She also testified as to other drugs that were prescribed. When Thelma developed a serious bowel condition she heard Doctor Mermis talk to Doctor Gouldner over the telephone, after which Doctor Mermis ordered Thelma taken to the hospital. When they got to the hospital Doctor Gouldner looked at her and said that Doctor Wolfe would take care of her, as he was operating. Doctor Gouldner was not present during the operation, but he was there subsequently and looked at the charts and counted her pulse and respiration. She had a conversation with Doctor Gouldner in December, 1936, with reference to Doctor Mermis, and said she was satisfied with Doctor Mermis and, as far as they knew, he was doing all right. Doctor Gouldner said he thought it would be all right and that Doctor Mermis had more time to take care of Thelma than he had, but that he would come any time he was needed, day or night, and see that things were going right and check up and see that Doctor Mermis was following his instructions. At no time from September, 1936, until March, 1937, did Doctor Gouldner tell her or tell Thelma in her presence that he had withdrawn from the case; that after Thelma was taken back from the hospital on the 21st day of February she called Dr. H. C. Wallace at the Southwestern Osteopathic Hospital, and Doctor Wallace came about four o’clock in the afternoon and then went back to the hospital and sent his son, Dr. John H. Wallace. T. B. Riggs, father of the plaintiff, testified — in addition to some of the same matters covered by his wife’s testimony — -that Doctor Mermis called Doctor Gouldner over the phone almost daily during the time he was treating Thelma, that he (Mermis) talked to Doctor Gouldner about the absence of any bowel movements and reported that the sarcoma was growing at such a rapid rate that it had completely shut off the colon. On February 20, 1937, he (the witness) called Doctor Gouldner to see whether Thelma could be taken to the hospital again; that Doctor Gouldner sent Thelma a statement for $200 after this operation and they had received no bill prior to that, time; that he did not remember whether Doctor Gouldner told him that Doctor Helwig had called the tumor a cellular neurofibroma. The St. Francis Hospital “operative record” was introduced and showed that Doctor Gouldner’s preoperative diagnosis had been “tubo-ovarian abscess” and his postoperative diagnosis “Retroperitoneal sarcoma. Adhesions to iliac vessels, ureter, etc., are so dense as to make removal impossible.” The report of Doctor Hellwig on his laboratory examination of the tissue was also introduced, in which he gave as his pathological diagnosis “cellular neurofibroma.” It is not denied that “cellular neurofibroma” is one kind of cancer. Doctor Tedrick, a roentgenologist, or X-ray specialist, testified that he made X-ray pictures of the plaintiff on March 8, 1937— about six months after the first operation. He said that from experience in viewing conditions of sarcoma by X ray he could tell whether there is evidence of sarcoma if it is of sufficient density and whether there is evidence of ordinary tumor. Concerning the radio-graph used in presenting his testimony, he said: “I do not see any evidence to be sarcoma at this time. If there had been one before the plaintiff had received this course of X-ray treatments, it is possible that it would have disappeared and I couldn’t see it here.” He said he was of the osteopathic school of medicine, but was a specialist in diagnosis and radiology and that the “authoritative technic in the use of X ray in the allopathic and osteopathic schools are the same.” He testified as to various approved methods in the vicinity of Wichita in the diagnosis of sarcoma, the principal ones being by X-ray pictures and the use of the stereograph, physical diagnosis and laboratory diagnosis. He said an X-ray diagnosis furnishes presumptive evidence of sarcoma. He testified that the presence or absence of fever would have no bearing upon the presence of sarcoma “in that location,” but would be more indicative of ah abscess. As to approved clinical laboratory methods, he said: “Clinical laboratory methods include microscopic studies of the secretions and the tissues of the body, and in the study of sarcoma we would make our study from a section or a small piece taken from that growth properly prepared and placed under a microscope and diagnosed or interpreted by one skilled in those methods, and that is the most important method of diagnosing of cancers or malignancies.” As to X-ray treatments he testified: “The tendency of the X-ray treatment is to stop the activity of those cells, thereby stopping the growth.” Dr. H. C. Wallace testified that he was an osteopathic physician and surgeon and had been practicing about twenty-five years, that he had been surgeon at the osteopathic hospital in Wichita since 1924; was chief of staff there, and had had experience in diagnosing sarcoma, having had forty or fifty cases of sarcoma, which is one form of cancer. He testified that practically all the textbooks in the osteopathic school on diagnosing symptoms are written by allopathic physicians and that the approved methods of diagnosing tumors, malignant or nonmalignant, are “history, physical examination, pathological examination of tissue; X ray sometimes is of value, and laboratory tests are of some value.” He testified that nothing “is definite or positive except the pathological examination.” In answer to a hypothetical question bearing upon the symptoms and the physical findings at the time the operation was performed, he said, “I would say that a growth of that kind that is inoperable, of course is always suspicious of a sarcoma.” He further testified: “The approved method of procedure and diagnosis of tumors in the city of Wichita and similar communities at the time, was to make a diagnosis from the standpoint of the growth. If a biopsy is necessary, of course we don’t do that until after we have exhausted other methods. If there is a question as to malignant condition, v>e advise a biopsy. In a case like this you have to go into the abdomen to get a piece of the tissue and by taking a biopsy there is a possibility it might increase the activity of the growth. “The approved methods used at this time in Wichita before performing a biopsy is to take the history, the physical examination; sometimes X ray is used if there is a possibility it may give us information; blood examination to determine if there is anemia or other evidence of malignancy. A blood count would not tell you whether it was a malignancy, it would tell you whether or not there is anemia present, which is present in malignancy, and may be present in many other conditions. A blood count would indicate whether or not there was an abscess, and pain and palpation usually indicates inflammation. Usually there isn’t much-pain with sarcoma to palpation. From my examination of her and treatment, I have no positive evidence as to whether she did or did not have sarcoma. At the time of my examination I did not find any evidence of a sarcoma. I could not tell by looking at her whether or not she had ever had sarcoma. An X, ray taken in March of 1937 might have shown the outline of a mass, it wouldn’t show whether it was sarcoma or not.” Dr. John H. Wallace testified that he was a graduate of the Kansas City College of Osteopathy and Surgery and had been practicing for five years. It is upon his testimony that the appellee relies to support the contention that sufficient evidence of malpractice was shown to require submission of the case to the jury. He testified at some length, but we shall quote only portions pertinent to the immediate issue before us. The issue here is not whether some other doctor, allopathic or osteopathic, might think that Doctor Gouldner’s preoperative diagnosis was not well founded, or that other methods of diagnosis or other treatment would have been better. The question is whether there was substantial professional showing that Doctor Gouldner’s method of diagnosis was not an approved method, generally so recognized -by the medical profession in and around Wichita, or that the use of X ray following his own diagnosis and the report of the pathological examination of the tissues was not an approved treatment, or that he was guilty of negligence in connection with the case. In determining the issue before us every reasonable inference favorable to the plaintiff must be indulged in connection with the evidence presented in her behalf. It may fairly be said that the principal contention made by Dr. John H. Wallace, which he repeatedly emphasized, was that the plaintiff did not have a sarcoma and was not suffering from sarcoma prior to the operation performed by Doctor Gouldner. He criticised the procedural methods used by the defendant before advising an operation, claiming that all probability of the existence of a non-malignancy should have been eliminated by the use of various methods, which he outlined, before performing an operation. But the insufficiency of that testimony, on the issue here, is that Doctor Gouldner did not diagnose the trouble as a malignancy prior to the operation. On the contrary, his diagnosis was that tire patient had an abscess. Doctor Wallace says she did not have a sarcoma and Doctor Gouldner came to the same conclusion, even though he didn’t use all the tests which Doctor Wallace thinks he should have used to eliminate the probability of nonmalignancy. Moreover, it must be noted that the plaintiff’s evidence shows that Doctor Rainey, who had been treating the plaintiff for several weeks, reported fully to Doctor Gouldner on the patient’s case — the previous history, the symptoms and the treatment. There is no allegation that Doctor Rainey was not a physician of good standing or that Doctor Gouldner was not justified in accepting his report. Again, Doctor Wallace laid some stress upon the pain testified to by the plaintiff, and contended that under other facts existing pain indicated abscess rather than malignancy. He testified: “Ordinarily, a malignancy does not produce pain until it is large enough to be discovered by ordinary means of diagnosis — just by vision. “Q. How large, about? A. Oh, sometimes it doesn’t produce pain until they are as large as your head. “Q. State whether or not a sarcoma the size of a small grapefruit would be painful to palpation on diagnosis. A. No. “Q. All right. Go on tell the jury the other— A. The history was an abscess. The clinical course was an abscess. “Q. The what? A. Clinical. “Q. Tell them why it was an abscess, in your opinion. A. She acted like it. What I mean by that is the complaint of pain in her side on motion. A malignancy does not produce pain unless it gets large .enough and heavy enough it causes weight; then it produces weight — or until it metastasizes.” On cross-examination he testified: “Q. Doctor, I believe you said this morning that one thing that would influence you in determining whether or not this was an abscess or a sarcoma would be the length of time that she had been troubled with that situation? A. Yes, sir. “Q. Did you understand in making your answer that she had been troubled for some six months with some pain and suffering? A. Yes, sir. “Q. Was that correct? A. Yes, sir. “Q. Then if she had only been suffering about three weeks at the time she ■went to Doctor Gouldner, that might make some difference if that statement was correct, wouldn’t it? A. The way I understand the history of the thing was— “Q. Just answer my question. A. State your question again, please. “Q. If she had only been suffering three weeks from this pain in her left side in this condition prior to the time she went to Doctor Gouldner, that ■would make some little difference? A. Yes; sure it would. “Q. Didn’t you hear her testify here on the witness stand? A. I don’t remember what she testified to, but the history was different.” It will thus be seen that Doctor Wallace based his testimony on this point, in part at least, upon the assumption that the patient had been troubled with pain and suffering for six months and that it would have made a difference to him, in making diagnosis, if she had been suffering pain for only three weeks, as the witness testified. But the appellee argues, that this part of Doctor Wallace’s testimony was modified on reexamination, as follows: “Q. Doctor, I asked you on my examination, in your various opinions hére concerning this testimony, that you base your opinions only on the history given by her from the witness stand as she related it to Doctor Gouldner and from your experience in treating her and observing her personally. Now, state whether or not your testimony heretofore has been based only on that. A. Only on what? The testimony? Prom my experience? “Mr. Sowers: Read it, please. (Question read by reporter): “A. That is what I based it on. My attempt to base it that way.” Whether the answer “That is what I based it on. My attempt to base it that way” is sufficiently definite to change the character of his former testimony that he predicated his answers in part on what he had been told about the history of the case, rather than wholly upon the testimony, may well be questioned. But this point need not be pressed. We find no evidence to support an allegation that proper care was not taken in making the tentative diagnosis, or that the recommendation of an operation after such diagnosis constituted malpractice, or that the operation was not performed in an efficient and professional manner. The only substantial question remaining relates to the use of X ray and its alleged harmful effect. Is there any evidence on that question to support an allegation of malpractice? When the operation was performed Doctor Gouldner found that the growth was in such a position that it could not be removed, and no attack is here made upon that conclusion. He took two specimens of the tissue for pathological examination. The diagnosis of Doctor Hellwig, the pathologist, after making the examination was “cellular neurofibroma.” This procedure, called a “biopsy,” was not attacked, nor was it contended that Doctor Hellwig was not a qualified pathologist. None of the witnesses for the plaintiff contended that a biopsy is not an approved method of determining whether a growth is a malignancy or a nonmalignancy. Doctor Tedrick, for the plaintiff, testified that “it is the most important method of diagnosing malignancy.” Dr. H. C. Wallace testified that if there is a question as to whether the growth is of a malignant character “we advise a biopsy.” Dr. John H. Wallace testified: “Q. One of the recognized rules of procedure here in Wichita and vicinity similar is that after a surgeon goes in and finds a tumor there, he should take a biopsy? A. Yes, sir. “Q. A piece of that, or two pieces, and deliver them over to the pathologist? A. In case of suspected malignancy, yes. “Q. After you opened up the abdomen and went in and found this tumor, that would be the proper method to pursue? A. Sure.” (Italics ours.) Plaintiff’s evidence certainly does not tend to support any allegation that the employment of biopsy, or reliance placed in laboratory diagnosis of malignancy, constituted malpractice. On the contrary, it might be urged that he would have been guilty of malpractice if he had not had such microscopic examination made and given weight to the report. Doctor Gouldner’s own postoperative diagnosis being that the plaintiff had a malignant growth, and that it was -inoperable, and the microscopic test confirming the diagnosis, is there any testimony here that the use of X-ray treatments constituted malpractice? We find none. Plaintiff’s witnesses testified to the contrary. Doctor Tedrick testified: “If there had been one (sarcoma) before the plaintiff had received this course of X-ray treatments, it is possible that it would have disappeared and I couldn’t see it here.” He also testified, as heretofore noted, that the tendency of X-ray treatments is to stop the activities and growth of malignant cells. Dr. H. C. Wallace testified: “X ray is used quite frequently to treat sarcoma, and there is always some destruction of normal tissues when deep therapy is given.” There was no medical testimony tending to show any malpractice on the part of Doctor Gouldner in connection with the later operation or treatments given the plaintiff. The appellant contends that neither Dr. H. C. Wallace nor Dr. John H. Wallace, being osteopathic physicians, was competent to testify concerning the procedure or methods used in making diagr nosis or concerning the treatment prescribed by Doctor Gouldner, a physician of the allopathic school. The general rule on this ques tion was stated earlier in this opinion. There may be doubt whether the facts here bring the case within the qualification of the rule and make the testimony competent. As to diagnosis, that doubt has been here resolved in favor of the plaintiff because there was testimony that for instruction in diagnosis of tumors, malignant and nonmalignant, the schools of osteopathy have generally used textbooks written by allopathic doctors, and that substantially the same methods of diagnosis are used by the two schools. ' Cases cited by appellee wherein the evidence was held sufficient to withstand demurrer have been examined. Based on divergent facts, they are not disturbing to the conclusion reached on the record before us. In our opinion there is no evidence in this case which would have supported a finding that the defendant had been guilty of malpractice, and we find that the trial court erred in overruling the demurrer to plaintiff’s evidence and in overruling defendant’s motions for a directed verdict, and for judgment on the record. The cause is remanded with directions to enter judgment for the defendant.

The opinion of the court was delivered by Harvey, J.: Plaintiffs, alleging they were the owners of certain real property and that defendants were their tenants, sued to recover rents claimed to be due. Defendants answered that the deed by which they had conveyed the property to plaintiffs and the lease contract containing an option for them to repurchase the property, on which plaintiffs predicated their suit, evidenced a debt and were intended as a mortgage. A trial by the court resulted in a judgment for defendants, holding the instruments created the relation of mortgagor and mortgagee. Plaintiffs have appealed. The facts disclosed by the record, so far as pertinent to the questions before us, may be summarized as follows: In 1901 defendants leased from the then owner, who apparently is now not a party to this action, a farm of 130 acres adjoining the city of Holton, in Jackson county. They moved on the farm and occupied it as tenants until 1909, at which time they bought it for $15,000, paying $2,000 in cash and giving a first mortgage for $10,000 and a second mortgage for $3,000 on the land. They then began to improve the premises and planted forty acres of it to orchard, nursery and small fruits, specializing in strawberries, and developed a large local and mail-order business. By 1914 the mortgages they had given on the property were coming due and the holders wanted payment. Plaintiffs, doing business as Klusmire Brothers, were engaged in the hardware business at Plolton, and defendants were indebted to them on account about $2,000. The defendant, Mr. Dixon, went to the plaintiff, Henry Klusmire, and wanted plaintiffs to make him a loan on the place to take up his indebtedness. Plaintiffs already had purchased, or agreed to purchase, the $3,000 second mortgage. Mr. Klusmire told Mr. Dixon he wanted all of it, including the indebtedness on the account, to be secured by the land'. They talked about the rate of interest. Mr. Dixon wanted to pay five percent; Mr. Klusmire said he would have to have six percent. Mr. Dixon agreed to it. Then Mr. Klusmire said “he would have to have a deed for it for security, under a contract which would be the same as a mortgage.” Mr. Dixon preferred to give a mortgage. They talked about it several times; once at the bank, when Mr. Klusmire told him that he would have to have his security in the form of a deed; that he had talked with his attorney about it and that a deed with a contract under which defendants could purchase the property would have the same effect as a mortgage, and he referred him to his attorney, Mr. Guy L. Hursh, a capable, reputable lawyer then in the practice at Holton, who would prepare the papers. Mr. Dixon went to Mr. Hursh, who told him the same thing with respect to the effect of the instruments as Mr. Klusmire had told him. One or the other of them told him that if plaintiffs took a mortgage it would have to be recorded and they would have to pay taxes on it, while if it were handled by a deed with a contract to repurchase, the contract would not be taxable. At that time real estate mortgages were taxable under our law at the same rate as other property. Our present mortgage registration law (G. S. 1935, 79-3101 et seq.) was not enacted until 1925. With some reluctance the defendants executed the instruments in the form desired by the plaintiffs and as recommended by their attorney and upon their assurance that the legal effect was the same as a mortgage. These instruments consisted of a general warranty deed from defendants to plaintiffs, and a lease, in a form common for farm leases, for one year, but containing in it a clause under which defendants could purchase the property, subject to the $10,000 first mortgage, for $6,400, which was the amount of the second mortgage on the land which plaintiffs had purchased and the indebtedness of defendants to plaintiffs. The rent to be paid was $1,109.22 and was figured at six percent on the total indebtedness, $16,400, and the taxes on the land. ■ It also contained a clause that if the rentals were paid it would be extended for another year. Three written renewals were made, the last one in 1924. The amount to be paid for repurchase varied, the last one being $16,000, and the annual rentals six percent of that, or $960. In the meantime plaintiffs had paid the $10,000 mortgage. The other renewals contained different sums. It is, however, conceded that the annual payments to be made, and spoken' of as rent, but intended as interest, always were computed at six percent upon the then existing indebtedness, which was stated in the instrument as the amount defendants were to pay in order to repurchase the property, and always in addition to those payments the defendants were to pay the taxes upon the property. Plaintiffs alleged that defendants held over, with their consent, under the 1924 lease, and were therefore tenants from year to year. This arrangement continued until sometime, perhaps in the fall (the specific date not shown) of 1938, when this action was brought. The sum then sued for was $911.13, and it was alleged this included a part of the payments due for 1937. The evidence disclosed that these payments were made promptly up to and including the year 1932; that since that time they had not been so promptly made. Sometimes plaintiffs paid the taxes and defendants reimbursed them, and at one time there was an assignment of some rents from a filling station defendants had built on the premises; There was evidence that defendants made lasting and valuable improvements on the property. They constructed two large stone sheds in which to handle their nursery stock and fruits, and about 1926 built an office building. They kept other buildings in repair. In 1924 they built a filling station on the property at a cost of $1,700, which they leased for a time for $600 a year, and later for $480. In 1931 they thought they had an opportunity to sell the filling station and ground for $6,000. Defendants’ son, Leon Dixon, who had been working with his parents, talked to plaintiff Henry Klusmire about it. He testified: “I asked Henry about selling, I said if we sell that and turn that $6,000 in on this mortgage, this $16,000, he said that would be all right and I said that would cut the interest down and be better for both of us. I wanted $1,000 out of it myself for building it up, he did not think so and I finally agreed the whole $6,000 go in if we sold it, he was willing to accept it.” For some reason this sale was not made. Defendants built a cement foundation- — a low-water bridge- — across the creek at a cost of $500. They cleared timber off some of the land and tiled the bottom land inclined to be wet, putting in nearly 300 rods of 3-inch tiling. This work took the time of ten to fifteen men for nearly a month. In all respects they used and improved the property as owners subject to a mortgage. The court found “that the instrument executed and delivered by the defendants F. W. Dixon and Anjenette Dixon to H. J. Klusmire and Charles H. Klusmire on the 22d day of September, 1914, and the instruments executed in connection therewith is and was at all times, by the parties, plaintiffs herein and F. W. Dixon and Anjenette Dixon, intended to be and by them at all times treated as a mortgage and not as a deed.” The judgment appealed from was rendered in harmony with the above findings. Appellants cite Holuba v. Floersch, 142 Kan. 601, 50 P. 2d 1004, holding that before a court should construe a deed to be a mortgage to secure a debt the record should disclose that a debt exists, and many of our earlier cases to the same effect. There is no controversy in this case over that principle of law. It is conceded to be well established. It next is argued that “all, not just part of the parties” must consider the deed a mortgage in order to make it one, citing Reeder v. Gorsuch, 55 Kan. 553, 40 Pac. 897; Root v. Wear, 98 Kan. 234, 157 Pac. 1181. We shall not stop to consider whether this is stated in the most appropriate form. For the purpose of this case it may be considered as being well stated. In this connection it is pointed out that Henry Klusmire transacted the business with the Dixons and that Charles Klusmire was not present, and he testified in substance that he considered the instrument a deed and not a mortgage. If by this contention appellants seek to divide their interest so as to treat the deed as though there were two deeds, one to Henry Klusmire and the other to Charles, it is sufficient to say the point never was raised in the trial court. Indeed, all the pleadings treat the interest of the plaintiffs as being a common one. Plaintiffs were partners, doing business as Klusmire Brothers. If in transacting this business Henry was not acting for both of them, and if Charles had no transaction with defendants, then he has no real interest in this lawsuit. Obviously the point is an afterthought and lacks merit. Appellants next argue that the legal presumption is that deeds and other written instruments pertaining to land titles are what they purport to be on their face, and that to justify a court in holding that a deed, absolute on its face, was intended as a mortgage, proof to that effect must be clear and convincing, citing Wiswell v. Simmons, 77 Kan. 622, 625, 95 Pac. 407; Hockett v. Earl, 89 Kan. 733, 735, 133 Pac. 852; Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127, and other cases to the same effect. The rule is well recognized. Its application is for the trial court. In other words, the trial court, in a case of this character, must keep in mind that to support a claim such as defendants made in this case the evidence to establish it must be clear and convincing. This court assumes the trial court knew of this rule and applied it. (Wooddell v. Allbrecht, 80 Kan. 736, 104 Pac. 559.) Even where proof must be beyond a reasonable doubt, this court assumes the trial court knew and applied the proper rule as to quantum of proof. See Kull v. Pearl, 147 Kan. 329, 337, 76 P. 2d 790, and cases there cited. Appellants argue that parol evidence to contradict the deed and lease were improperly admitted. The point is not well taken. Frequently parol evidence is the only type of evidence in such a case, and the courts always have regarded it as competent. (Republic Mutual Fire Ins. Co. v. Johnson, 128 Kan. 323, 326, 327, 278 Pac. 48; Robinson-Patterson Coal Co. v. Morgan, 130 Kan. 679, 288 Pac. 555.) Ordinarily the only controversy is whether it is sufficient to overcome the legal presumption that the instrument is what it purports to be on its face. See Lindberg v. Pence View Farming Co., 140 Kan. 138, 33 P. 2d 1102, and authorities there cited. It next is argued that the value of the land secured was not a determining feature. The evidence in this case was to the effect that the land was of the reasonable value of $22,900 in 1914, at the time of the transaction in question. It may be conceded that this fact alone would not be controlling. It is simply one of the facts proper to be considered by the court and given such weight as it should receive in view of all of the other facts and circumstances shown by the evidence. Appellants next argue that the evidence, being documentary, this court is not bound by the construction placed thereon by the trial court, citing Hamilton v. Talbot, 140 Kan. 20, 34 P. 2d 553; Wollard v. Peterson, 143 Kan. 566, 56 P. 2d 476; DePee v. National Life & Accident Ins. Co., 144 Kan. 751, 62 P. 2d 923; Goldburg v. Central Surety & Ins. Corp., 145 Kan. 412, 65 P. 2d 302. The difficulty of applying this rule here is that all of the evidence was not documentary; in fact, on the controverted question at issue, most of it was parol testimony, which it was the function of the trial court to weigh. Lastly, it is argued that the findings and judgment of the trial court were not supported by clear, convincing and satisfactory proof. We have not attempted here to set out all of the evidence, but rather a summary of that which tended to support the judgment. We have considered all of the evidence disclosed by the abstract and all that counsel have said about it in their briefs. We have no hesitancy in saying that there was ample, competent evidence to support the finding and judgment of the court. We find no error in the record. The judgment of the court below is affirmed.

The opinion of the court was delivered by Harvey, J.: A rehearing was granted in this cause, the record has been examined again, and all the briefs and arguments of counsel have been reconsidered. The court finds no reason to disturb its former decision, and it is adhered to.

The opinion of the court was delivered by Smith, J.: This was a garnishment proceeding wherein the plaintiff in an action for damages sought to collect the judgment she had obtained in her damage action from a corporation she claimed was indebted to the defendant in that action. Judgment was for the plaintiff. The garnishee appeals. At the outset the garnishee demanded a jury trial. This was denied. The facts were found by the trial court in substance as follows: At the time the cause of action for damages arose the Employers Casualty Company had issued to Montgomery county a policy covering a Ford truck and certain other motor vehicles. This policy was introduced in evidence and is a part of the record before us. It is a construction of this policy which is involved in this proceeding. In the policy the company agreed to insure, wherever used in connection with agreements A and B in it, not only the named insured, but any other person or organization while using the automobile, provided the actual use of it was pleasure and business or commercial, as defined in the policy, and the use was with the permission of the named insured. At the time the cause of action arose out of which this proceeding grows, this policy was in full force and effect. On October 28, 1935, Montgomery county was using this truck in transporting men from the place of work where they had been employed to Independence. Ed Behner was driving the truck, with the consent of the county. It had been used for this purpose for several years and Behner had been driving it. Albert Elliott was riding the truck on this day. He did not pay anything or receive anything for transportation. The employees could ride in the truck if they wished, but it was not a requirement of the county that Elliott or the employees ride in this particular truck, and they had the privilege of providing their own conveyance to their work. The employees were paid on the basis of eight hours a day, and their time started at eight o’clock on the job and they quit at five on the job, and then could return to their homes any way they saw fit. Ed Behner, who was driving the truck, received twenty cents a day extra and transportation for driving. On the day in question, about five-thirty in the evening, Ed Behner was driving the truck, and Elliott, with other employees, was riding it back to Independence. A collision occurred which resulted in the death of Elliott. Written notice of the collision was given the insurance company, as required by the terms of the policy, and the company investigated the facts pertaining to the accident. Thereafter, on August 13, 1936, Mabel Elliott filed an action for damages against Behner. On August 15, 1936, Montgomery county gave written notice to the garnishee company of the filing of the action and sent it a copy of the petition. They stated in the notice that the county and Behner expected to defend the action. On September 22,1936, the company denied liability under the terms of the policy and advised the county that any assistance in the defense of the action must not be construed as an admission of liability on the part of the insurance company. Thereafter the garnishee refused to defend Ed Behner and he conducted the defense through his own attorney. The lawyers for the garnishee were notified by counsel for the plaintiff of the various steps taken in the action, and one of them was present part of the time during the trial in district court, but made no appearance, and one of them was present in the supreme court when the appeal in the damage action was presented. The damage action resulted in a judgment for $5,000 for plaintiff against Behner. This judgment was affirmed on appeal. Montgomery county was not a party to this action. An execution against Behner was issued and returned showing no property found. Subsequehtly Behner was adjudged a bankrupt and his estate was a non-asset estate. No part of the judgment against Behner has been paid. The plaintiff in the damage action caused a garnishment summons to be issued against the insurance company. That compañy answered that it was not indebted to Behner. The plaintiff elected to take issue with the garnishee on that answer. The trial arose on the above pleadings. At the time Behner was using the truck and caused the death of Elliott he was using it for purposes within the permitted uses under the policy contract, namely, that of transporting employees of Montgomery county to and from their place of employment. The court held as a conclusion of law that at the time of the service of the garnishment summons upon the garnishee it was indebted to Behner in the amount of $5,000, the amount of the judgment, with interest and costs, and that by reason thereof Mabel Elliott was entitled to recover from the garnishee $5,000, with interest and costs. The garnishee was ordered to pay that amount to the clerk of the court to be applied on the judgment of Mabel Elliott against Behner. A motion for a new trial was filed and overruled. Judgment was rendered in accordance with the findings of fact and conclusions of law. The garnishee appeals. On his argument in this court the garnishee presents six questions. They are as follows: 1. Did the garnishee waive any of its rights under the policy, and is it estopped from asserting its non-liability under the policy in the garnishment proceedings? 2. Is it entitled to judgment because the liability of or the death of Elliott was excluded under the provision that the company will not be liable for loss or damage: . . . because of bodily injury to any employee of the assured, except household servants other than chauffeurs, while engaged in any business or occupation of the assured? 3. If this court should hold that Elliott was not an employee of the assured, does the garnishee have a further defense under the terms of the policy which arises out of the fact that Elliott was a passenger in the truck of the assured on the occasion of the accident? 4. Must the liability of the garnishee be determined in accordance with all of the provisions of the policy? 5. Did the trial court err when it denied the request of garnishee for a jury trial? 6. Did the trial court disregard the express terms and conditions of the policy and thereby nullify the contract between the parties, in violation of section 10 of article 1 of the constitution of the United States? As to the first question argued by the garnishee, that is, that it did not waive any of its defenses under the policy, it appears that the trial court did not place its decision on that point. While it is argued^ vigorously by the garnishee, it is not pressed by the plaintiff here, and since the conclusion we have reached upon the cause does not depend on the answer to that question, it will not be considered further. The next question argued by the garnishee is that it is not liable under a certain clause of the policy. The policy provides, in part, as follows: “Unless otherwise provided by agreement in writing added hereto, this company will not be liable for loss or damage: . . . because of bodily injury to any employee of the assured (except household servants other than chauffeurs) while engaged in any business or occupation of the assured . . .” Garnishee argues that Elliott was an employee engaged in the business or occupation of the assured, that is, the county, when he was killed, and on this account it is not liable under the policy on account of his death. The answer to be given depends upon whether under the facts and circumstances of this case Elliott at the time he was killed was an “employee” of the assured and “engaged in the business or occupation of the assured.” It will be noted that in order for this exemption to apply Elliott must have been an “employee” of the assured, but he must also have been killed while he was engaged in the “business or occupation of the assured.” At the outset of this decision it is wise to note that in cases involving the construction of an insurance policy, where the terms of the policy are obscure or open to two constructions, the construction most favorable to the insured must prevail. (See Bank v. Colton, 102 Kan. 365, 170 Pac. 992, and School District v. North River Ins. Co., post, p. 894, 96 P. 2d 610.) In cases where a policy of insurance is so drawn as to require an interpretation, a construction most favorable to the insured will be adopted, for the reason that the company prepares the contract of insurance, thereby using its own language. (See Brown v. Accident Insurance Co., 114 Kan. 337, 219 Pac. 505.) In this case the clauses tinder consideration are not clear and certainly require interpretation. It is clear that everyone who is engaged in the business or occupation of the assured would be its employee, but not every employee is engaged in the business or occupation of the assured all the time. After Elliott arrived home and went about affairs there he would still be spoken of as an employee of the county, but if he should have been injured by some accident while in his home it would hardly be maintained that he was injured while employed in the “business or occupation” of the county. In this case Elliott had finished eight hours work for the county. The trip home in the truck was no part of his employment. He paid nothing for it and could ride in the truck or not as he saw fit. He was performing no service for the county when thus riding. The county engineer testified to this effect and it was not disputed by the garnishee. In this connection the garnishee points out certain language used by the trial court in finding of fact No. 11, after referring to the fact that the transportation of employees was within the permitted uses of the truck. That language is as follows: “The court further finds that at the time the said Ed Behner was using the said truck and caused the injury and death to the said Albert Elliott that he was using the same for purposes within the permitted uses under the policy contract, namely, that of transporting employees of Montgomery county, Kansas, to and from their place of employment, which transportation was pursuant to consent and custom of Montgomery county, Kansas, and had been for some time prior to the accident; such transportation being an implied condition of Albert Elliott’s', the deceased’s, contract of employment with Montgomery county, Kansas.” The garnishee argues that the above finding brings Elliott under the terms of the exemption which is relied on here. If this language should be given that construction as a finding of fact, then such a construction is inconsistent with the finding of fact No. 2, which was as follows: “That on the 28th day of October, 1935, the named assured, Montgomery county, Kansas, was using the said truck in transporting men from the place of work where the men had been employed, to Independence, Kansas, and the said defendant, Ed Behner, was driving said truck, with the consent of the named assured, and the said driver had been driving said truck and the county had been using said truck for this purpose for several years. Albert Elliott did not pay anything or receive anything for his transportation. The employees could ride in the truck if they wished, but it was not a requirement of Montgomery county, Kansas, that Mr. Elliott or the employees ride in this particular truck, and they had the privilege of providing their own conveyance to the work. The employees were paid on the basis of eight hours a day, and their time started at eight o’clock on the job and they quit at 5 o’clock on the job, and then returned to their homes any way they chose. The defendant, Ed Behner, who was driving the truck, with the consent of the county, lived in Cherryvale, Kansas, and received 20 cents a day extra and transportation for driving the truck.” That part of finding No. 11 upon which the garnishee depends is really a conclusion of law which is not supported by the other findings and the undisputed evidence. In the second place, the transportation could be an “implied condition of the contract of employment,” and still Elliott would not be engaged in the “business or occupation” of the county when he was killed. There is language something like that in this contract in G. S. 1935, 44-501, the workmen’s compensation act. That section reads, in part, as follows: “If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman . . .” This court has held that an injury must “arise out of” and happen “in the course of” the employment in order for the workmen’s compensation act to apply. (See Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542, and cases cited.) There this court said: “JDid the accident which caused plaintiff’s injury arise ‘out of’ his employment? ' Even when other conditions exist authorizing the award of compensation, it is.essential that the accident which cahses injury to the employee arise ‘out of’ and ‘in the course of’ his employment. Both conditions must exist. (Bevard v. Coal Co., 101 Kan. 207, 208, 165 Pac. 657; Haas v. Light & Power Co., 109 Kan. 197, 203, 198 Pac. 174.) The terms are not to be confused. They mean separate things. ‘In the course of’ employment simply means while the employment was in progress. (Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863.) Those words point to the time, place and circumstances under which the accident took place. (State Highway Commission v. Saylor [Ky.], 68 S. W. 2d 26.) Applying these authorities to the accident which caused claimant’s injury in this case, there is no difficulty in saying that the accident arose ‘in the course of’ his employment. But that is not enough. It inessential also that it arose ‘out of’ the employment . . .” (p. 200.) It is, not enough that the person injured- be an employee of the assured for this clause to exempt the’ garnishee from liability, the injury must also have happened -while the injured man was engaged in the “business or occupation” of the assured. Elliott was not so engaged when the accident occurred. We shall next consider the argument of the garnishee that it has a further defense under additional separate exclusion clauses of the policy. The first one of these we shall consider is clause (b). That clause provides as follows: “Unless otherwise provided by agreement in writing added hereto, this company will not be liable for loss or damage: . . . (b) While the automobile described is used as a public or livery conveyance for carrying passengers for compensation; or while rented under contract or leased; or operated in any race or speed contest; or while being used in any illicit or prohibited trade or transportation; or while being used for demonstrating or testing.” The garnishee points out that Behner, the driver of the truck, was given 20 cents a day for driving this truck; that the county had the truck there for Elliott to ride if he cared to ride, and argues from these facts that Elliott was a passenger, was being carried for compensation, hence the clause quoted above excludes the garnishee from liability. It will be noted that three conditions must be met here; that is, the truck must have been used as a “public or livery” conveyance for carrying “passengers,” and this carrying must have been for “compensation.” It is hard to see how the first condition is met here. An agreement was made by the parties as to some of the facts. It was agreed “the county transported the men from the county garage in Independence to and from their work, and had done so for a number of years,” and, also, it is further agreed that on the occasion of said accident Ed Behner was driving said truck by reason of his employment with Montgomery county and he never invited nor permitted Elliott to ride on the truck. He had no right to select or determine who should ride nor to exclude any member of the crew. These admissions must be considered together with the undisputed testimony and the findings of the trial court. When this is' done it does not appear that the use of this truck was for the public. That word, when used in connection with the carrying of passengers, implies the holding out of the vehicle to the general public for carrying passengers for hire. Here the carrying of passengers was limited to the members of the bridge crew. Furthermore, the word “livery,” when used in such a connection, has about the same meaning. The term “public conveyance” was defined in 6 Berry on Automobiles, sec. 6.617, as follows: “It is a public conveyance because indiscriminately it conveys the public. It is not private, because its use is not limited to certain persons and particular occasions, or governed by special terms.” The authorities cited and relied on by the garnishee on this point are all cases where the vehicle was held out to carry the public, or the words of the exclusion clause are broader than those of the clause we are considering. Here, too, the rule that ambiguous clauses in policies must be given the interpretation most favorable to the insured is in point. The next argument of the garnishee is that it has a further defense on account of the following clause: “Unless otherwise provided by agreement in writing added hereto, this company not liable for loss or damage. . . .” Under Agreement A for injury to any passenger while in the automobile described in the declarations as “commercial” if used for passenger carrying purposes, regardless of whether a consideration is charged for the carrying of such passengers. The garnishee argues that this must be construed in connection with section 5 of the Declarations. That section provides as follows: “The automobile described is and will be used for the following purposes only: ‘Business and Pleasure.’ (a) The term ‘Pleasure and Business,’ when so used, is defined as personal, pleasure and family use, including business calls, (b) The term ‘commercial,’ when so used, is defined as the transportation or delivery and the loading and unloading of goods or merchandise in direct connection with the assured’s occupation as expressed in warranty 1.” There are several words and terms that must be construed in dealing with this argument. In the first place, to what does “Agreement A” in the above clause refer? Agreement A reads as follows: Bodily Injury Liability “Agreement A — To insure the assured against loss by reason of the liability imposed upon him by law for damages because of bodily injury, including death at any time resulting therefrom (herein called ‘bodily injury’) sustained by any person or persons, accidentally caused and arising out of the ownership, maintenance or use of the automobile described in the declarations for the purpose therein stated. The company’s limit of liability, regardless of the number of-assured, as respects each automobile described, for bodily injury to or death of one person, shall be as first set forth in item 1, paragraph C, of the declarations and, subject to that limit for each person, its total liability on account of any one accident resulting in bodily injury to or death of more than one person, shall be as second set forth in said item.” It will be seen that the above is the insuring clause for situations such as we have here. In the next place, to what does the word “declarations” refer, as used in both the above clauses? There is a section of the policy headed “Declarations.” The clause preceding it is the first clause of the policy, and reads as follows: “Does hereby agree with the assured, named in the Declarations made a part hereof (herein called ‘named assured’) as respects any or all of the following coverages for the automobile herein described, for which specific premium charge or charges are made in the respective columns provided therefor in said Declarations, and subject to the terms, provisions, limits, conditions and exclusions hereof, as set forth herein;” Under the heading “Declarations” appears a space for the name of the insured with the name “County of Montgomery, State of Kansas” written in with a typewriter. Then the date when the term of the policy begins and ends. Then follows a clause’ providing as follows: “This insurance is against only such and so many of the agreements named in the schedule below as are indicated by a specific premium in writing set opposite thereto. The limit of this company’s liability against each of such agreements shall be as stated in a special and/or general conditions of this policy, not exceeding, however, the limits stated in said schedule.” Following this appears three columns — one headed “schedule of agreements,” the next “limit of liability,” and the next “premiums.” Under the first column “bodily injury,” as defined in Agreement A, page 2, is printed. Under the second, $10,000 is written first, with a typewriter, and $20,000 second. In the third column $188.37 is written in with a typewriter. Then follow some clauses with which we are not particularly interested. Then a clause as follows: “4. The description, of the automobile and the facts respecting its purchase are as follows:” And following that is written in with a typewriter the words “See schedule attached.” A schedule is attached on which appears a description of several automobiles and trucks, including the truck with which we are interested. After the paragraph wherein appears the words “see schedule attached” there is a paragraph reading as follows: “The automobile described is and will be used for the following purposes only.” Written in a blank space provided appear the words “business and pleasure.” Following that are the two clauses— “(a) The term ‘pleasure and business,’ when so used, is defined as personal, pleasure and family use, including business calls. “ (b) The term ‘commercial’ when so used, is defined as the transportation or delivery and the loading and unloading of goods or merchandise in direct connection with the assured’s occupation as expressed in warranty 1.” Warranty 1 is a statement that the assured is Montgomery county. We will now return to an examination of the exemption clause under which garnishee seeks to avoid liability. It will be remembered that this clause only applies if the injured party suffers an injury while in the automobile described in the declarations as “commercial” if used for passenger carrying purposes. We have seen that the truck in this case is described as “business and pleasure.” The policy was prepared by the assurer. The words above quoted were undoubtedly written in there by the company when the policy was being sold to the county. There is no evidence here nor is the claim made that wrong information was given the company. The fact remains that the exemption clause refers to “commercial” and the declarations state that this car was to be used for pleasure and business. Both terms are given a definite meaning in the policy and it would not do for us to hold that one term meant the same as the other. The different clauses of the policy have been set out in detail so that it may be plainly seen that the clause in question is not clear and the interpretation of it requires an examination of the entire policy. The next question argued by the garnishee is that its liability must be determined in accordance with all the provisions of the policy and that no cause of action could arise against the company until there had been a compliance with all the conditions. The clause of the policy, pursuant to which this argument is made, reads as follows: “(3) Determination of Company’s Liability. — No cause of action against the company shall be had under agreements A or B of this .policy until the amount of loss or expense shall have been determined, either by final judgment against the assured after actual trial in an action defended by the company or by a written agreement of the assured, the claimant, and the company, nor in either event unless suit is instituted within the time herein limited.” The argument of garnishee is that there can be no cause of action against it until the amount of loss or expense shall have been determined, either by final judgment against the county after actual trial in an action defended by the county, or by written agreement between the assured, the claimant, and the appellant. The clause relied on in this connection must be considered in connection with section 15 of the policy. That section reads as follows: “Wherever used in connection with agreements A and B, the unqualified word ‘assured’ includes not only the named assured, but any other person or organization while using such automobile, including also any other person or organization legally responsible for the use thereof, provided the disclosed and actual use of such automobile is ‘pleasure and business’ or ‘commercial,’ each as defined herein, and further provided that such use is with the permission of the named assured ...” No argument is made here but what Behner was using the truck with the permission of the county and met with the provisions of the policy in other respects as found by the trial court. In connection with agreements A and B of the policy the garnishee agreed to defend in the name and in behalf of the assured any suit seeking damages. Under the provisions of section 15 of the policy quoted above and the facts and circumstances in this case the obligation was to defend Behner as well as to defend the county. The garnishee had notice of the pendency of the action for damages, was advised of the claim, and knew of each step taken in the damage action. This action is somewhat analogous to Robertson v. Labette County Comm’rs, 122 Kan. 486, 252 Pac. 196. There Labette county had taken out a workmen’s compensation policy on its employees. While building a road a workman was injured and the county and the insurance company denied liability under the workmen’s compensation act and the policy. This court excused the county because at that time the county could not elect to come under the act. The insurance company was held liable under some provisions of the policy, which provided for a liability direct from the employee to the company. There, as here, the insurance company denied liability because there was no liability on the county. This court said: “It is argued on behalf of the insurance company that if the county was not obligated to pay plaintiff compensation on account of his injuries, then the insurance company was not; that the obligation of the insurance company was to indemnify the county against loss by reason of its liability to its employees, and since the county had no such liability, the insurance company had none. This construction of the policy is inaccurate. The policy does contain provisions to indemnify the county, defend its suits, pay its losses, etc., and since the county has no liability to plaintiff because of his injury, the insurance company is not liable under those provisions of the policy. But these are not the only provisions of the policy. The policy contains provisions creating a direct liability on the part of the insurance company to the injured employee, ■ and by various provisions that is made specific and definite in the policy.” (p. 489.) In this case the plaintiff could not have obtained a judgment against the county for the injury to her husband. Counties are only liable as provided by statute, and it is not argued that this was such a case. In this argument the garnishee is taking the position that it may sell the policy and take the premiums and never be liable, because the only way a county could be liable for the death or injury of anyone would be for them, to recover on account of a defective highway. There are, however, provisions in the policy that have been quoted and discussed heretofore, making the garnishee liable for an injury caused by an automobile covered by the policy when it is being driven by some one with the consent of the county. We hold that under all the facts and circumstances this is such a case. The garnishee next argues that the trial court erred in denying it a trial by jury. It argues that as between it and plaintiff this was an action for money in which there were disputed questions of fact. G. S. 1935, 60-2903 provides: “Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code.” Reference is made to section 5 of the Bill of Rights of the state constitution and section 1 of the 14th amendment to the constitution of the United States. Without discussing the question of whether a garnishment proceeding is one where a trial by jury may be demanded as a matter of right, we will examine the issues of fact presented and argued by garnishee. First, it argues that it was a question of fact for a jury to determine whether there had been a final judgment against the assured after actual trial in an action defended by the company. The determination of this fact depended on the construction of the contract in view of the facts in the written stipulation. No testi•mony was offered by either party that would bear on that question. The garnishee next argues that it was a question of fact whether Elliott was an employee of the assured. As has been demonstrated, that question was answered by the trial court from the admitted facts and undisputed testimony. We have examined the other questions of fact pointed out by the garnishee and have concluded that they are all determined upon an agreed statement of facts, the undisputed testimony and the policy itself. The garnishee was not prejudiced in presenting its case by the denial of a trial by jury. Under such circumstances we will not examine the interesting ques tion of whether in a garnishment proceedings the garnishee is entitled . to a jury as a matter of right. The next argument of the garnishee is that the lower court disregarded the plain terms of the contract and made a new contract for the parties in violation of section 10 of article 1 of the constitution of the United States. The trial court did not make a new contract. It merely construed the one between the parties, albeit as announced early in this opinion, where the .language was ambiguous or the interpretation doubtful the construction most favorable to the assured was adopted. There is no constitutional inhibition against that. The plaintiff filed a motion wherein she requested a modification of certain findings. The concluson we have reached as to the main appeal makes it unnecessary that we consider this cross-appeal of plaintiff. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Smith, J.: This is an original proceeding in quo warranto. The form of the action is to question the right of the governing body of the city of Lawrence to enter into a lease with the military board of the state for the use of a building which the city authorities contemplate building. The facts are agreed upon. They are as follows: On April 4, 1939, an election was held in the city of Lawrence at which a majority of the votes were cast in favor of the issuance of not to exceed $75,000 in bonds of the city, the money to be derived from the sale of these bonds to be used for the construction of a national guard armory and community building to be built in the city. This election was had in conformity with and under the authority of G. S. 1935, 12-1647. The city is proceeding with the procurement of a site and the erection of a building and has made a contract with the military board whereby the city has agreed to rent this building to the military board for a term of two years, to be used as a national guard armory by the national guard organizations stationed in the city. The board has agreed to pay the city $2,400 annually as rent. No question is raised by anyone as to the right of the city to vote bonds for the erection of an armory. (See G. S. 1937 Supp., 12-1646.) Sometime during the progress of or subsequent to the bond election some one questioned the authority of the city governing body to charge rent for the use of a building as a national guard armory. On account of this question being raised this action was brought by the attorney general at the request of the city governing body so that the authority in the matter might be settled. It is one more of the many cases where quo warranto is used in the nature of a friendly action to settle the rights of parties before anyone has been damaged. The position of the city is that since by the terms of G. S. 1937 Supp., 12-1646, the legislature gave the city the authority to build a national guard armory the authority to lease the building to the military board is implied. It would be easier to agree with this argument were it not for the fact that the legislature has from time to time enacted statutes providing a policy for cities and counties in the matter of armories for the national guard. At the outset of this discussion it must be noted that there is nothing much better settled than the proposition that cities derive all their power from the legislature. Thus in 19 R. C. L., at page 768, we find the following statement:. “It is well settled that a municipal corporation has only such powers as are clearly and unmistakably granted to it by its charter or by other acts of the legislature, and consequently can exercise no powers not expressly granted to it, except those which are necessarily implied or incident to the powers expressly granted and those which are indispensable to the declared objects and purposes of the corporation. Any fair and reasonable doubt concerning the existence of the power, or any ambiguity in the statute upon which the assertion of the power rests, is to be resolved against the corporation and the power denied. When, however, power over a particular subject matter has been delegated . . . without any express limitations, the extent to which that power shall be exercised rests in the discretion of the municipal authorities.” We must examine the provisions of article 3 of chapter 48 of the General Statutes of 1935 to find where the legislature has provided for a policy in the relationship between cities and the military board. G. S. 1935, 48-301, provides as follows: “That the military board of the state is hereby empowered and directed to erect or provide, anywhere within the limits of this state, upon such terms and conditions as shall be decided upon by said military board as most advantageous to the state, armories for the use of the national guard of Kansas, which armories shall be used for drill, meeting and rendezvous purposes by the organization of the national guard occupying same, and such other public functions which the officers in charge of said armory may deem advisable and proper, and which shall also be opened for meetings and functions of the Grand Army of the Republic, the Spanish-American War Veterans, and their auxiliary organizations.” G. S. 1935, 48-305, provides as follows: “That such military board shall have power to receive from counties, cities, municipalities, or other sources, donations of land or contributions of money, buildings or other property to aid in providing or erecting armories throughout the state, for the use of the national guard of Kansas, and which shall be held as other property for the use of the state of Kansas; and such counties, cities or other municipalities are hereby authorized to make such contributions for the purpose of this act, and each city of the state of Kansas is hereby authorized and empowered to levy a tax upon all the property therein subject to taxation to raise the necessary money for said armory building and site herein specified: Provided, That no money shall be donated or tax levied until the same is authorized by a vote of the majority of electors in said city at an election called for that purpose.” G. S. 1935, 48-308, provides as follows: “That every city and county in the state of Kansas now having or that may hereafter have a national guard organization within its boundaries is hereby authorized and empowered to render such financial assistance as it may deem wise and patriotic to such national guard organization, either by donating lands or buildings, or donating the use of lands or buildings, or by contributing money to their equipment and maintenance,” The legislature has been making appropriations for paying armory rent for many years. The question we are discussing must in the nature of things have been considered by the legislature many times. It is worthy of note that the statutes quoted give the cities authority to donate an armory to the national guard, or donate the use of land or buildings, but nowhere do these sections give the city the right to furnish the armory and charge rent for it. At this juncture it must be pointed out that the authority for the action contemplated by the city must be found in the statutes. We are unable to find such authority. It should be noted here that we are not passing on the authority of a city to lease a part of a city building for limited periods where the use of the building by the persons paying rent is only occasional or is only incidental to the city’s use of the building. That question is not before us. We hold that the city is without authority to lease a building to the military board and charge rent for it for use as an armory. Judgment will be rendered for the plaintiff. It is so ordered. Thiele, J., not participating.

The opinion of the court was delivered by Wedell, J.: This was an action to cancel a regular producer’s oil and gas lease, commonly known as an “unless lease,” for failure to pay the annual delay rentals and for damages under the provisions of G. S. 1935, 55-202, for failure to release. Judgment went for plaintiff, and defendant appeals. The parties stipulated as to the amount of damages in the event cancellation was decreed. The court made findings of fact and conclusions of law. The findings were: “1. On December 18, 1933, F. W. Splitter was the owner, among other properties, of the real estate described as the east half (E%) of the northeast quarter (NE14) of section thirty-three (33), township ten (10) south, range seventeen (17) west, Rooks county, Kansas, and that on that date he executed an oil and gas lease which by assignment became the property of the Texas Company on March 23, 1936. “2. That on February 2, 1935, F W. Splitter signed an instrument which provided for the conveyance of one-fourth of the minerals under the real estate above described to the Skaer Oil Company. This instrument was taken to the Plainville State Bank by one A. M. Jennings. It was left with the cashier of the bank, who took the grantor's acknowledgment. The instrument remained at the bank until sometime in February, 1936, when A. M. Jennings obtained it from the bank and placed it of record on March 14, 1936. The instrument was not listed for taxation prior to March 1, 1936. “3V F. W. Splitter died February 3, 1936, and George L. Bement was appointed administrator of his estate. The application for his appointment recites that so far as the petitioner knew, F. W. Splitter left no last will and testament, lists certain known relatives, and recites that there are some other relatives whose names are unknown, but whose names and ages will be later furnished to the court. This was never done as far as the record discloses. Bement died May 2, 1936, and the plaintiff, Stanley E. Stady, was appointed administrator de bonis non and continued to act in such capacity until the time of his final discharge on November 18, 1937. “4. On October 19, 1936, the defendant wrote George L. Bement, requesting that he furnish proof of death and heirship of F. W. Splitter, deceased, and asked specifically for a certified copy of the final decree of distribution, if that had been entered, so that payment of delay rentals under the lease could be made. A form of proof of death and heirship was enclosed. The plaintiff Stady answered this letter on November 7, advised the defendant of the death of Bement and of his appointment- as administrator de bonis non, stated that as a relative he could make affidavit of the date of the death of F. W. Splitter, the names of the heirs, and the appointment of administrator, but -added: “'. . . it is my information that a suit to establish the contents of a lost will will in all probability be commenced, and I have some information of the existence of the lost will. I cannot, therefore, make an affidavit that no will exists.’ “And, also: “ ‘. . . I might inquire if it is not possible for you to pay the rentals to the depository designated in the lease, for the bank to hold until the ownership is established, or to me as an officer of the court.’ “The defendant company wrote the plaintiff Stady on November 30 that under the circumstances stated by him they could not pay the delay rentals to the heirs at law; that the Codell State Bank, the depository named in the lease, was no longer open for business, and then stated: . . we will appreciate it if you will advise us just as soon as it has been determined who are the heirs or beneficiaries of F. W. Splitter, deceased, in order that we may pay the delay rental as soon as it is determined who is entitled to such rental.’ “In December, 1936, the defendant paid one-fourth of the delay rental to the Skaer Oil Company and its assignees on the mineral interests referred to in the second finding of fact. “5. On February 2, 1937, an application was filed in the probate court of Rooks county, Kansas, to probate the last will of F. W. Splitter. The will was admitted to probate on February 17, 1937, and the plaintiff Stady under the terms of said will became the owner of the property in question. There was an appeal to the district court and the case was pending there without hearing until November 6, 1937, when the same was dismissed by the appellants. “6. There was no correspondence or negotiations between the plaintiff and the defendant in the period between November 30, 1936, and November 8, 1937. On the latter date the plaintiff wrote the defendant, advised that he inherited the real estate in question, and demanded a release because of the failure of the defendant to pay the rentals. The defendant answered on'November 13, advising the plaintiff that delayed rentals had been paid on the mineral rights, and that, if the litigation had been settled over the ownership of the land, if a certified copy of the decree was furnished to it, it would have the same examined and make prompt payment of the delay rental. Stady answered on November 19, again demanding a release of the lease. On November 7, 1937, Mr. Witt, representing the Texas Company, made a tender to Mr. Stady of sixty ($60) dollars, being three-fourths of the delay rentals for the years 1936 and 1937. This was refused by Stady, who again demanded a release of the lease-. “7. The plaintiff assumed' to act on behalf of the estate or beneficiaries under the will of F. W. Splitter, deceased, knew that the defendant was withholding payment of the delay rentals until it could be definitely ascertained who succeeded to the title of Splitter, and did not prior to his letter of Novem ber 8, 1937, furnish defendant with any evidence or information which advised the defendant of the successor in title to the property in question; nor did he prior to that time make any demand for payment of the delay rentals or for cancellation of the lease either on his own behalf or on behalf of anyone else. “8. That on the 12th day of October, 1937, the Producers Oil Company and/or J. C. Trigg commenced the drilling of an oil and gas test well on the southwest quarter (SW/^) of the east half (EVz) of the southwest quarter (SW/!) of section twenty-three (23), township ten (10) south, range seventeen (17) west, Rooks county, Kansas, and continued the drilling of said well until the 22d day of December, 1937, at which time it was completed as a dry hole, this test well being within one-half mile of the land covered by the aforesaid lease. “9. On November 8, 1937, the plaintiff filed an action in Rooks county, Kansas, to quiet the title to the land in question, making the Skaer Oil Company, and its assigns, and others, parties defendant. Since the well in the area had proven dry, the royalty owners had directed their attorneys to abandon the defense of the case, but at the time of the trial the action was undisposed of, as far as the records were concerned. “10. Had the Texas Company released the lease upon Stady’s demand, he could have and would have sold the lease for a total of $800. “The present action was instituted in March, 1938, and seeks a cancellation of the lease, $1,600 damages, statutory damages of $100, and a reasonable attorney’s fee. By answer the Texas Company made tender of any sum due to the plaintiff upon the interest of the plaintiff in said lease. By reply the plaintiff alleged the tender made on December 7, 1937, was insufficient and that by making the tender the defendant had waived the right to insist upon proof of ownership before payment. “11. The lease in question was the usual producer’s and contained the following stipulation: ‘If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed, the covenants hereof shall extend to the heirs, executors, administrators, successors or assigns, but no change in the ownership of the land or assignment of rentals or royalties shall be binding on the lessee until after the lessee has been furnished with a written transfer or assignment or a true copy thereof.’ ” The conclusions of law were: “1. The provision in the lease that an assignment of the ownership of the land would not be binding upon the lessee until it had been furnished with a written transfer or assignment or a true copy thereof, nor the failure or receivership of the depository bank named in said lease, did not relieve the defendant from payment of the rentals, but, at most, only relieved it from paying said rentals to the assignee until such information was furnished. If the lessee desired to retain the lease, it was necessary that the rental be paid. It could not sit idly by for a period of two years or as many years as was necessary to a final determination of the heirship in the Splitter estate. It is true the depository named in the instrument was defunct and the legal heirs were undetermined. This did not prevent the defendant from having a new de pository named by a court of equity and making the payment of rentals, if it desired to keep the lease alive. “2. Having reached this conclusion, it is unnecessary to make any finding with reference to whether a sufficient amount was tendered to the plaintiff. “3. The plaintiff is entitled to recover from the defendant the stipulated actual damages of eight hundred ($800) dollars, one hundred ($100) dollars statutory damages, and a reasonable attorney’s fee of two hundred ($200) dollars.” While defendant requested certain additional findings of fact, it now concedes the findings made were sufficient. It insists, however, the findings made require judgment in its favor. The lease contract provided: “If no well be commenced on said land on or before the 18th day of December, 1934, this lease shall terminate as to both parties unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the Codell State Bank at Codell, Kan., or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of (fifty cents) per acre, which sum shall operate as a rental and cover the privilege of deferring the commencement of a well for 12 months from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively.” (Our italics.) Under the terms of the “unless lease” defendant was, of course, not obliged to pay the delay rentals on December 18, 1936, the date they were due. It had the option to pay the rentals or to permit the lease to terminate in accordance with the terms of the lease contract. It is true forfeitures are abhorred by the law, but, strictly speaking, the question here involved is really not one of forfeiting some established right or interest which defendant had acquired by the expenditure of money in development of the lease, but rather a question whether defendant had failed to protect his contractual right to delay drilling. In other words, it was a question whether defendant had permitted the lease to expire by failure to comply with its terms. (Gasaway v. Teichgraeber, 107 Kan. 340, 191 Pac. 282.) The Codell State Bank was designated the depository for payment of delay rentals to the credit of the lessor, and under the terms of the lease that bank continued to be the designated depository regardless of changes in the ownership of the land. Did the fact the designated depository became defunct relieve a lessee or assignee from making the rental payments and thus continue the lease in force without such payment? The lease contract did not provide that a promise in good faith to pay after December 18, 1936, would keep the lease alive. It required actual payment or the contractual tender of payment. It was defendant’s duty to pay the rentals, and not the landowner’s duty to collect them. The fact that the depository was defunct, and that all the heirs were not known, did not prevent defendant from placing itself in such unequivocal position, as to rental payments, as would bind it to pay them and would make them available to those entitled to receive them. That defendant did not do. Manifestly it could not keep the lease alive by assuming a position which would not bind it to pay the rentals and which would not effectually make the rentals available to those entitled thereto. It is true the will, by which title to the land was devised to plaintiff, was not probated until February 17, 1937. The landowner, however, had died February 3, 1936, and the rental was not due until December 18, 1936. Defendant knew definitely, at least as early as November 7, 1936, that the ownership of the land was in doubt. Some of the heirs resided in the county in which the land was situated. They were subject to personal service in any action which might have been instituted by defendant for the purpose of protecting its rights under the lease. That a court of equity is vested with full power and authority to appoint a trustee to accept and to hold the rental payments for the benefit of such person or persons as ultimately should be decreed to be entitled thereto, cannot be doubted. Nor is there any valid reason why a court of equity itself could not have accepted such deposit of rentals for the benefit of those entitled thereto. Courts of equity are especially designed to meet exigencies arising from unexpected and unusual situations and are vested with power to adequately protect the interests of all concerned under the existing circumstances. In 21 C. J., Equity, § 13, the rule is stated thus: “The absence of precedents, or novelty in incident, presents no obstacle to the exercise of the jurisdiction of a court of equity. It is the distinguishing feature of equity jurisdiction that it will apply settled rules to unusual conditions and mold its decrees so as to do equity between the parties.” In Robinson v. Barrett, 142 Kan. 68, 45 P. 2d 587, it was held: “In an action to enforce specific performance of a contract to purchase an oil and gas lease, where the owner of the land by will devised it to his daughter, to be received by her when she arrived at twenty-eight years of age, and if she died before reaching that age ‘leaving no issue’ it should go to her brother, she being at the time of the trial married, twenty-four years of age and having no issue, it is held: (1) that an inferred estate was created for such issue in the event the daughter should die before reaching the age of twenty-eight years leaving issue; and further held (2) that the oil and gas lease signed by a trustee for such unborn devisees by direction of a court of equity under the facts and circumstances set out in this opinion conveys such contingent estate and makes the title of the lease merchantable.” (Syl.) Defendant contends a decree of a court of equity appointing a trustee to accept and to hold the rental payment would not have been binding upon all the heirs, as those residing in Germany could not have been served by publication service within time, assuming that publication service would have been valid in the instant case. The contention cannot be sustained. Manifestly, no service could have been had on the unborn and unknown devisees in the Robinson case, but that fact did not invalidate the decree which authorized the trustee, appointed by the court for such unborn devisees, to sign the lease. A decree appointing a trustee to receive rentals for the benefit of those entitled thereto would have been binding upon the heirs, in the event no will had been found, under the doctrine of representation. (21 C. J., Equity, § 284.) The doctrine of representation is applicable to unknown persons where they belong to a class and all have similar rights and where some of such class are actually before the court so that the interest is adequately represented. (21 C. J., Equity, § 295.) The doctrine is applicable to such parties where they are beyond the jurisdiction of the court. (21 C. J., Equity, § 296.) See, also, Robinson v. Barrett, supra, 73-75, where the rule and the basis therefor is clearly stated. Obviously, it could not be contended with merit by any heir or devisee, after payment by defendant in accordance with such a decree, that the lease had terminated for nonpayment of rentals. Defendant directs our attention to the provisions of the lease contained in finding number eleven. It is urged under that provision defendant was under no duty to pay the rentals until it had been furnished with authentic information as to the change of land ownership. We think that provision was intended to protect the lessee where he has paid rentals to the lessor in the absence of the specified notice of a transfer or assignment. In other words, in the absence of such notice, a transfer or assignment is not binding on the lessee and upon payment to the lessor the lessee will not be subjected to double liability. When so interpreted that provision harmonizes with the former lease provision heretofore discussed which authorizes the deposit of rentals to the credit of the lessor, regardless of change in the ownership of the land. Courts are, of course, required to harmonize contractual provisions when reasonably possible to do so. On the other hand, if defendant’s interpretation of the provision relied upon by it should be sustained, then a lessee would be permitted to prevent the expiration of an “unless lease,” contrary to its terms, without the payment of rentals to any one and without the lessee placing himself in an irrevocable position concerning their payment. A reasonable interpretation of the various lease provisions will not permit that result. Moreover, provisions of oil and gas leases, in the event of ambiguity, are ordinarily construed most strongly against the lessee and in favor of the lessor, and not against him and in favor of the lessee, as in the case of other leases. (40 C. J., Mines and Minerals, § 667; Wilson v. Wakefield, 146 Kan. 693, 695, 72 P. 2d 978.) Plaintiff insists various other contentions now advanced by defendant were not urged in the court below. That may be true. We note, however, that plaintiff also urges this court to decide issues not decided below. In view of the fact the trial court ruled only upon the questions whether defendant could have made effectual payment of delay rentals and should have done so, we need not discuss other contentions than those heretofore treated. The judgment is affirmed. Allen J., concurs in the result.

The opinion o'f the court was delivered by Hoch, J.: This was an action for damages resulting from a collision between plaintiff’s automobile and an automobile owned by the city of Independence and being driven by a city employee.' The municipality, Hackmaster, who was the city engineer, and Eades, the driver of the city automobile, were made defendants. A demurrer to the petition by Eades was overruled. Demurrers of the city and Hackmaster were sustained, and plaintiff appeals. The petition alleged that Eades, an employee of the city, had been employed for about ten days prior to September 15, 1938, the date of the accident, “in painting street numbers and signs, designating properties, on curbings authorized and designated by said city;” that the city automobile had been furnished him by the city engineer and that the work was being done under the direction of the commissioner of streets. It was alleged that the collision took place at a street intersection as a result of the negligent and reckless operation of the city automobile by Eades; that plaintiff’s car in which she was riding and which was being operated at lawful speed by Frances Bunn entered the intersection traveling north, and that the occupants observed the city car approaching from the west and that it was traveling on the wrong side of the street and that the driver was paying no attention to his driving and that the plaintiff’s car came to a stop near the center of the intersection and that the city car, still being driven recklessly and without regard for the safety of other persons, entered the intersection, striking the front end of plaintiff’s car and doing damage about which complaint is made. The petition further alleged that Eades did not have a driver’s license, that this fact was known to the city engineer and that the engineer had directed him to continue in the use of the car in spite of the fact that he did not have a driver’s license. The principal question presented is whether under the facts stated in the petition the city could be held liable. It is well settled as a general rule of law in this state that in the absence of statute imposing liability a city is not liable for the negligence or misconduct of its officers or employees in the performance of governmental functions. Many cases might be cited, among which are: Edson v. Olathe, 81 Kan. 328, 105 Pac. 521; Everly v. City of Gas, 95 Kan. 305, 147 Pac. 1134; Frost v. City of Topeka, 103 Kan. 197, 173 Pac. 293; Butler v. Kansas City, 97 Kan. 239, 155 Pac. 12; Perry v. City of Independence, 146 Kan. 177, 69 P. 2d 706; Kretchmar v. City of Atchison, 133 Kan. 198, 299 Pac. 621; Sroufe v. Garden City, 148 Kan. 874, 84 P. 2d 845; Rose v. City of Wichita, 148 Kan. 317, 80 P. 2d 1078. In Rose v. City of Gypsum, 104 Kan. 412, 179 Pac. 348, there will be found pertinent discussion of the distinction between municipal powers' which are governmental and public and those which it may exercise in a proprietary, commercial or ministerial capacity. Many other decisions are therein cited. Cities may be held liable for damages resulting from the maintenance of “public nuisances” or in cases involving activities which are commercial or proprietary and not connected with the performance of governmental functions. They are also liable, under requisite showing as to negligence, for injuries resulting from defects in public streets or sidewalks, but none of these exceptions to the general rule — if indeed they may be called exceptions — applies in the instant case. Eades was a city employee and according to the petition was driving the city automobile in connection with his work of “painting street numbers and signs, designating properties, on street curbings.” The service he was performing was a public service. It was governmental in character and no commercial or pecuniary interest of the city was being promoted. The city was making no profit out of the work he was doing. No defect in the street was involved in the accident. We find no cases to support appellant’s contention that a “public nuisance” was being maintained by the city on account of the action of the city engineer in permitting Eades to drive an automobile without a driver’s license, nor doés the dereliction of the city engineer in that matter constitute the driving of the automobile a “public nuisance” under any reasonable interpretation of the term. Nor does the fact that Eades did not have a driver’s license bear any causal relation to the accident. We find nothing in the facts of the. case to take it out from under the general rule. The demurrers of the city and the city engineer were properly sustained. The judgment is affirmed.

The opinion of the court was delivered by Harvey, J.: This was an action for the partition of two 80-acre tracts of farm land in Butler county. The titles were of record in the name of Clifton Dwight Healy, commonly known as C. D. Healy, at the time of his death, intestate, July 24, 1929. Plaintiffs are the children of C. D. Healy by his second wife. Defendants are his children and the children of a deceased child by his first wife. They claimed title to the land to the exclusion of plaintiffs by virtue of a deed executed by C. D. Healy in 1910 and which was found in his safety-deposit box in the bank after his death, and which defendants obtained possession of and caused to be recorded. The controverted question was whether the deed had been effectively delivered by C. D. Healy in his lifetime. The trial court found it had been so delivered and rendered judgment accordingly. Plaintiffs have appealed and contend there is no substantial competent evidence to support the finding and judgment of the trial court, and contend, also, that the court erred in the admission of evidence. Counsel for defendants has filed no brief on their behalf in this court, but wrote our clerk that he regarded the judgment appealed from as one based upon conflicting parol evidence of a character which this court uniformly does not disturb. Because of the nature of the question presented, for our decision, and the absence of a brief for appellees, we have sent for and considered the original files and the transcript of the testimony. C. D. Healy acquired title to 320 acres of land, which included that in question, in 1873, and apparently he and his first wife lived upon it until her death sometime in the early 1880’s. To that union six children were born. One of them died, leaving no surviving spouse or children. Another one of them, Alma, became the wife of C. E. (Gene) Foster and died February 24, 1919, intestate, leaving as her heirs her husband and six children. C. D. Healy married a second time about 1886. To this union three children were born. They lived upon this land until about 1900, when they were divorced. The wife was given the custody of the three children, then minors, and two 80-acre tracts of the land. C. D. Healy retained title to the other two 80-acre tracts now involved in this action. About 1908 C. D. Healy moved to Louisiana, where he thereafter made his home. He was married there to his third wife early in 1910. No children were born to that union, and her death preceded his. After he moved to Louisiana, for a number of years he had his son-in-law, Gene Foster, attend to some of his business in Kansas when he was away. After the death of Gene Foster’s wife, in 1919, he moved to Newton, where he lived with his second wife. Thereafter C. D. Healy had his grandson, C. L. (Lee) Foster, transact some of his Kansas business. Through all these years while he was living in Louisiana he rented these lands, collected the rent, and paid the taxes. Each summer he spent from a few weeks to several months in Kansas, and at those times transacted his own business. The petition in this action, filed May 31, 1930, contained the essential allegations for the partition of the land and alleged the shares of each of the plaintiffs and of the four defendants, who were children of C. D. Healy, namely, Addie Ruth Reeder, Sydney Grace Bowen, Lucretia M. Higbee and Clifton R. Healy, to be an undivided one-eighth, and the shares of each of the other defendants, being the six children of Alma E. Foster, deceased, a daughter of C. D. Healy, to be an undivided one-forty-eighth. The real property described included these two 80-acre tracts of land and other real property. The answer admitted the allegations of the petition as to relationship, and that the property other than these two 80-acre tracts was subject to partition in the shares alleged, but denied that the plaintiffs had any interest in the two 80-acre tracts, and alleged that on or about March 21, 1910, C. D. Healy and his then wife executed a general warranty deed for the two 80-acre tracts to the five then living children by his first wife, naming them, and an undivided one-fifth to each, and “that said deed was thereafter and in the lifetime of the said Clifton Dwight Healy delivered to the defendant Addie R. Reeder and Eugene Foster for the defendants herein.” An amendment to the answer alleged in some detail that the delivery of the deed by C. D. Healy was in the year 1910 or 1911 and was consummated at that time by handing it to Gene Foster and telling him that he “was to keep and hold said deed, and after the death of Clifton D. Healy hand it to the persons named therein as grantees”; that Foster took the deed; that later he moved to Newton and for a time did not have a safety-deposit box, and learning that C. D. Healy did have such a box, Foster placed the deed in the safety-deposit box of C. D. Healy, and that some months prior to his death C. D. Healy gave the keys to his safety-deposit box to Addie Ruth Reeder and to Lee Foster and caused the bank to be notified that they each had a key to the box and were authorized by C. D. Healy to enter and have access to the box; that the grantees named in the deed knew of its existence and of the delivery of the deed, and that Addie Ruth Reeder knew that the deed was in the safety-deposit box. “That at no time from the delivery of said deed to Eugene Foster in 1910 or 1911 until the death of said Clifton D. Healy did the said Clifton D. Healy have the said deed in his hands or possession, or demand the same, and that it was kept by said Eugene Foster from the time it was delivered to said Eugene Foster by Clifton D. Healy in 1910 or 1911 until after the death of Clifton D. Healy.” The reply denied all of the allegations of the answer and of the amendment thereto respecting the delivery of the deed. Defendants offered testimony relating to the delivery of the deed in 1910 and what was done with it, which may be summarized or quoted as follows: William Bowen, husband of one of the defendants, testified that one day in the spring of 1910 C. D. Healy was at his home in Butler county; that Gene Foster was there, and that a Mr. Putnam, who was in the real-estate business, called to see Mr. Healy about 'his land, “and at that time Mr. Healy told him that he had deeded this land to his oldest children. He said he had deeded this to his oldest children on account of their mother having some money (perhaps meaning the mother of plaintiffs) and he didn’t want to sell the land, he wanted to keep it in his possession so he could have access to it while he lived, and he had made a deed and was going to turn it over to Gene Foster.” Gene Foster, in direct examination, testifying to the same transaction, said Mr. Healy had recently come from Louisiana, where he had been living for two or three years. “Q. Did you have any conversation with reference to a deed with him at that time? A. Yes, sir. “Q. What was that conversation? A. He told us he had the deed drawed up to his children of his first wife. “Q. . . . Did he show you any paper? A. I’m not sure that he did at that time.” Later Mr. Healy showed the deed to the witness in El Dorado at the El Dorado National Bank. “Q. What did he do with it? A. He gave it to me. “Q. What did he say about it when he gave it to you? A. He told me to take care of it. “Q. Have you related all of the conversation at that time between you and Mr. Healy? A. Well, practically so. . . . “Q. Did-you take the deed? A. Yes, sir. “Q. How long did you keep it? A. It was in my box, practically — in fact, all of the time until he changed the box to the Citizens Bank. “Q. What was done with the deed then? A. It was put in his box. “Q. By whom? A. Well, I’m not sure that — I think he took it himself. I gave it to him to put in there. . . . “Q. Did he ever give you any reason as to why he made the deed? A. Yes; he made it out to the children where he wanted it to go, that he had made provision for the other children in a previous settlement.” The witness had transacted various business items for Mr. Healy during his lifetime. “Q. Was there a period of time when you and he kept and had the same safety-deposit box in the El Dorado National Bank? A. Yes, sir. “Q. Did you have a key and he have one? A. Yes, sir. “Q. During that time either of you had access to the box as you went to it? A. We did. “Q. And was this deed, exhibit 1, kept in that box to which both of you had a key? A. It was. “Q. For this period of some thirteen or fourteen years? A. Yes, sir.” Cross-examination: “Q. At the time you claim Mr. Healy delivered this deed to you and he said keep it, did he have a safety-deposit box in any bank in El Dorado? A. We had the box together. “Q. And he had as much access to the box as you did? A. Well, you might say yes. “Q. You each had a key? A. Yes. “Q. A joint box? A. Yes. “Q. And he could go in and take anything out of that box he wanted? A. Sure. “Q. When he gave you this instrument he said keep it? A. Yes. “Q. And he took this deed from the box that you both had access to and put it in his own box? A. I gave him the deed at the time he took the box over to the bank — the Citizens Bank. “Q. And you returned the deed to Mr. Healy? A. I turned it over to him, yes. “Q. Did he ask you for it? A. He did not. “Q. You delivered it to him? A. I let him have it to put in the box.” Answering questions propounded by the court, the witness testified that Mr. Healy’s third wife was with him when he was in Butler county in 1910 and that they stayed through most of the summer; that the deed had been executed a short time before they came, and at that time Mr. Healy did not hav.e a box in the bank. "Q. Did you have a box before.that time? A. He and I had one together, yes. That’s all.” Prior to that time Mr. Healy had had no papers in the box. They were in the El.Dorado National Bank when Mr. Healy gave him the deed. “Q. What did you do with it then? A. I took it and put it in my box. “Q. Did he at that very time get an interest in this box you had? A. No. “Q. He was getting in your box, or how did you do it? A. No, not for some time did he have a box, until he came back here, I think, to live, or practically so, after his wife died.” (That was his third wife.) “Q. You mean during that summer he was here he didn’t get a box of his own or have a box with you? A. No, I don’t think so. “Q. You took the deed when he gave it to you and put it in what was then your exclusive box? A. Yes, sir.” It was sometime later that they had the joint box. “Q. When did he get that deed from you, then? A. As I remember, he got the deed, or I gave him the deed at the time he put his papers in the Citizens Bank. “Q. What did he say to you at that time? A. Well, I had quite a good many papers in the box there and I asked him if he wanted to take the deed and some other papers he had in an envelope. “Q. Did he still have some papers in your box? A. Yes. And he said it didn’t matter, .he could take it, and so he did. “Q. Do you remember anything else he took at that time, other than the deed? A. No — well, what papers was in the envelope that was together with the deed. I never examined them. “Q. You don’t know what those were? A. I never examined them. “Q. Did he have any money at .that time in your box.? A.. Not that I know of. If he did it was in the envelope and I never examined it. “Q. Then he moved over to the Citizens Bank with his valuables and got him a box there, and you remained at the El Dorado National? A. Yes, sir. I was at Newton at that time. “Q. Did you ever go and open up his box in the Citizens Bank? A. I never did. I never did have a key to the Citizens Bank, because I was at Newton at that time and I didn’t have anything to do with it. “Q. After his death were you here when they went to the box to look? A. I was. “Q. Who had the key to his box? A. Mrs. Reeder. “Q. And this box was opened up at the Citizens Bank two or three days after his death? A. Yes, sir; after the funeral. “Q. This deed was found in his box? A. Yes, sir. “Q. And some currency? A. Yes. “Q. Anything else? A. Well, there were some papers. Of course I don’t know the contents of them. “Q. After you surrendered the paper to him at the time he moved over to the Citizens Bank, did he ever after that say anything about the deed? A. Well, I don’t know that he did in particular. . . . “Q. At the time he first handed you the deed was his wife present? A. No. “Q. Do you remember now just what was said about it at that time? A. He told me to take it and put it in the box and take care of it. “Q. Did he ever talk to you at any time about recording the deed? A. Well, I think that there was something said about that, but I don’t know as I can tell you in so many words, but he wanted charge of the place for his benefit as long as he lived and expected the children to have it as soon as— at his death. “Q. When did you have a talk of that kind? A. Well, that’s been from the time he delivered the deed, or from the time he was at Mr. Bowen’s with it. “Q. When he moved over to the Citizens Bank what was first said then? Who first asked about this deed? A. I. asked him if he wanted to take the deed over there. If I remember I had not a very large box and it was pretty well crowded, and I asked him about it, if he wanted to take it.’ “Q. What did he say? A. He said he didn’t know that it made any particular difference — that he would take it.” Mr. Godding, an employee of the El Dorado National Bank since 1917, testified that prior to 1927 the bank had some old safety-deposit boxes which it permitted its customers to use without charge, and very little record was kept except of the names; that on the old bank records C. D. Healy’s name appeared after one of the box numbers, but there was nothing to indicate that the box was ever used by him, and when the old boxes were taken out in 1927 this box had to be pried open and was found to be empty. In 1927 a new set of boxes was installed, and since then modern records have been kept. Mr. Healy never had one of the new boxes. One of the old boxes was in the name of C. E. (Gene) Foster. When the new boxes were installed in 1927 Mr. Foster rented one of them, and continued to have and use it up to the time of the trial of this action in June, 1938. Mr. Corman, an officer of the Citizens State Bank of El Dorado, testified that C. W. Healy leased a safety-deposit box in that bank August 7, 1925, and continued to lease it as long as he lived. The card for that box showed C. L. (Lee) Foster and Addie Ruth Reeder had signed as persons authorized to open the box. These entries were not dated, but the different ink used would indicate they were not made when the box was first leased. Lee Foster testified that one day in the late summer or fall of 1927 or 1928 his grandfather, C. D. Healy, went with him to the Citizens State Bank and had him sign the card for the box, and later he was given a key to the box, which he carried for a while and lost. There is no evidence in the record that Lee Foster ever went to this box and opened it alone. He was present with others when the box was opened after the death of C. D. Healy. In his opening statement counsel for defendants gave this reason for C. D. Healy to have Lee Foster have access to his box: Mr. Healy frequently was away at tax-paying time. He kept currency in this box and paid his taxes in cash, and he would write Lee Foster to go to his box, get enough currency, and pay his taxes, and perhaps would have Lee go to the box for other specific things. The record is silent as to when and under what circumstances the name of Addie Ruth Reeder was written on the card. She lived in Kansas City, Kan., and testified she was not acquainted with the banks in El Dorado. There is nothing in the record to show she was ever in the bank until after her father’s death, or that she ever had a key to the box until two days before his death, when her father' gave it to her and told her what it was. Other details of the evidence need not be set out, further than to say that Mr. Healy, after the death of his third wife, in the last few years of his life spent much of his time visiting with his children. He corresponded and visited with plaintiffs as well as with defend ants. It appears that he never told any of the plaintiffs about this deed, but perhaps had told some of the defendants that he had made it. He died at the home of his daughter, Mrs. Reeder, in Kansas City after but two days of serious illness. He was buried in Butler county. All of the children were notified and attended the funeral. Soon thereafter Mrs. Reeder and some of the other defendants went to the Citizens State Bank in El Dorado and Mrs. Reeder opened his safety-deposit box with the key he had handed to her. They expected to find his will in the box, but no will was found. They did find in the box the deed in question here, some other papers not here important, and about $4,000 in currency. Defendants had the deed recorded, and on Mrs. Reeder’s petition, Mrs. Bowen was appointed administratrix of the estate of her father and gave notice of her appointment. Later plaintiffs first learned of the things which took place after the funeral. The court took the case under advisement, briefs were furnished, and on July 26, 1938, the court made its findings as follows: “At the times of the arguments in this case, I pointed out the difficulties presented by the evidence, and explained that in my opinion there was much evidence consistent with a delivery of the deed prior to death and much evidence that would indicate the contrary. I believe that it will be agreed by all parties that there is no one bit of evidence that can be said to be conclusive on the matter of delivery, or of nondelivery. “The evidence presents a situation in which the court, and no other person, could, in my judgment, feel that its decision was free from considerable uncertainty. Of course, the main question is, Did Clifton D. Healy intend to deliver this deed? In any case there must be some evidence going beyond a mere intention to deliver. Again, if this was an ordinary sale of this land for value, we would probably draw certain conclusions from the evidence that might not be justified in the case of a gift from a parent to some of his children. I need not review the evidence further than to say that the divorce decree indicated that Clifton D. Healy made a substantial equal division of his property with his second wife at the time of the divorce. His divorced wife was given the custody of the three children born to her. I presume that Mr. Healy took the custody of the six children born to him of his first wife. This left it possible for the three children to inherit from their mother property that I assume was of about one-half of his worth. It also left it possible for the nine children to inherit from their father. I feel that Mr. Healy did not feel that the three children should be so favored above the other six. The deed that he drew in 1910 bears out this idea, though I believe that one of the six had then died, leaving no wife or children. In 1910 he drew this deed when he Was in the South and when, I take it, that no child knew that he was planning on making a deed. He brought it to Kansas and soon thereafter handed the deed to Mr. Foster. There may be some question whether Mr. Foster had the exclusive possession or whether the possession was joint with the grantor, but it seems it remained in the possession of Foster for about 18 years, when he delivered it to the grantor and it remained in his box until his death in July, 1929. In other words, the grantor caused this deed to be prepared without notice to any of the children he named as grantees, his five living children by his first marriage; he gave the deed to Mr. Foster and for 19 years the grantor saw to it that the deed was preserved and it was found in his box after his death. If he had not intended that the deed should be effective, he had the opportunity to destroy it, but' having kept it for 19 years, I am convinced that he kept it for a purpose. Of course, if he had merely executed the deed and placed it in his bank box, that alone would not constitute delivery. But I believe that when the grantor handed the deed to Mr. Foster and in substance told him to keep it until after his death, that constituted delivery as of that date, which I believe was in the spring of 1910. That will be the judgment.” It seems obvious that the controlling thing in the court’s findings was the view that the result would make a more equitable division among all the children of C. D. Healy of the half section of land originally owned by him. This was not an issue in the case and should not have had any influence in the findings of the court. When C. D. Healy and his second wife were divorced the title to the real property set off to the wife was vested in her, not in her children. What she did with that land, how much of it was consumed in the maintenance and education of the minor children placed in her custody, how much of it was necessary for her own maintenance, whether she still owns it, whether she is still living, and if so, the state of her health, and how much of it may yet be needed by her, cannot be determined by a study of this record. No issue of that kind was framed by the pleadings, and there was no evidence on that issue, unless it is a few fragmentary statements of some of the witnesses which might have had some bearing on the issue, if it were being tried, but which, standing alone, or collectively, are wholly insufficient on which to base a judgment. The sole controverted issue framed by the pleadings was whether the deed in question had been effectively delivered within the lifetime of the grantor, C. D. Healy. Defendants in their answer pleaded such a delivery and relied upon that point to defeat the claim of plaintiffs to a share of the property in controversy which otherwise the facts pleaded would have entitled them to receive. Now, on this point the rules of law in this state, and generally elsewhere, are quite well settled. Perhaps as clear a statement of them as is found in any of the opinions is the language of Mr. Justice Mason in Young v. McWilliams, 75 Kan. 243, 245, 89 Pac. 12: “Where one who has executed a deed retains it in his own possession, with the intention that it shall become operative upon his death, no conveyance is effected. He dies in the full ownership of the property and the title passes to his heirs or devisees. (Citations.) But where he deposits it with a third person, to be turned over upon his death to the grantee, this is a good delivery if he thereby surrenders all control over it, but not otherwise. (Citations.) In such a case the title is deemed to vest at once in the grantee, only the enjoyment of the property being postponed, a condition which the grantor is competent to create and which arises whenever a purpose on his part to establish it is sufficiently manifested, whether by express instructions to the depositary or otherwise. The important inquiry here, therefore, is whether J. R. Young gave the deed to Bowlus, the custodian, intending thereby to part with the title of the property. If he retained control of the deed the situation was substantially the same as though he had held it in his own possession.” Consistently this doctrine has run through our decisions, as this list of cases, not intended to be complete, shows: Burton and Shoemaker v. Boyd, 7 Kan. 17; Stone v. French, 37 Kan. 145, 14 Pac. 530; Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Nolan v. Otney, 75 Kan. 311, 89 Pac. 690; Harmon v. Bowers, 78 Kan. 135, 96 Pac. 51; Norton v. Collins, 81 Kan. 33, 105 Pac. 26; Worth v. Butler, 83 Kan. 513, 112 Pac. 111; Zeitlow v. Zeitlow, 84 Kan. 713, 115 Pac. 573; Ross v. Perkins, 93 Kan. 579, 144 Pac. 1004; Rust v. Rutherford, 95 Kan. 152, 147 Pac. 805; Gideon v. Gideon, 99 Kan. 332, 161 Pac. 595; Shell v. Mulligan, 103 Kan. 185, 173 Pac. 286; Mahoney v. Mahoney, 112 Kan. 377, 210 Pac. 1098; Hoard v. Jones, 119 Kan. 138, 156, 159, 237 Pac. 888; Johnson v. Cooper, 123 Kan. 487, 255 Pac. 1112; Burch v. Burget, 130 Kan. 243, 285 Pac. 574; Sample v. Reed, 130 Kan. 524, 287 Pac. 614; Smith v. Roscoe, 130 Kan. 595, 287 Pac. 596; Tracy v. Thatcher, 135 Kan. 615, 618, 11 P. 2d 691; John Hancock Mut. Life Ins. Co. v. Chinn, 138 Kan. 804, 28 P. 2d 761; Poteet v. Knappenberger, 139 Kan. 534, 31 P. 2d 1003; Mundell v. Franse, 143 Kan. 139, 46 P. 2d 16; Roberts v. McCoach, 145 Kan. 407, 65 P. 2d 289; Fulton v. Menefee, 146 Kan. 150, 68 P. 2d 1112. For other authorities in harmony with our decisions, see 18 C. J. 203; 16 Am. Jur. 516-521, and the cases cited in the annotation in 52 A. L. R. 1227 and the subsequent Blue Book citations. Under these authorities when the owner of real property executes a deed for it and places it in the hands of some third person to be delivered to the grantee after the death of the grantor, in order to make such delivery effective the grantor must have parted with the possession of and all the dominion and control over the deed. When Mr. Healy gave this deed to Gene Foster he told Foster “to keep it.” Nothing was said about how long Foster should keep it, or what eventually he should do with it. In both his direct and cross-examination Foster testified that all of the time the deed was at the El Dorado National Bank it was kept in a safety-deposit box jointly used by him and Healy. In answer to some of the questions propounded to him by the court he seems to have stated that the deed was in his “exclusive” safety-deposit box for some indefinite time after it first was handed to him, but later and for some number of years, which he could not fix, it was kept in a box jointly used by him and the grantor, and it is clear that for about five years prior to the death of the grantor he had the deed in his own safety-deposit box in the Citizens State Bank, a box to which Gene Foster never had a key nor any access. Hence, it cannot be said that the grantor parted with dominion and control over this deed. The trial court’s finding recognized that fact. The result is the evidence does not sustain a finding that the deed was effectively delivered to Gene Foster at any time. In the answer it was pleaded that the grantor had delivered the deed to his daughter, Addie Ruth Reeder, several months before his death. Evidence to support that allegation was wholly lacking. In the trial there was a suggestion by counsel for defendants that the court might find the deed to have been effectively delivered by the grantor to Mrs. Reeder, two days before his death, at the time he handed her the key to his box in the Citizens Bank and told her what it was. The trial court was unable to find an effective delivery of the deed from the evidence pertaining to that transaction, and in that we agree with the trial court. Touching the suggestion of counsel for defendants in his letter to the clerk of this court to the effect that he regarded the decision of the trial court to be one based upon controverted facts, the rule respecting that is stated in Hoard v. Jones, 119 Kan. 138, 158, 237 Pac. 888, as follows: “Ordinarily the question of the delivery of a deed is one of fact to be determined by the jury or trial court from all the evidence pertaining to that matter (citations); but where the facts are not controverted it is a question of law to be determined by the court. (Citation.)” More than that, any time an appellant presents to this- court the question whether there is substantial competent evidence to sustain the finding of the trial court in any case, it- is the duty and function of this court to examine the record to see if there is any such evidence to sustain the finding, and in doing so it is passing on a question of law. The rule is well stated in Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79, where it was held: “While this court does not weigh evidence or determine the credibility of witnesses, the question of whether there is substantial evidence to support findings of fact is reviewable, as it presents a question of law as distinguished from a question of fact.” (Syl. 112.) Since defendants at the trial were contending the deed had been effectively delivered to Gene Foster in 1910, and it was shown that Foster’s wife, one of the grantees in the deed, died intestate in 1919, plaintiffs objected to Foster testifying to transactions he had personally with C. D. Healy and pertaining to this deed, on the ground that he was a disqualified witness under our statute. (G. S. 1935, 60-2804.) This objection was overruled, and appellants complain of that ruling. In view of the fact that we. have determined that the evidence fails to show an effective delivery, even when Foster’s testimony is considered, we find it unnecessary to pass upon the correctness of the trial court’s ruling as to the admission of his testimony. We prefer to do that when the question has been more thoroughly briefed. The judgment of the trial court is reversed, with directions to set aside the judgment heretofore rendered, insofar as it affects the two 80-acre tracts of land in question, and to enter a judgment that each of the plaintiffs is the owner of an undivided one-eighth interest in the two 80-acre tracts and to render judgment of partition accordingly.

The opinion of the court was delivered by Wedell, J.: This was an action to recover damages for injuries sustained by plaintiff, a pedestrian, when struck by a truck of the defendant, the Phillips Petroleum Company, a corporatipn, driven by the defendant Frank Fisher, while plaintiff was crossing a street in Kansas City, Kan., between intersections. Judgment was for plaintiff, and defendants appeal. ■ This action was here on a previous appeal by defendants, from an order sustaining plaintiff’s motion for a new trial, and from the order overruling defendant’s demurrer to plaintiff’s evidence. (Claggett v. Phillips Petroleum Co., 146 Kan. 846, 73 P. 2d 1015.) In the instant case defendants assign as error: (1) The overruling of their demurrer to plaintiff’s evidence. (2) The overruling of their motion, for an instructed verdict. (3) Refusal of the trial court to set aside certain special findings of the jury. (4) The overruling of their motion for a new trial. The complaints concerning the ruling on the motion for a new trial relate to (a) instructions given; (b) the refusal to'give certain requested instructions; (c) excessiveness of verdict and (d) misconduct of the jury. The assignments of error will be considered in the order stated.' The facts pertaining to defendants’ demurrer to plaintiff’s evidence, were sufficiently set forth in the former opinion to make their reiteration here unnecessary. While the instant case was not tried on the former record, a review of the record in the instant case does not disclose sufficient variance in the evidence from that presented in the former record to justify or permit a change in our former ruling on defendants’ demurrer. The ruling on that point will, therefore, be the same as in the former opinion. The ruling, in the instant case, on defendants’ motion for an instructed verdict, was proper, as a consideration of the special verdict will reveal. The special verdict of the jury was as follows: “1. At what speed per hour was the truck of defendant, Phillips Petroleum Company, being operated by defendant Fisher as it crossed New Jersey avenue, going north on Third street? A. Thirty-five miles per hour. “2. At what speed per hour was the truck being operated by defendant Fisher when it was ten feet from plaintiff? A. Twenty-five miles per hour. “3. Was the plaintiff under the influence of intoxicating liquor at the time of the accident? A. No. “4. Had the plaintiff crossed the path of the truck to a point of safety immediately before the accident? A. No. “4A. If you answer question four ‘yes,’ state how plaintiff got back into, the path of said truck. A. - “5. Was the driver of the truck of defendant guilty of negligence in the operation of the truck at the time of the accident? A. Yes. “6. If you answer the preceding question ‘yes’ then state what the negligence consisted of. A. Carelessness of driver and poor lights — inattention to opera tion of truck at intersection, consisting of excessive rate of speed and poor vision through windshield. “7. Immediately before the accident occurred, and before plaintiff got in front of the truck, what, if anything, was there to prevent the plaintiff from seeing the truck driven by the defendant Fisher? A. Not anything. “8. Do you find that the plaintiff, through his own carelessness, contributed to the injuries complained of? A. No. “9. If you answer the preceding question in the affirmative, state what act- or acts on his part contributed to said injury? A. - “10. At the time of the accident was the plaintiff walking diagonally across said Third street in a northeasterly direction? A. Yes. “11. If you answer question No. 10 in the affirmative, then state from what point he started from the west side of Third street. A. About ten feet north of northwest corner of Third and New Jersey.” Defendants moved to set aside all answers except answers numbered 7, 9, 10 and 11, on the ground they were not supported by the evidence, were contrary thereto and were the result of passion and prejudice. The objection to answer number one is that there was no evidence which fixed the speed at exactly thirty-five miles per hour. There was evidence in support of plaintiff’s contention that the truck, at the intersection, was traveling between forty and fifty miles per hour, and evidence in support of defendants’ contention it was traveling about fifteen or eighteen miles per hour, and that it was traveling between fifteen and twenty miles per hour. Defendants’ evidence also disclosed the truck was equipped with a governor which prevented a speed of over thirty-five miles per hour. The jury decided the speed probably was not exactly that testified to by any of the witnesses, but was probably somewhere between the speeds testified to by the witnesses, and fixed the speed at thirty-five miles per hour. It was not required to believe the testimony of either of the parties or other witnesses as to the exact speed of the truck. A somewhat similar question arose in Balandran v. Compton, 134 Kan. 542, 7 P. 2d 510, under conflicting evidence, as to the exact distance of a car from the edge of the slab. The jury did not accept the exact testimony of any of the witnesses, and this court said: “The jury evidently did not accept the testimony of either party as to the location of the appellee, but took rather the middle ground, which is probabD not far from correct, that the appellee was on the edge of the pavement.” (p. 546.) Moreover, the precise number of miles per hour which the car was traveling was not necessarily the turning point in this lawsuit as the ■driver of the truck was required to operate the vehicle at such a rate of speed as was reasonable and proper under the circumstances and so as not to endanger the life or limb of persons in the street. It is likewise urged there is no specific evidence to support the precise speed very near the point of the accident as disclosed by finding number two. The testimony of the truck driver was to the effect that ¿re reduced his speed between the intersection and a point about ten feet from the plaintiff by eight or ten miles per hour. Such reduction in speed would have resulted in a speed of approximately twenty-five miles per hour at a point ten feet from the point of the accident. In view of that situation we cannot say the court erred in refusing to set aside finding number two. Touching findings numbers three and four, it is sufficient to say defendants frankly concede those findings were made in response to conflicting evidence. This court, of course, is concerned only with evidence and inferences which support or tend to support findings, and not with testimony adverse thereto. (Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550.) Answer number five is a finding the driver of the truck was guilty of negligence. Answer number six is not entirely free from difficulty. It purports to specify the negligence. When the jury first returned its verdict that answer was limited as follows: “Carelessness of driver and poor lights.” That answer embraced two subjects, namely, the driver and the lights. By it the jury found the lights were poor. The words “carelessness of driver” were indefinite, and on the request of plaintiff the court directed the jury to make answer number six more definite. The jury then added to the former finding the additional portion of that answer. What was defendants’ objection to that final answer? It was the same as was made to other answers. It was not that the answer pertained only to negligence at the intersection and that the answer should therefore be set aside as immaterial, but the objection was that the answer was not supported by evidence, was contrary thereto and was based on passion’ and prejudice. A careful review of the record discloses there was sufficient evidence if believed — and it was — to sustain all parts of the answer, with the possible exception of that part which pertained to the windshield. It may, however, have been in the mind of the jury, that the vision through the windshield was poor by reason of the poor lights. Considering the grounds of the motion to set the answer aside we cannot say the trial court erred. Defendants now also insist that all negligence, specified in both portions of that answer, must be construed as having occurred solely at the intersection which was located about fifty feet south of the point of the accident. While that was not the basis of the motion on which the ruling was made, we have concluded to consider also that contention. Defendants’ interpretation of that particular finding obviously would result in a failure to find the driver guilty of any negligence at the scene of the accident. Let us examine the answer in its entirety for the purpose of ascertaining whether the answer, when considered as a whole, is reasonably open to another interpretation. In other words did the jury, in view of the entire answer, intend to restrict the negligence solely to the exact point of the intersection, or is it more nearly in harmony with the general verdict to interpret that answer as intending to find that the negligence therein found caused the accident? If the jury intended to find there was no negligence at the scene of the accident, then of course, that particular finding would not be in harmony with the general verdict. Where findings of the jury are susceptible of two interpretations, the court will, if possible, adopt the one which will harmonize the findings with and sustain the general verdict. (Lesher v. Carbon Coal Co., 127 Kan. 34, 272 Pac. 155; Dyer v. Keith, 136 Kan. 216, 219, 14 P. 2d 644.) The reason for construing special findings so as to harmonize them with the general verdict, if possible, is that nothing will be presumed in aid of special findings and that every reasonable presumption will be indulged in favor of the general verdict. (Lesher v. Carbon Coal Co., supra; Parmenter v. Morrison, 130 Kan. 707, 710, 288 Pac. 582; Jordan v. Austin Securities Co., 142 Kan. 631, 649, 51 P. 2d 38.) If we assume the portion of answer number six subsequently added was intended to refer only to the intersection can we reasonably and fairly say the finding of “poor lights” contained in the original portion of that answer was intended by the jury to be restricted solely to the condition of the lights at the intersection. We do not think so. “Insufficient lights” was definitely pleaded as a ground of negligence. There was evidence, although denied by the truck driver, that the driver told a witness at the scene of the accident “his lights were very dim, he could not see very well.” There was also evidence to the effect that after the accident and while plaintiff was still lying in the street, at a point fifteen feet in front of the truck, the witness was required to get down very close to plaintiff in order to see him because the truck lights were not very good. That witness, a deputy sheriff, testified “yes, the lights were very dim.” Moreover, defendants cannot escape the result of the finding of negligence relative to “poor lights,” even though we concluded the finding of “poor lights” referred to their condition at the intersection. Such a condition of the lights at the intersection clearly violated the city ordinance, which was pleaded, and which required lights of sufficient candle power to reveal objects 150 feet ahead. Can we say the findings of excessive speed, inattention to operation of truck and poor vision through windshield, at the intersection, are meaningless findings when considered in conjunction with finding number one, which fixed that speed at thirty-five miles per hour at the intersection, and finding number two, which showed a reduction of only ten miles per hour at a point ten feet from the plaintiff? We do not think so. True, the accident did not occur in the intersection, but a review of the record indicates the jury probably desired to convey, by answer number six, the thought that the driver was traveling too fast at the intersection, and not paying sufficient attention to enable him to sufficiently reduce his speed before striking the plaintiff. Third street, on which the accident occurred, was fifty-three feet wide. The driver had testified to the fact he did not see the plaintiff until he was leaving the intersection and that the truck was then only fifty feet from the plaintiff. The deputy sheriff, a witness called by the plaintiff, testified concerning a conversation with the driver, which was as follows: “A. Well, I asked him if he saw the man. He said yes he saw him. ‘Why didn’t you stop?’ He said he could not stop. He said something about his lights being dirty and that he could not see. He did not have a very good view and when he told me, I went around and looked at his lights and his lights were very dim.” (Italics inserted.) That testimony alone, in view of the fact there was no traffic or other obstruction to the driver’s view, is sufficient to support the findings of inattention, excessive speed and poor vision for the entire distance, including the intersection. Finding number eight absolved plaintiff of all negligence. It was clearly made from sharply conflicting testimony, and the jury resolved that conflict in favor of the plaintiff. That was its privilege .and we cannot disturb it. This concludes the objection to specific findings. A word in conclusion of the discussion of the special verdict may be helpful. Finding number eight, when considered with findings numbers one, two, three and four, and only that part of finding number six pertaining to “poor lights,” is clearly sufficient on the question of defendants’ negligence to support the general verdict, even though the subsequent portion added by the jury to finding number six should be construed as pertaining only to negligence at the intersection. In the early part of the opinion we referred to defendants’ motion for an instructed verdict. In view of what has been said, that motion manifestly was properly overruled. Did the court- err in overruling defendants’ motion for a new trial? It is urged no instruction was given on the subject of proximate cause and also that, in view of the magnitude of this case, the instructions should not have been confined to abstract statements of the law, but should have been so worded as to more clearly show their application to the particular facts of the case. We shall dispose of the last contention first. While some of the instructions might have been more easily applied to the-particular facts, if that had been done, we cannot say the absence of such particularization constituted reversible error. There was nothing so unusual or complicated about the facts as to require particular mention or emphasis of certain facts in order to advise the jury of the rights and duties of the respective parties. Were the instructions fatally defective by reason of the absence of an instruction on proximate cause? The court quite fully instructed the jury on the subject of the precise negligence pleaded, the theory of the defense, the burdens of proof, as to negligence and contributory negligence and concerning the effect of each. In view of the instructions given we fail to see and are not definitely advised in just what manner the omission of an instruction on “proximate cause” prejudiced defendants’ rights under the circumstances of this particular case. (See Adams v. Casebolt, 145 Kan. 3, 7, 8, 63 P. 2d 927.) Defendants particularly complain concerning an instruction which they say was virtually an instruction on the doctrine of last clear chance and that neither the pleadings nor the evidence warranted such an instruction. They direct our attention to a statement of this court in its former opinion (p. 850), to the effect that the action was not founded on that doctrine. The statement in our former opinion does not appear to have been necessary to a review of the questions then presented and therefore probably should not have been made. We were considering the ruling on defendants’ demurrer to plaintiff’s evidence. Last clear chance, if properly pleaded, was only one of the grounds upon which plaintiff could have relied for recovery. If plaintiff’s evidence was sufficient to take the case to the jury upon any theory, defendants’ demurrer to plaintiff’s evidence was properly overruled. We held in the former case the demurrer was properly overruled. We did not intend by the statement to convey the idea the doctrine could not, under any evidentiary circumstances, become applicable. If the statement was confusing to defendants, have they been prejudiced thereby? The statement does not appear to have confused plaintiff or the trial court in the instant trial. Plaintiff, on retrial, stated he had pleaded last clear chance and the trial court, as now stated by defendants, attempted to instruct upon that subject. The real question now, so far as defendants are concerned, is therefore this: Assuming the pleadings and the evidence in the instant case did not warrant the 'instruction, have defendants been prejudiced thereby in view of the special finding of the jury that plaintiff was not guilty of any negligence? The doctrine of last clear chance, insofar as a plaintiff’s conduct is concerned, is predicated upon the theory the plaintiff was negligent, that his negligence placed him in a predicament from which he could not extricate himself, and that his negligence thereafter had completely ceased. (Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 308, 252 Pac. 472; Buchhein v. Atchison, T. & S. F. Rly. Co., 147 Kan. 192, 196, 75 P. 2d 280, and cases therein cited.) These were questions for the determination of the jury, if properly in the case under the pleadings and the evidence. We have previously, however, and on various occasions held that where the jury completely absolved a plaintiff of all negligence, that the doctrine of last clear chance thereafter becomes immaterial on review and concludes that phase of the lawsuit. (Turner v. George Rushton Baking Co., 135 Kan. 484, 489, 11 P. 2d 746; Bergman v. Kansas City Public Ser. Co., 144 Kan. 27, 58 P. 2d 110.) In the latter case it was said: “It is further contended the doctrine of last clear chance was not in this case. Defendant asserts last clear chance was not pleaded; plaintiff could have stopped within one or two feet and hence he at all times had the last clear chance to avoid the accident; plaintiff’s negligence was a continuous process and never ceased, and instruction No. 16 was an incorrect statement of the doctrine. Had the jury found plaintiff guilty of contributory negligence, some of these contentions would be entitled to serious consideration. The jury, however, found to the contrary. In May v. Kansas Power & Light Co., 134 Kan. 470, 7 P. 2d 108, it was said: “ ‘Counsel for defendant contend that the sole question in this case involves the doctrine of “last clear chance.” If so, there is no use for further discussion. That doctrine could only apply here if the plaintiff himself had been negligent, that his negligence had ceased, and that defendant thereafter had an opportunity, if diligently exercised, to save plaintiff from the peril his own negligence had gotten him into. (Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 252 Pac. 472; Dearing v. Wichita Rld. & Light Co., 130 Kan. 142, 285 Pac. 621.) Here, however, there was no negligence on the part of plaintiff, and the jury’s special findings conclude that phase óf this lawsuit.’ (p. 474.)” (p. 32.) Defendants have not indicated in what respect those principles do not govern the point now raised, and we know of no reason why they should not be applied in the instant case. It is earnestly urged certain requested instructions should have been given and that the substance thereof was not included within the instructions given. Upon a careful review of the instructions we have concluded that, as a whole, they were sufficient to prevent this court from declaring a mistrial upon the grounds urged. Complaint is made the verdict was the result of passion and prejudice. The district court, in ruling on post-trial motions, appears to have carefully considered this complaint, as well as others, and it specifically found against the contention. It approved the verdict and in so doing took occasion to remark about the fact that the jury was far above the average. There is nothing in the record which would justify this court in overthrowing the conclusion of the trial court, deliberately reached, that the verdict was not the result of passion and prejudice. Complaint is also made that the verdict in the sum of $15,666 is excessive. Plaintiff was a common laborer, a strong, able-bodied man and thirty-seven years of age at the time of the accident. He was earning from fifty-five to sixty cents an hour on an eight-hour day as an employee of the Tobin Construction Company. He tamped cement, laid concrete and dug ditches. He had also worked for packing companies. Following the accident he was in the hospital for a period of four and.one-half months and was unconscious from Saturday evening until the following Monday morning. Dr. C. C. Nesselrode, a physician and surgeon, and an instructor at the University of Kansas, was called as a witness by plaintiff, and testified in substance: He was called on December 7, 1935, and found plaintiff partially unconscious and irrational, with a cut on his forehead and chin and a comminuted fracture of the right leg above the knee. It was harder to set than -the ordinary fracture because it slipped out of place several times. He had a fractured skull which destroyed the vision of his left eye. The injury to the base of the skull might affect the hearing in his ear, the same as it affected the optic nerve, but he made no test for hearing. Plaintiff’s leg was shortened about one and one-half to one and three-quarters of an inch. The shortening of the leg caused him to limp and the limping caused him to twist his back when he walked and had a tendency to weaken his back. He suffered a .concussion of the brain which caused an injury to the brain. Plaintiff could do some light work, but would not be accepted for employment in any industry. He did not remember that plaintiff had complained of any inability to sleep while in the hospital, but that the nurses complained about the fact that they were unable to keep him in any position in bed. (Plaintiff had testified he had been treated for syphilis by the board of health in Detroit, Mich., in 1925.) A luetic lesion and syphilis are one and the same thing, and if plaintiff had a luetic lesion it might affect him as far as his nervousness and dizzy spells were concerned. His opinion concerning plaintiff’s ability to work would not be changed even if it was a fact that plaintiff had worked four or five months on the WPA after his injury. Dr. C. J. Mullins, a graduate of Creighton University, a member of the clinical staff in the eye department of the University of Kansas, testified in substance: He began treating plaintiff’s eye about December 10, 1935, and saw him at intervals over a period of two months and his eye did not improve, but lost a little more vision. The vision in his left eye was now completely destroyed, due to the injury of the optic nerve, which might have resulted from the fracture of the skull. There would be no regeneration or restoration of eyesight and that it would not affect his right eye. There was no question about the fact that the loss of the sight of the left eye was due to the accident and was not in the least referrable to the luetic lesion. Plaintiff had also testified, in addition to some of the facts related by the doctors, in substance as follows: When he walked he was required to bend over, which threw his spine out of line. He had done no hard manual labor since the accident. He could not lift anything as he could not stand up on his leg. He could not even put his pants on his right leg unless he held to something to steady himself. His back hurt when he walked. He weighed 168 pounds when injured and 134 pounds when he left the hospital. He was in bed at the hospital all of the time except for a few weeks. He was unable to sleep because of his nerves. The headaches and dizzy feelings existed nearly all of the time. Since the accident he had driven a taxicab for about two months, during which time he earned about $8 or $10 a week. He quit work because he could not stand it. He tried to get light work, but the industries would not hire him. His back hurt when he walked. He lost the hearing in his left ear. It was agreed plaintiff’s hospital bill amounted to $470.50. Doctor Nesselrode was of the opinion a fair and reasonable charge for the doctors’ services would be from $150 to $200. There was testimony offered by defendants’ witnesses that plaintiff had worked for the WPA under the assumed name of his brother. The trial court carefully reviewed the evidence as to injuries and concluded that in view of the testimony of the doctors as to the numerous injuries suffered and the seriousness thereof it could not say the verdict was excessive. In view of all the circumstances, the amount of the verdict does not shock the conscience of this court and we shall not disturb it. It is finally urged the verdict was a quotient verdict and for that reason cannot stand. Jurors were called to testify as to the manner in which they arrived at their verdict. The substance of the testimony was that they all believed plaintiff should recover, but that they were not originally in agreement as to the exact amount. They did believe he should be compensated in the amount of about $50 per month and that he probably would have been able to work until he was approximately sixty or sixty-five years of age. The amount the various jurors thought he should receive was set down and they divided that amount by twelve. After doing so they discussed that amount for some period of time and concluded to call for a yes-or-no vote on that amount in the sum of $15,666. The vote resulted in a unanimous decision to return a verdict in that amount. The jurors had not, however, prior to setting down the respective amounts and prior to the division of the total amount, agreed that the quotient should constitute their verdict. It does appear that method was employed as a means of arriving at an amount which formed the basis for further consideration. This court has frequently stated that a verdict reached, under very similar circumstances, did not constitute a quotient verdict. (Newell v. City Ice Co., 140 Kan. 110, 34 P. 2d 558, and numerous cases therein cited.) The trial court in the instant case, after hearing the testimony of the jurors as to the manner in which they finally reached the verdict, concluded this was not a quotient verdict. In considering the question the trial court said: “In reference to the quotient verdict, I would say that the testimony of the jurors who testified this morning is convincing. At least they tried to arrive at a verdict, as in all cases of course there is a compromise on one side or the other. The jurors seemed to have an understanding that they could not return a quotient verdict. I think that the testimony of those jurors absolutely proves it was not a quotient verdict.” In the case of Fitch v. State Highway Comm., 137 Kan. 584, 21 P. 2d 318, this court said: “Whether the verdict was or was not a quotient verdict was a question of fact for the trial court to determine, and the verdict having been approved by the trial court, this court will not disturb the judgment on that account.” (p. 587.) In the instant case the testimony was clearly sufficient.to support the finding of the trial court that the verdict was not a quotient verdict, and the finding will stand. We have reviewed the authorities cited by the respective parties, on the various contentions, and are persuaded they are not out of harmony with the views herein expressed. The judgment is affirmed.

The opinion of the court was delivered by Dawson, C. J.: This was an action for damages for malicious prosecution. On July 2, 1936, the defendant, Dr. T. F. Brennan, county health officer of Ness county, instituted lunacy proceedings against the plaintiff, Joe Eckl, by filing therein his affidavit alleging that Eckl was of unsound mind and unsafe to be at large, and that the welfare of himself and others required his restraint and confinement in some hospital. The court issued process, which was served on plaintiff. It gave notice that an examination on the charge of lunacy would be heard on July 8. Neither on that date nor later did such examination occur; and on October 2 the lunacy proceedings were dismissed. In his petition plaintiff alleged that defendant had made the lunacy affidavit willfully, falsely, maliciously, and without probable cause; that to defend himself plaintiff employed an attorney at an expense of $50; that the filing and publication of the false and malicious affidavit had subjected plaintiff to embarrassment and injured his social standing, and had impaired his health and caused him mental worry, anguish and pain — to his loss and damage in the sum of $10,050, for which he prayed judgment. Defendant answered with a general denial and alleged that at the time of filing the affidavit in lunacy he was county health officer of Ness county, and that prior to filing it against plaintiff he made a full, correct and honest disclosure to the county attorney of all facts bearing on the mental condition of plaintiff, and that it was on the advice of the county attorney that he filed the affidavit; and that in so doing defendant acted in good faith and on the advice of the county attorney of Ness county. By agreement of counsel for the litigants in open court the issues were narrowed to the single one of malicious prosecution. The cause was called for trial before a jury on October 5, 1938. Plaintiff gave evidence in his own behalf, but adduced nothing important which bore on the question at issue; likewise a chiropractor and four lay witnesses, over defendant’s objection, were permitted to testiíj, that in their opinion, based on some acquaintance with plaintiff, he was of sound mind on July 2,1936,-and not dángerous to himself or others. Plaintiff also sought to introduce in evidence the record and judgment (or portions thereof) in the-case of Eckl v. Sinclair Refining Co., 133 Kan. 285, 299 Pac. 588, but the trial court rejected it. Defendant’s demurrer to plaintiff’s evidence was overruled; and defendant then gave testimony in his own behalf, likewise the county attorney, the superintendent of the University Hospital (Bell Memorial), in which plaintiff had been treated for eye trouble which eventually caused him to become blind, the librarian of the hospital, also the records of the hospital pertaining to plaintiff as an inmate of that institution, also the sheriff of Ness county, the ex-wife of the plaintiff, and one lay witness who resided near plaintiff’s residence in Ness City. We will not take space to summarize the evidence in defendant’s behalf, for the reason that after its conclusion and on the further introduction of some rebuttal evidence in plaintiff’s behalf, the trial court directed the jury to return a verdict for defendant. This was done, and judgment was entered accordingly. Plaintiff’s motion for a new trial was overruled and he appeals, complaining of the admission in evidence of records showing his history as a patient in the University Hospital, and in refusing to admit in evidence the record in Eckl v. Sinclair Refining Co., supra, and in directing the jury to return a verdict for defendant. In determining the propriety of directing a verdict in favor of defendant, we can have no concern with the evidence offered by defendant. That evidence must be put out of consideration entirely— unless, indeed, it might contain some probative facts which would aid in establishing the case for the plaintiff. That, however, is not suggested nor tenable in the present case. Plaintiff argues that since five witnesses testified that in their opinion he was sane and not dangerous on the date defendant’s affidavit in lunacy was filed against him that his sanity was thereby established, and therefore defendant’s malice was clearly to be inferred. Without debating whether the opinions of a chiropractor and four lay witnesses would or could establish plaintiff’s sanity, such testimony constituted no evidence whatever on the vital question of present concern — whether defendant “willfully, falsely and maliciously” made the affidavit which was the gravamen of plaintiff’s petition. In A. T. & S. F. Rld. Co. v. Watson, 37 Kan. 773, it was said: “The . . . burden of proving the want of probable cause ... was upon the plaintiff who alleged it.” (p. 782.) The fact that the lunacy charge against plaintiff was never brought to trial was no evidence of malice on the part of defendant. In the early case of Malone v. Murphy, 2 Kan. 250, the action was for malicious prosecution. The trial court instructed the jury that if there was an absence of probable cause, “the prosecution was malicious, the law implying malice from want of probable cause.” But this court held that instruction to be erroneous. In Walker v. Smay, 108 Kan. 496, 196 Pac. 231, it was held: “To recover damages for the malicious prosecution of a civil suit plaintiff must allege and prove not only that the defendant was actuated by malice in commencing the prosecution but also that it was instituted without probable cause.” (Syl. H 1.) In the same case the trial court disposed of the litigation by sustaining a demurrer to plaintiff’s evidence. On that point this court said: “The existence of malice is ordinarily a question of fact for the jury, but where there is no dispute in the testimony, the presence or absence of probable cause is a question of law for the court, and it is held that the testimony of plaintiff in the instant case failed to show that the prosecution was instituted with malice or without probable cause.” (Syl. 112.) In the instant case the evidence wholly failed to prove want of probable cause, so that even the rule that malice may be inferred where want of probable cause is shown (Bratton v. Exchange State Bank, 129 Kan. 82, 281 Pac. 857, syl. ¶ 3), was inapplicable. In 18 R. C. L. 51, it is said: “. . . Nothing will meet the exigencies of the case so far as respects the allegation that probable cause was wanting except proof of the fact. Though such allegation is a negative one in its form and character, it is nevertheless a material element of the action for malicious prosecution, and the burden is upon the plaintiff to prove affirmatively, by circumstances or otherwise, as he may be able, that the defendant had no reasonable or probable ground for instituting the original proceeding, . . .” See, also, notes in 24 A. L. R. 280; 94 A. L. R. 749; 114 A. L. R. 885 et seq. Plaintiff complains of the rejection of evidence pertaining to his action for compensation as an injured workman of the Sinclair Refining Company, reviewed by this court eight years ago. (133 Kan. 285.) This defendant had nothing to do with that case, and was .not bound by that decision in the slightest degree. The doctrine of res judicata (apparently relied on by plaintiff) requires the existence of several essential factors, identity of parties, identity of the capacity in which they sue or defend, and identity of subject matter; and that the prior action did not fail to reach a conclusive result by dismissal, mistrial or other mischance. (A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127, syl. ¶ 1; Probst v. Weigand, 133 Kan. 232, 299 Pac. 611; Atchison & Eastern Bridge Co. v. Atchison County Comm’rs, 150 Kan. 24, 91 P. 2d 34.) All of those essential factors to permit the introduction of any part of the record in plaintiff’s case against the refining company, as evidence in the case at bar, were wanting completely. Appellant seeks to make a point out of the fact that at the conclusion of plaintiff’s evidence, defendant’s demurrer thereto was overruled. The argument is made that such a ruling was an adjudi cation that plaintiff had made out a prima facie case sufficient to go to the jury. But in the course of a trial the court is privileged to change its ruling, and indeed it ought always to do so if or when, upon more reflection or in the further progress of the lawsuit, it discovers that its earlier ruling was incorrect. (Cox v. Kellogg’s Sales Co., post, p. 561, this day decided.) Not only during the course of a trial, but at any time within the same term the court may change its rulings in either a civil or a criminal case. (Burnham v. Burnham, 120 Kan. 90, 93, 242 Pac. 124; State v. Langmade, 101 Kan. 814, 168 Pac. 847.) Ordinarily there is no material difference between a ruling on a demurrer to the sufficiency of the evidence and a directed verdict. There was none in this case. The judgment is affirmed.

The opinion of the court was delivered by Smith, J.: This was an action to recover money. Judgment was for plaintiff. Defendant appeals. The plaintiff is a drainage district in Montgomery county. The action is brought to recover money which the drainage district was compelled to expend to repair a floodgate in the dike which was installed, pursuant to the terms of a contract between Montgomery county and the drainage district. The action was originally brought in Montgomery county, against the state highway commission, the city of Coffeyville and Montgomery county. Service was obtained on the state highway commission at Topeka. The commission filed a motion to quash the summons. This motion was overruled and the commission appealed. The judgment of the trial court was reversed in Verdigris River Drainage District v. City of Coffeyville, 149 Kan. 191, 86 P. 2d 592. This court held that the action against the highway commission should have been brought in Shawnee county. When the action was tried on its merits the' result was a judgment against both the city and the county. They both appeal. The trial in the court below was on an agreed statement of facts. This stipulation, after stating the corporate nature of the parties, was as follows: "rv “That in the year 1921, and prior thereto, what is now Sunflower street in the city of Coffeyville was a county road, and was being maintained by and was under the jurisdiction of the defendant, the board of county commissioners of Montgomery county, Kansas; that prior thereto the defendant, the city of Coffeyville, had so arranged its streets and alleys and ever since has and does now so maintain them, that in the times of heavy rains the water falling within said city would flow east and cover and flood said county road, causing it to be difficult for defendant, the board of county commissioners of Montgomery county, Kansas, to maintain said road, and keep the same open for travel. “That the defendant, the board of county commissioners of Montgomery county, Kansas, was desirous of obtaining permission of the plaintiff to cut the plaintiff’s north levee and to install therein a drain and floodgate, which would thereby take care of said flood waters covering said road, and thereupon, on the 20th day of December, 1921, the defendant, the board of county commissioners of Montgomery county, and this plaintiff entered into a written contract, duly executed and delivered by the duly authorized officers of each of the parties thereto, whereby the plaintiff agreed to permit said defendant, the board of county commissioners of Montgomery county, to cut its levee as aforesaid and construct a drain therein, equipped with a floodgate, on condition that defendant, the board of county commissioners of Montgomery county, would, at its own expense, maintain said drain and floodgate and keep it in repair during the existence of said levee, which the defendant, the board of county commissioners of Montgomery county, agreed to do. “That said contract provided, among other things: “ ‘It is further agreed that in case first party (the board of county commissioners of Montgomery county) fails or neglects to properly maintain said drain and floodgate, then, that the second party may take such steps as to it shall appear to be necessary to properly maintain and repair the same, at the expense of the first party, and the first party agrees to pay to the second party all of the necessary expenses incurred by the second party in so maintaining and repairing said drain and floodgate.’ “A true and correct copy of said contract is hereto attached, made a part hereof and marked ‘Exhibit A.’ “v “That defendant, the board of county commissioners of Montgomery county, in pursuance with said contract, constructed said drain in plaintiff’s levee, equipped with floodgate, shortly after the execution of said contract. "vi “That thereafter and about the year 1928. the city extended its city limits so as to include a part of said county road which was served and drained by said drain and floodgate through plaintiff’s levee; that the part of said county road which was taken into the city is known as Sunflower street and what was formerly said county road is now known as highway 169. “That ever since 1928, that part of what was formerly said county "road which is within the city, and part of the territory of the city which is not within the boundaries of the plaintiff district, have been and now are being drained by means of said drain and floodgate into the Verdigris river. “vii “That thereafter, on April 1, 1929, and pursuant to section 60E681-418, G. S. Kansas, 1925, the defendant, state highway commission, succeeded to the rights, duties and liabilities of the defendant, the board of county commissioners, with reference to said highway 169, and its obligations under said contract. “vm “That on or about April 1, 1934, the defendant, the city of Coffeyville, waived its right to collect S250 per mile from the state highway commission of the state of Kansas, and that since April 1, 1934, all of said road which is served and benefited by said drain and floodgate has been and now is under the jurisdiction and supervision and has been maintained by the defendant, the state highway commission, a copy of the resolution of the state highway commission being attached hereto, made a part hereof, and marked ‘Exhibit B.’ “ix “That section 24-452, G. S. Kansas, 1935, provides as follows: “‘Sewers Through Levees; Floodgates and Pumping Apparatus; Duty of Cities; Costs. That whenever any drainage district shall include any territory that comprises a part of any incorporated city which has constructed or desires to construct any sewer or drain through any embankment or levee constructed by such drainage district along the bank of any watercourse, so as to have an outlet for such sewers into said watercourse, it shall be the duty of such cities to maintain efficient floodgates and pumping apparatus, and keep the outlet of such sewers closed during periods of high water, so that the water cannot run back through such sewers and cause injury to lands protected by such levee; and if any city shall neglect to perform such duty the board of directors of such drainage district may provide the necessary floodgates and pumping apparatus and collect the cost thereof from such city; and the city shall be liable for all damages, if any, caused by such neglect of duty.’ “Plaintiff’s territory comprises part of the territory of the defendant, the city of Coffeyville, and that the said drainage from the defendant city now empties through plaintiff’s levee into the watercourse of the Verdigris river by means of said drain through its levee aforesaid, and that said drain through its levee and the floodgate therein serve said highway 169. “x “That thereafter said drain became out of repair and in such condition that it was unsafe in times of flood upon the Verdigris river, and it was necessary for the protection of the plaintiff district that said drain and floodgate be repaired and plaintiff, in August, 1937, made demand upon each of said defendants that they repair said drain and floodgate, but that each of said defendants failed, neglected and refused to do anything about repairing said drain and floodgate. “xii “In February, 1938, plaintiff caused a written, itemized, verified claim for said expenses of repairing said drain to be filed with and presented to each of the defendants, and they and each of them have failed and refused to allow or pay said claim, and that the county auditor of Montgomery county has disallowed plaintiff’s claim against said county.” We shall first consider the appeal of Montgomery county. When the highway commission appealed from the order of the district court refusing to sustain its motion to quash the service of summons upon it, the drainage district argued that since it had obtained service on one or more defendants in Montgomery county who were liable on the claim, its service on the commission in Shawnee county gave the district court of Montgomery county jurisdiction over the commission. This argument necessitated a consideration of the liability of the county. It will be noted from the agreed stipulation that the floodgate was first necessary in 1921 in order that a portion of a county road might be adequately drained, and that the county and the drainage district entered into a contract for the consideration by which it was agreed that the county might construct the floodgate and that if the board of county commissioners should fail to properly maintain the floodgate then the drainage district could repair it at the expense of the county. The drainage district argued before in this court and argues now that the county is liable under the above provision because the county did construct the floodgate, it did get out of repair, and the drainage 'district did expend the amount claimed in repair of the floodgate. We shall lay aside the question of the claimed liability of the city for a moment and consider only the question of the liability.of the county. It will be remembered that the highway, the drainage of which made this floodgate necessary, was a part of a county road and was maintained by the county and was a part of the state highway system, and on April 1,1929, pursuant to G. S. 1935, 68-418, the state highway commission succeeded to the rights, duties and liabilities of the board of county commissioners with reference to county roads that were taken into the state highway system under that section. In the opinion in Verdigris River Drainage Dist. v. City of Coffeyville, supra, this court considered the question of liability of the county as it had been considered in McCandliss Construction Co. v. Neosho County Comm’rs, 132 Kan. 651, 296 Pac. 720, and said: “Moreover, this court remains of the opinion that the statement in the McCandliss case that Neosho county was no longer liable on the contract, was sound, and we hold the county in the instant case is not -now liable on its contract.” (p. 198.) The first syllabus in Verdigris River Drainage Dist. v. City of Coffeyville, supra, is instructive on this point. It is as follows: “Under the provisions of section 19, chapter 225, of the -Laws of 1929, the State Highway Commission assumed the rights and liabilities of the various counties of the state on all existing contracts for the construction, improvement, reconstruction or maintenance of state highways and bridges, and the counties are not now liable on such contracts.” On this point the plaintiff argues that the question of whether the county was relieved of its liability by the enactment of G. S. 1935, 68-418, was not properly presented when the case was here before. This argument is not borne out by the record. A decision of the point was necessary for a decision on the vital point in the case. The question of the correctness of the ruling on the motion to quash turned upon the question of the liability of the county. The question was carefully considered in the opinion of this court. Moreover, the drainage district cites and relies on the case of Roberts v. Nemaha County Comm’rs, 133 Kan. 15, 298 Pac. 754, and that opinion was cited in the former case and distinguished in the. opinion. The drainage district argues that to give the statute such a construction as to relieve the county from its obligation to perform its contract will render the statute unconstitutional under section 10, article 1, of the United States constitution, which section provides “No state shall . . . pass any bill ... or law impairing the obligation of contracts.” The question of the city’s liability is the only issue which can properly be presented in the instant appeal. The question of the county’s liability was definitely and conclusively set at rest when the case was here before. (Verdigris-River Drainage Dist. v. City of Coffeyville, 149 Kan. 191, 86 P. 2d 592.) (See Syl. ¶ 1 and pp. 197, 198.) The subject of the county’s, liability is not a proper question to be considered here, further than to state that the question of the county’s liability was previously-considered and denied. After our previous opinion the county promptly should have been dropped as a party defendant. That decision bound not only the litigants but the trial court as well. The court should not have ignored it. The next question is the liability of the city of Coffeyville. It will be noted that this floodgate was constructed in 1921. At that time all the territory involved was outside the city limits. In 1928 the city enlarged its limits so as to include a part of the highway in question within the limits of the drainage district, and ever since that date that part of the highway, also known as Sunflower street within the city, which is served and benefited by the floodgate in question has been under the jurisdiction and supervision and has been maintained by defendant, the city of Coffeyville, and the state highway commission. The drainage district contends that the city is liable under G. S. 1935, 24-452. That section provides as follows: “That whenever any drainage district shall include any territory that comprises a part of any incorporated city which has constructed or desires to construct any sewer or drain through any embankment or levee constructed by such drainage district along the bank of any watercourse, so as t.o have an outlet for such sewers into said watercourse, it shall be the duty of such cities to maintain efficient floodgates and pumping apparatus, and keep the outlet of such sewers closed during periods of high water, so that the water cannot run back through such sewers and cause injury to lands protected by such levee; and if any city shall neglect to perform such duty the board of directors of such drainage district may provide the necessary floodgates and pumping apparatus and collect the cost thereof from such city; and the city shall be liable for all damages, if any, caused by such neglect of duty.” At the time the floodgate was repaired it was for the benefit of the city. The first requirement of the above statute is that the “drainage district shall include any territory that comprises a part of any incorporated city.” This requirement is met. The next requirement is that the city “has constructed or desires to construct- any sewer or drain.” The drainage district argues that this requirement is met by the fact that the drain in controversy was partly constructed by the city. We can find nothing in the agreed statement of facts to this effect. Paragraph 5 of the agreed statement of facts states the board of county commissioners, in pursuance of the contract, constructed the drain shortly after the execution of the contract. The plaintiff argues further that the fact that the city has taken over and used the drain and that the drain and floodgate are necessary to the city is a substantial compliance with the statute. No authorities are furnished us wherein such a rule is announced. The question turns upon the construction to be given the statute. The city did not construct a drain nor does it now desire to construct a drain. The drain was already constructed before the city ever had any interest in the matter. To give the statute the meaning contended for by the city would be to read into the statute words that are not there. This court does not care to do that. The judgment of the trial court is reversed with directions to render judgment for the defendants.

The opinion of the court was delivered by Allen, J.: This action was to recover possession and to quiet title to lot 4, block 7, Baxter Springs, Cherokee county, Kansas. The appeal is from a judgment overruling a demurrer to the petition. The petition alleged: That Benjamin Quapaw, a full-blood Qua-paw Indian, died in May, 1926, a resident of Ottawa county, Oklahoma; that plaintiff is a daughter by blood of the deceased Benjamin; that the defendants Agnes Quapaw Hoffman and Jean Ann Quapaw Hoffman are devisees and legatees under his last will. The defendant, Long, is in possession of the property, and the other defendant is guardian of the minor defendant Jean Ann. It was further alleged that Benjamin Quapaw owned allotted and allotted inherited land in Ottawa county, Oklahoma. These lands were restricted against alienation; the restrictions on alienation were removed by the act of congress approved June 7, 1897, to the extent that the allottee was empowered to lease such lands for farming and mining purposes. In 1915 Benjamin Quapaw, joined by his wife, See-Saw, gave a mining lease on these allotted lands; that lead and zinc mines were developed thereon; that Benjamin Quapaw collected as mining royalties therefrom the sum of $179,084, which came into his hands unrestricted and free from governmental control; that the land here in dispute was bought and the purchase price paid out of such unrestricted royalties. The deed was made to Benjamin Quapaw and See-Saw Quapaw, his wife, and the deed was duly recorded in Cherokee county. See-Saw died intestate in 1920, leaving Benjamin as her sole heir, who inherited her interest in lot 4, block 7, Baxter Springs, here in question. The petition sets out the act of congress of June 25, 1910, as amended by the act of congress approved February 14, 1918, which authorized the owner of restricted land, under the regulations of the secretary of the interior to dispose of such lands by will; on October 28, 1924, Benjamin Quapaw executed a will disposing of his entire estate, including restricted and unrestricted lands, to the defendants Agnes and Jean Ann. Plaintiff alleges that the pretended will is void; that under the acts of congress he was not authorized to dispose of his unrestricted land by will; that he was mentally incompetent to make a will and that the will was not executed according to law. The petition alleged: “Plaintiff alleges that at the time her father executed said will hereto attached, marked exhibit ‘B,’ the plaintiff was his child and her whereabouts were unknown; that she was lost to her said father; reported to be dead and was absent, and that plaintiff, his child, was not named or provided for in said will, and that under th'e provisions of section 22-243, Revised Statutes of Kansas 1923, which were in force and effect at the date of her father’s death, her said father died intestate as provided by the Kansas law. “That after the date the title to said unrestricted real estate vested in Benjamin Quapaw as aforesaid, the secretary of the interior on December 31, 1917, declared Benjamin Quapaw incompetent, by authority of the act of congress of June 7, 1897 (30 Stats. L. 62), but prior to the said date of incompetency, to wit, December 31, 1917, the secretary of the interior.exercised no supervision or control over Benjamin Quapaw or his affairs, money or property, and there is not now, nor has there ever been, an act of congress imposing restrictions against alienation of, or empowering the secretary of the interior to control or exercise jurisdiction over, said unrestricted real estate purchased by Benjamin Quapaw with unrestricted money prior to December 31, 1917, as aforesaid.” It was alleged that the plaintiff, as the child of Berg amin Quapaw, deceased, inherited the unrestricted land above described and is entitled to the immediate possession of the land, and prays that her ■ title be quieted against defendants. On this appeal appellant contends that our statute G. S. 1935, 22-243, relating to absent or pretermitted children has no applica- ' tion to a foreign will where a testator was never domiciled in Kansas. In support of this theory the case of Keith v. Eaton, 58 Kan. 732, 51 Pac. 271, is cited and lengthy quotations made therefrom in appellant’s brief. The Keith case is said to be “a parallel case to the case at bar,” and that “We see no difference at all between that case and the case at bar.” In Keith v. Eaton it was held: “The interpretation, of a foreign will, as to the meaning of words used in it, is to be ascertained by the law of the testator’s domicile, unless the circumstances surrounding the testator, or the language of the instrument as a whole, requires a different interpretation, or unless an interpretation by the law of the testator’s domicile will contravene the law of the state in which it is offered for record and probate.” (Syl. ¶ 1.) The rule there announced that the meaning of words in a foreign will devising land in Kansas is, in the absence of controlling circumstances to the contrary, determined in accordance with usage at the domicile of the testator at the time when the will was made, is merely a rule of interpretation. However, it has not escaped criticism by the text writers. In Goodrich, Conflict of Laws, 2d ed., page 440, it is stated: “A conflict of authority exists concerning whether the law of the testator’s domicile or the law of the situs governs the construction of a will of land. There are good reasons for referring this matter to the law of the situs of the land.” But whatever the extent of the rule as to the interpretation of a foreign will, we have held that an interpretation cannot be accepted which brings about a result contrary to the law of this state. Thus in Larned v. Larned, 98 Kan. 328, 158 Pac. 3, it was said: “The descent, alienation or transfer of real property in Kansas is exclusively governed by the laws of Kansas. Under the Kansas statute Larned could not, without his wife’s consent, devise to other than his wife more than a half of his Kansas property, and an attempt to will to others more than a half would have been inoperative as to her. . . . Further it is insisted that the meaning given to the term in New Jersey, the domicile of the testator, is probably the one that was in his mind and that therefore we may properly look to the law of that state to ascertain his intention. Keith v. Eaton, supra, is cited as authority to sustain this view, but while that case sanctions a reference to the law of the domicile to ascertain the sense in which the words of a will are used, that interpretation cannot be applied when it will contravene the law of the state where the will is offered for record and probate. The law of the domicile and the effect given to its provisions by the courts of that jurisdiction may be examined to aid in finding the intention of the testator, but when it comes to the disposition of real property the law of the place where the property is situated must control.” (pp. 331, 333.) In the will before us the intention of the testator is clear, he has used no ambiguous words, hence there is no occasion to invoke the doctrine of Keith v. Eaton. In Larned v. Larned, supra, it was held that a widow, a resident of New Jersey, was entitled to renounce her rights under her husband’s will and take her interest in the Kansas land under the Kansas law. A similar ruling was made in Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815. If a nonresident widow is within the Kansas statute it would be difficult to suggest a reason why a nonresident pretermitted child should be denied the protection of the Kansas laws. This view was expressed in Insurance Co. v. Luskey et al.; 66 Ohio St. 233, 64 N. E. 120, in construing a similar statute. Our statute was borrowed from the Ohio law. (Moore v. Herd, 76 Kan. 826, 93 Pac. 157.) Where a statute is adopted from another state the construction placed thereon by such state should be given great weight. (State v. Campbell, 73 Kan. 688, 85 Pac. 784.) The argument that the Kansas statute as to absent and pretermitted children does not apply because the testator and the absent child were nonresidents is unsound. It is also contended that this action constituted a contest of a will which had been probated with the secretary of the interior, and that such contest is prohibited by our statute G. S. 1935, 22-255. In the case of Vanderwerken v. Marks, 138 Kan. 42, 23 P. 2d 608, an absent child was allowed tó maintain an action of ejectment against the devisees under a will which had already been probated. In that case the court said: “Insofar as the demurrer is concerned, defendants argue that as the time to contest the will has expired plaintiff is precluded from claiming, and rely upon R. S. 1931 Supp. 22-222 and decisions of this court interpreting that statute as it existed before it was amended, especially Medill v. Snyder, 71 Kan. 590, 81 Pac. 216. The difficulty with this argument is that it assumes that the rights of the absent child depend upon a contest of the will, which is not true. (Spiker v. Burns, 113 Kan. 572, 214 Pac. 426.) The child may be well content with every provision of the will with the single exception that, owing to .his being absent and reported dead, he was given nothing. The statute (R. S. 22-243) provides: “ ‘When a testator at the time of executing his will shall have a child absent and reported to be dead, . . . the absent child . . . shall take the same share of the estate, both real and personal, that it would have been entitled to if the testator had died intestate. . . .’ and makes provisions for contribution. Under its terms the rights of such child absent and reported to be dead are not dependent upon the will being contested (9 R. C. L. 41, 28 R. C. L. 81, 18 C. J. 838), and the trial court properly overruled the demurrer.” (p. 45.) In Larned v. Larned, supra, the fact that the will there in question had been probated in New Jersey did not preclude the widow from claiming her interest in the Kansas land under our statute. Under these authorities it is immaterial whether the will was probated in Kansas or in some other jurisdiction. If the approval by the secretary of the interior of the will of Benjamin Quapaw constituted a probate of the will within the meaning of our statute G. S. 1935, 22-255, it would not bar the claim of this plaintiff. She does not claim under the will, but by descent as an heir. Her rights are fixed by the statute and do not depend upon a contest of the will of her father. (Vanderwerken v. Marks, supra.) One question remains for examination. The petition alleged that Benjamin Quapaw was a full-blood Quapaw Indian; that he owned allotted and allotted inherited land; that such lands were restricted against alienation., It was alleged that by the act of congress of June 25,1910, as amended by the act of congress approved February 14, 1913, he was authorized to dispose of such restricted lands by will, subject to the approval of the secretary of the interior. The record shows that the will of Benjamin Quapaw was recommended for approval by the commissioner of Indian affairs “so far as it relates to property under control of the United States” and that such recommendation was concurred in and the will approved by the secretary of the interior. The authority of this full-blood Indian to dispose of his restricted property by will was conferred by the act of congress and was limited by the provisions of such act. Lot 4, block 7, involved in this action, was paid for out of the unrestricted royalties from the mining lease. In the brief for plaintiff many authorities are cited to show that lands so purchased are emancipated from the restrictions on alienation. As defendants make no contention that property in dispute is restricted land, it is unnecessary to review the authorities. We hold the lot in question is unrestricted land. Under the statutes of the United States Benjamin Quapaw could only dispose of his restricted land by will when the action was approved by the secretary of the interior. It is also clear that he could dispose of his unrestricted land.on the same footing as any other citizen. (Blundell v. Wallace, 267 U. S. 373, 45 S. Ct. 247, 69 L. Ed. 664; In re Estate of Pigeon, 81 Olda. 180, 198 Pac. 309.) In Mills, Oklahoma Indian Land Laws, 3d ed., p. 329, it is stated: “When Indian land is unrestricted it is subject to the laws of the state to the same extent as the land of other citizens.” As the land here in dispute is unrestricted land, we express no opinion as to the validity of the will of Benjamin Quapaw as to the restricted land in Oklahoma. As Benj amin Quapaw had the right to dispose of his unrestricted lands on the same footing as any other citizen, we perceive no reason why he could not have made a valid will disposing of the Kansas land in this litigation. But since a valid will would not preclude this plaintiff from asserting her rights, if any she may have, we express no opinion as to the validity of the will as affecting the unrestricted land here involved, or whether such will should be probated in the state courts. • The petition alleges the plaintiff is a daughter by blood of the deceased Benjamin, and this allegation is admitted by the demurrer. She is not precluded from maintaining her action for any reason urged by defendants. The judgment is affirmed.

The opinion of the court was delivered by Wedell, J.: This was an action to recover commissions for the sale of petroleum products alleged to be due under an oral contract. The action was tried by the court. Plaintiff prevailed, and the defendant appeals. Subsequent to the filing of the appeal in this court, H. B. Briney, appellee, died, and the action and judgment have been revived in the name of Wayne Briney, administrator of the decedent’s estate. The appeal is from an order overruling defendant’s motion to strike certain findings of fact and conclusions of law and from the order overruling defendant’s motion for new trial. The real issue in the lawsuit was whether plaintiff, under the particular facts and circumstances to be narrated, was entitled to recover commissions on outstanding and uncollected accounts. The court made findings of fact and conclusions of law, which are as follows: 1. “That on February 5, 1929, the defendant, who at the times in question was the owner of a hardware store and filling station in Cullison, Kan., and also engaged in the business of selling petroleum products at retail by tank wagon to the people in that vicinity, engaged the plaintiff to operate a tank wagon and to act as agent for defendant in the sale of petroleum products, the defendant at such times being the owner of the bulk station, that is, the storage tanks for the handling of petroleum products, and being the owner of the tank wagon used for the distribution of such products. All of such products so handled were purchased and settled for by the defendant and most of them were delivered to the bulk station, where the plaintiff would obtain them for sale and delivery. Defendant received all invoices, and instead of giving them to Briney for checking he put down figures purporting to show receipt of commodities on a slip of paper mid hung them on a hook in his hardware store for the plaintiff to get. Toews also bought oils for his own sales garage operated by him; also he took orders for oil from customers at his store and hung them up on a hook for Briney to get. Decisions as to'charge or cash sales were made by the defendant. The commodities remained the property of the defendant at all times until sold and there was no agreement that plaintiff should bear any losses. All receipts received by Briney were deposited in a Cullison bank to defendant’s credit on which Briney could not draw. Plaintiff kept the books provided for him and weekly gave copies to the defendant. 2. “At such time the plaintiff and defendant entered into an oral agreement as follows: Plaintiff was to sell the petroleum products upon a commission basis, and he was to receive two cents per gallon for deliveries made outside the city limits of Cullison on such commodities as gasoline, kerosene and distillate, and one cent per gallon for sales and deliveries within the city limits of Cullison, and for the sale and delivery of oils and greases outside of the said city limits he was to receive ten percent thereon and on sales of same within said city limits he was to receive five percent thereon. “These commissions were to be paid upon all sales, but there is a dispute as to when the commissions on sales on time or credit should be paid. The defendant contends that such commissions should not be paid until payment was made upon such commodities sold on credit. Plaintiff was to receive a drawing account of $28 per week, to be deducted, however, from the actual commissions earned. Prior to this arrangement the plaintiff had been in the employ of the defendant as salesman for farm implements and hardware handled by defendant. 3. “That this business was conducted by said parties up to February 13, 1933, at which time a dispute arose and plaintiff thereafter did nothing further toward the sale of said commodities. On February IS, and also on February 15, 1933, defendant made demands upon plaintiff for the tank wagon which was in plaintiff’s possession together with the petroleum products contained therein and on February 19, 1933, the plaintiff delivered same to the defendant. 4. “According to then- arrangements it was the duty of the plaintiff to make a ticket on each sale made showing the amount and kind of product sold, whether for cash or credit, and upon making collections to make a ticket showing the amount of cash received and to whom it was to be credited, also each week plaintiff was to make weekly report to defendant showing the amount and kind of products sold, the amount of cash and credit sales, the amount of deposits made in the bank to defendant’s credit, the amount of cash on hand, and upon this report make a weekly inventory. Deductions were supposed to be made of the sales made by plaintiff from the inventory of the goods on hand at the commencement of the relationship and also this report was intended to show the stock of goods received by the plaintiff for sales as shown by the slips of paper made by defendant from the invoices by him received. 5. “During this arrangement plaintiff also ran an account with the defendant for oil and gas purchased by him from the defendant and for hardware and other products purchased by plaintiff from the defendant. 6. “At the termination of the relationship between plaintiff and defendant there was a large amount outstanding and uncollected in accounts resulting from sales made by plaintiff during such relationship. 7. “At the termination of their relationship defendant took possession of all the accounts and notified all the debtors not to pay anything to the plaintiff. Defendant never advised with Briney in any way as to the handling of notes and accounts and never gave Briney any information relating to the same until after the commencement of this suit on February 16, 1965. 8. “The court finds that the total commissions on sales made by plaintiff, including commissions on uncollected accounts, was $8,595.52. That the commissions on uncollected accounts at the time of trial amounted to $1,546.68, leaving a balance on commissions earned by plaintiff in the sum of $7,048.84. 9. “The court further finds that during the course of employment the defendant paid to the plaintiff as commissions the sum of $5,106.81, which should be deducted from the commissions earned, leaving a balance of $1,942.03. 10. “The court further finds that the plaintiff is indebted to defendant on certain items for which defendant is entitled to an offset against the commissions earned, which items and amounts are as follows: “For International truck................................. $500.00 For Briney oil account.................................. 898.00 For seed wheat furnished plaintiff by defendant.......... 92.80 For tag on truck....................................... 15.00 For J. R. Guttridge note................................ 45.00 For hardware account due defendant.................... 232.39 For Ward account...................................... 35.00 11. “That the defendant is not entitled to credit for interest on the Guttridge note after he received same, as the amount due on said note at such time should have been credited on the sums then due to the plaintiff. 12. “That while the Briney $200 note upon its face is barred by the statute of limitations, yet the defendant is entitled to credit for the principal thereof, to wit, $200 as an offset, but is not entitled to credit for interest thereon unless the plaintiff be likewise credited for interest upon an equal amount upon his account for commissions, both of which the court finds should be disallowed. 13. “The court finds that the defendant should be charged with the full amount of the Berry account in the sum of $165. 14. “The court adopts the conclusion of the auditor testified to in the case and finds that the defendant is entitled to an offset of $422.65 on account of what is claimed to be a deficit in cash, although it does not appear that plaintiff was guilty of any negligence in handling said account. 15. “The court finds from the admissions of the parties that plaintiff is entitled to a credit of $634.01 on the sums due Briney from Toews by reason of a check for said amount endorsed by Briney and delivered to Toews for such purpose. 16. “The court finds that the offset claimed by defendant for shortage oj commodities should be and the same is disallowed for the reason that the court is not satisfied from the evidence that the plaintiff actually received the commodities in the quantities charged against him or that if he did so receive them in such quantities that the shortages occurred on account of the misconduct of plaintiff, or that he misappropriated them or any part thereof at a time and in a manner and under such circumstances as that under the relationship of the parties the plaintiff became legally liable to the defendant for the shortages claimed. 17. “The court finds that even although the agreement between the parties provided that plaintiff should not receive commissions upon credit sales until after the accounts for credit sales should be paid, the defendant by his conduct in handling such accounts after the termination of their relationship and in commingling such accounts with his other accounts, taking renewals and chattel mortgages, granting extensions and executing releases, excluding plaintiff from participating in the collection thereof, and the failure of defendant to exercise due diligence in the collection of said accounts, is estopped from claiming that the commissions on said accounts are not due and payable, and that by reason thereof the defendant has become liable to plaintiff for his commissions upon all of said credit sales even although said accounts have not been fully paid. 18. “The .court finds that in the accounting herein had between the accounts of the plaintiff and the defendant the plaintiff is entitled to recover the sum of $1,750.75, as shown by the following summary, to wit: “Total commissions earned by plaintiff.................. $8,595.00 Offsets against said commission as follows: Checks paid plaintiff......................... $5,106.81 Truck ...................................... 500.00 Briney oil account........................... 898.00 Seed wheat................................. 92.80 Tag ........................................ 15.00 Guttridge note ............................. 45.00 Ward account .............................. 35.00 Cash deficit ................................ 422.65 Briney note ................................ 200.00 Berry account .............................. 165.00 Total of above..................................... $7,478.26 Balance ...........'.............................. $1,116.74 Briney check returned................................. 634.01 • $1,750.75 “Conclusions of Law 1. “As a matter of law the court concludes that the plaintiff is entitled to recover from the defendant the sum of $1,750.75, with interest thereon at the rate of six percent per annum from the date of the trial of this suit. 2. “That the costs of this action should be divided equally between the plaintiff and the defendant.” (Italics inserted.) We shall refer to the parties as plaintiff and defendant. Defendant first contends the action was barred by the three-year statute of limitations. (G. S. 1935, 60-306, Second.) He directs our attention to finding number three, which discloses that after the dispute on February 13, 1932, plaintiff made no further sales and that defendant on February 14 and 15, 1932, demanded a return of his tank wagon, together with its contents, and that the instant action was not filed until February 16, 1935. He further urges that the holding of the property by plaintiff until February 19, 1932, could not extend the period of limitation. It will be noted the trial court did not definitely determine when, under the oral agreement, the commissions should become due; that is, whether they were due on the date of sales or on the date the accounts were ultimately collected. Plaintiff pleaded he was entitled to commission on all sales without alleging when the commissions were due. His testimony, when considered in its entirety, was open to the interpretation that there was no definite agreement as to when the commissions should be due. Defendant pleaded and testified they were not due until the accounts were collected. Now the accounts on which commissions were sought in this action were the accounts which were outstanding and uncollected on February 13 and 15, 1932. Had defendant claimed the commissions were due on the date of sale, the court would have been obliged to make a definite finding as to when they were actually due in order to determine whether the action was barred. Under defendant’s own theory and evidence, however, the action was not barred, as none of the accounts upon which commissions were sought had been collected over three years ago. Moreover, defendant took possession of all accounts and notified all debtors not to pay plaintiff. It is also well to note defendant credited plaintiff’s account with the contents of the tank wagon in the sum of $16.66 on February 19, 1932. The keys to the bulk station were not delivered to defendant until February 20,1932. Defendant also made collections on oil accounts even after this action was filed on which he actually credited plaintiff’s commission account with the respective commissions in the sums of $115.93 and $193.96. The latter amount was credited on July 19, 1933. In support of defendant’s contention that the action was barred, he cites cases involving the severance of an ordinary employment. They are not applicable here. It is next urged appellee by his failure to keep a true account of sales made and of merchandise on hand, coupled with admitted misappropriations and willful disobedience of instructions, forfeited his right to commissions. An auditor was employed by the defendant and defendant was fully credited with amounts found due him according to that audit which the court accepted. That finding, however, clearly indicates the court did not believe there was negligence on plaintiff’s part in the handling of the accounts. Plaintiff possessed only an eighth-grade education, and it appears he regularly sought the assistance of defendant’s bookkeeper in the handling of his records. At any rate, there was nothing disclosed which barred a recovery of his commission after defendant was properly credited with the amounts found due according to defendant’s own auditor. Defendant next insists finding number 16 should have been stricken in response to his motion for the reason it is unsupported by the evidence and that the undisputed testimony discloses appellee’s merchandise account was short in the sum of $1,061.91. The trial court was the court which defendant was required to satisfy that such shortage actually existed. That court plainly said the evidence did not satisfy it such shortage existed. A court is not obliged to accept at full value even testimony which is not directly contradicted. (Smith v. Lockridge, 145 Kan. 395, 65 P. 2d 345; Kallail v. Solomon, 146 Kan. 599, 72 P. 2d 966; State v. Jones, 147 Kan. 8, 11, 75 P. 2d 230.) On review of findings of fact this court is concerned only with evidence which supports or tends to support the findings and not with evidence which overthrows or tends to overthrow them. (Smith v. Cudahy Packing Co., 145 Kan. 36, 40, 64 P. 2d 582; Settle v. Glenn, 147 Kan. 502, 503, 78 P. 2d 57.) In view of the manner in which the commodities were handled and the business transacted, we cannot say there was no substantial evidence to support the finding. Defendant finally urges the court erred in making finding number 17, to the effect that defendant was estopped from enforcing the provisions of the agreement which provided that.plaintiff was not entitled to commission on uncollected accounts. That contention, in view of the facts, is incorrectly stated. It assumes something not found. The trial court did not find there was no commission due on uncollected accounts. The substance of its findings and the effect of its judgment are exactly to the contrary. Indeed, defendant himself credited plaintiff with commissions on accounts which he, the defendant, collected even after this action was filed. Just what did the court find on the subject of estoppel? It found, in view of defendant’s conduct as shown in finding number 17, that defendant was estopped, even though the agreement was to the effect that no commissions should be due until the accounts were paid. We fail to see any error in that finding or in the conclusion based thereon. The conduct of the defendant as disclosed by that finding is supported by the evidence. The defendant had passed upon all credits. Even on defendant’s own theory as to when the commissions became due, plaintiff obviously had an interest in the collections of the accounts at the time he quit making further sales. Finding number 7, which is not challenged, discloses how completely defendant interfered, hindered and prevented the making of collections by plaintiff and how drastic was his action in preventing further performance by the plaintiff. The defendant took it entirely upon himself, without consulting plaintiff in any manner, to make all collections. He quite effectually barred plaintiff from all participation in that effort. He assumed complete jurisdiction and control. He later extended further credit on the accounts, gave releases, took mortgages and mingled the accounts with his own hardware business. He handled the accounts in such manner as appeared most advantageous to him without regard to the interests of the plaintiff. His method of making or not making collections of these accounts was determined largely by his desire to create good will and to also advance the interests of his hardware business. A brief portion of defendant’s testimony will sufficiently disclose finding number 17 was well supported by the evidence. Defendant testified: “They were my accounts. They were not his. “Q. Were some of these people able to pay? A. Claimed they weren’t. “Q. Well, were they? A. I couldn’t say. “Q. Did you investigate to see whether they were or not? A. I investigated my customers and I would furnish them stuff so they could work and keep on farming. ... I. have no record that would show the mortgages I took. I know the notes are shown, but they are not shown as divided. ‘The bill of sale I took from Guttridge on the implements are out at his place. I never took one of them.’ I gave up the property, but I did not give up the notes.” (Italics inserted.) The defendant could not in this manner interfere, hinder or prevent performance by the plaintiff and thereafter disclaim liability for commissions on the ground of nonperformance. (12 Am. Jur., Contracts, § 386; 2 C. J., Agency, § 439, p. 772; 13 C. J., Contracts, §§ 721, 722, 723; Restatement, Contracts, § 315; Mill v. Pope, 29 Kan. 289; Supply Co. v. Cement Co., 91 Kan. 509, 512, 138 Pac. 599.) Nor is it a valid defense, in the instant case, to say plaintiff failed to show he could have made collections where the defendant failed. Plaintiff was deprived of that opportunity. Had he been given the opportunity and failed, we would be confronted with a different question. Defendant admittedly was moved by other considerations than the mere collection of the petroleum accounts. The trial court also weighed the evidence on the question whether plaintiff’s conduct had been of such a character as to justify defendant’s assumption of complete control over the accounts, and by its findings and judgment resolved that question against the defendant. In view of the record, we are not inclined to disturb the judgment. It is therefore affirmed.

The opinion of the court was delivered by Wedell, J.: This was an action to obtain a declaratory judgment interpreting two sections of the new probate code. The question presented is whether an estate may be closed prior to the expiration of nine months after July 1,1939, the effective date of the new code, where the estate had been in the process of administration for over one year prior to July 1, 1939. The district court ruled it could be, and the executors appeal. The trial court made the following findings of fact, which are not challenged: “The court finds that D. R. Siefkin died testate, a resident of Wichita, Sedgwick county, Kansas, on the 19th day of October, 1937, and that on the 25th day of October, 1937, the last will and testament of D. R. Siefkin, deceased, was duly admitted to probate in the probate court of Sedgwick county, Kansas; and that the defendants, George Siefkin and Rachel L. Spradling, were on said date duly appointed executors of said estate, and that they duly qualified on said date as such executors, and that letters testamentary were issued to them, and that the said George Siefkin and Rachel L. Spradling are still the duly appointed, qualified and acting executors of said estate. “The court further finds that insofar as the executors know, all of the debts of said estate have been paid, and that the federal estate tax and the state inheritance tax have been duly determined and paid. “The court further finds that more than one year has elapsed since George Siefkin and Rachel L. Spradling qualified as executors of said estate, and that said estate has not been previously closed, for the reason it was kept open for final determination of state inheritance tax and federal estate tax which have now been determined, and that said estate is ready to be closed, but that no petition for final discharge was filed prior to July 1, 1939. “The court further finds that Forest D. Siefkin, Ruth M. Siefkin Bacon, May B. Short, Rachel L. Spradling, Ernest R. Siefkin and George Siefkin are the sole residuary devisees and legatees under the last will and testament of said decedent. “The court further finds that an actual controversy exists between the plaintiffs and the defendants herein, as to whether or not the estate of D. R. Siefkin should be closed. “The court further finds that at the time of the appointment and qualification of said executors, there was in force and effect a nonclaim statute, being section 22-702 of 1937 Supplement to General Statutes of Kansas, 1935, and the statute of limitations, section 22-727 of the General Statutes of Kansas, 1935, which barred all claims which were not exhibited or set for hearing within one year from the date that said executors qualify. “The court further finds that the 1939' legislature of the state of Kansas passed an act known as the Kansas probate code, being chapter 180 of the Session Laws of 1939, which became effective July 1, 1939, and in which act the above-mentioned sections of the statute effective at the time of the qualification of said executors, were repealed, and a new nonclaim statute, being section 215 of article 22 of chapter 180 of the Session Laws of 1939, was passed, which provides, in part, as follows: “ ‘In any estate in the process of administration at the time of the taking effect of this act in which any executor or administrator has not been discharged, all demands . . . not exhibited as required by this act within nine months after the taking effect of this act shall be forever barred . . ” “The court further finds that the defendants contend that the repeal of section 22-702 of the 1937 Supplement to General Statutes of Kansas, 1935, and the repeal of section 22-727 of the General Statutes of Kansas of 1935, and the adoption of section 215 of article 22, chapter 180 of the Session Laws of 1939, extends the time within which claims may be filed against said estate, in event there should be any such claims, for a period of nine (9) months from the effective date of said act; and that the plaintiffs contend that the passage of said act by the 1939 legislature does not extend the time within which claims can be filed against said estate. “The court further finds that a controversy has arisen between the plaintiffs and defendants herein, as to whether or not, in event section 215 of article 22, chapter 180 of the Session Laws of 1939, extends the time within which claims may be filed against said estate, the executors can make application, pursuant to section 281 of article 26 of chapter 180 of the Session Laws of 1939, for permission to proceed with the closing of said estate under and pursuant to the procedure under the former statute in effect prior to July 1, 1939, and if the probate court of Sedgwick county, Kansas, should determine that to hold said estate open longer would not be feasible and would work an injustice, such order would have the effect of putting into operation the prior nonclaim statute and the statute of limitations applicable prior to July 1, 1939; and if such an order was made by the probate court, to proceed under the old statute, whether the executors could proceed in part under the old statute, so as to bring the former nonclaim statute and the statute of limitations into operation, and then proceed under the new statute with the remainder of the proceedings for closing the estate, so as to have a determination of heirship, which would bind real property in said estate. “The court further finds that there is considerable real property in said estate which will go to the residuary devisees under said last will and testament. “The court further finds that section 215 of article 22, chapter 180 of the Session Laws of 1939, and section 281 of article 26, chapter 180 of the Session Laws of 1939, should be construed by this court. “The court further finds, from the evidence, that the members of the Bar Association of the state of Kansas, and particularly the Bar Association at Wichita, Kan., are not agreed upon the construction to be placed upon said statutes, and that great public interest is involved, in view of the many estates pending in the probate court of Sedgwick county, Kansas, and other portions of the state of Kansas; and that the said statutes should be construed by this court in order that the executors herein may proceed with the further administrations of said estate, or the closing of the same, without subjecting themselves to liability and without clouding the title to the real property involved in said estate.” The two principal provisions of the code to which our attention is directed are sections 215 and 281. The former section reads: “All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor, or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment: Provided, That the provisions of the testator’s will requiring the payment of a demand exhibited later shall control. No creditor shall have any claim against or lien upon the property of a decedent other than liens existing at the date of his death, unless an executor or administrator of his estate has been appointed within one year after the death of the decedent and such creditor shall have exhibited his demand ire the manner and within the time herein prescribed. In any estate in the process of administration at the time of the taking effect of this act in which any executor or administrator has not been discharged, all demands, including demands of the state, whether due or to become due, whether absolute or contingent, including any demands arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within nine months after the taking effect of this act shall be forever barred from payment by any such executor or administrator unless a provision of a will requires payment of any such demand exhibited later. This section applies to both domiciliary and ancilary administration.” (Our italics.) The latter section provides: “The rules of procedure herein prescribed shall govern all probate proceedings brought after they take effect and also all further procedure in probate proceedings then pending, except to the extent that in the opinion of the court their application in a particular proceeding when they take effect would not be feasible or would work injustice, in which event the former procedure applies. This act shall take effect and be in force on and after July 1, 1939, and after its publication in the statute book.” (Our italics.) It should be noted that under the issues joined and under the undisputed facts the only actual controversy presented is whether the executors may be discharged prior to nine months from July 1,1939. It clearly appears the estate is now fully administered with the possible exception of the payment of the costs of administration. No demands of any kind or character are pending, none are known to exist and we are advised by appellants that they know of no claim of any kind or character which had not become barred before the new code became effective on July 1, 1939. The only real controversy which could possibly arise, in the instant case, is therefore whether the new code revived the remedy as to demands which were effectually barred prior to July 1, 1939, and extended the period of limitation nine months after July 1, 1939. We shall first consider section 281. We do not think it was intended the provisions of that section should relate to statutes of non-claim or limitation. The italicized word “procedure” refers to procedure under the former law and we think was intended to refer to the mode or method of bringing and conducting litigation under the former law rather than to the time within which it was required to be commenced. This intention, it seems to us, is also rather clearly indicated by the use of the deliberately selected words previously employed, to wit, “in any particular proceeding.” In other words, it appears it was intended that where some particular proceeding, in the course of administration, had been instituted prior to the effective date of the new code and in the opinion of the court the application of the new rules of procedure would not be feasible or would work an injustice, if that particular procedure were disrupted, that then the procedure under the former law should apply. What about section 215? Was it the intention of the lawmakers to tie up the settlement of the voluminous number of decedents’ estates for nine months after July 1, 1939, where all claims against the estates had been effectually barred under the former law prior to that date? We do not think so. Had such been the intention, it easily could have been expressed in a few words and undoubtedly would have been done. Statutes of limitation are presumed to be prospective and not retrospective in their operation in the absence of clear legislative intent to the contrary, and the presumption is against an intent on the part of the legislature to make a statute retroactive. (17 R. C. L., Limitation of Actions, § 28. On questions of construction where the constitutionality of such statutes is involved, see, also, 17 R. C. L., Limitation of Actions, § 29.) Moreover, it clearly appears to have been the legislative intent to speed up rather than to delay the settlement of decedents’ estates. Otherwise there would have been no occasion to reduce the period for exhibiting claims from one year to nine months. We have no hesitancy in saying that it was not the legislative intent to revive demands which were effectually barred prior to the effective date of the new code. That, as heretofore stated, answers the only possible controversy in the instant case. The trial- court, at the request of the parties, made conclusions of law on questions relative to which no actual controversy exists in the instant case. We have no doubt such conclusions were made with the view of obtaining a speedy interpretation and thus to be generally helpful to both the bench and bar. Concerning those conclusions, we express neither approval nor disapproval at this time. We readily confess that, prompted by the same motives as the trial court, we likewise are tempted to go beyond the actual controversy presented. Upon deliberate consideration, however, we have concluded the best results will be obtained by meeting questions of interpretation as and when the actual controversies arise. There is one subject which does not pertain to interpretation of the new code which the respective parties have stressed and which we pause to note. That question deals with the power of the legislature to revive barred claims. An actual controversy on that ques tion could, of course, arise in the instant case only in the event such legislation had in fact been enacted. The question, if before us, would not be entirely new in this state. That title to property, real or personal, which had become fully vested, could not be arbitrarily divested by a subsequent act extending the time for filing actions is settled law in this state. (Bowman v. Cockrill, 6 Kan. 311, 340; Terrill v. Hoyt, 149 Kan. 51, 57, 87 P. 2d 238.) That such legislation would deprive a person of property without due process of law in contravention of constitutional guaranties is clear. (Stewart v. Keyes, 295 U. S. 403, 79 L. Ed. 1507; Terrill v. Hoyt, supra.) See, also, annotation, 36 A. L. R. 1316; 12 C. J., Constitutional Law, § 576 (3). In the early Bowman case, supra, it was said: “After a cause of action is once barred by a statute of limitations it is not in the power of the legislature to revive it by subsequent legislation; 6 Wis. 527; 11 Wis. 371, 432, 442; 13 Wis. 245; 8 Blackford, 506; 2 Ind. 647; 3 Littell 137; 1 English 495, 496; 5 Metc. (Mass.) 400, 411; 3 N. H. 473; Angelí on Limitations, 19, note, and cases there cited. (But see the case of Swickard v. Bailey, 3 Kan. 507, 513, and the distinction there made between limitations and prescriptions.)” (p. 340.) ' It is true some conflict of opinion exists relative to the legislative power to revive barred claims of a purely personal character. (12 C. J., Constitutional Law, § 576 [3].) In the instant case claims completely barred before the effective date of the new code, if revived, would constitute not only a personal demand, but would also encumber the title to the land passing under the will to the residuary devisees, which title had become ripened and unassailable prior to July 1, 1939. It therefore follows that if the secondary question were before us, the result would be the same, namely, that the administration of the instant case may be closed without delay. The judgment of the district court is affirmed as to the actual controversy of whether the new code revived demands barred prior to July 1,1939. As to the conclusions of law on other questions, we express no views in the instant case.