Barbour County index. [volume] (Medicine Lodge, Kan.) 1880-current, 1891-09-16

dtStinctp Has not the judicial en-
croached upon the legislative until to-
day we have fourth power of govern
ment, viz: 'Judge-made law All leg
islative laws of general interest are
published IN the newspapers, 80 that
the people may read and know them.
But who, outside of lawyers and their
unfortunate clients, ever hear of this
vast and far reaching system Of Judge
made law? How is it enactedp 1t
arises from the power of the courts to
construe the acts of the legislature.
The legislature may have intended one
thing, but If the courts say it intended
another, what the court say goes. This
is 'judge-made' law.
The courts say, it is nonsensical to
say that the legislature intended so and
so,' and they proceed to give their con-
structiOn and make their law, and when
they are through the people say, it is
nOnsensical to say that the legislature
ever intended to make any such law.
Put the legislative act and the judicial
act side by side, and compare them, and
you will lind them as far apart in their
meanings as the two poles. Now, Mr..
Editor. the people want q judiciary that
will enforce laws and not enact them.
Every person should be able to give a
reason for the faith that Is in him, and
In order not to consume too much of
your valuable space shall at this time
conhne myself to only one of the crying
evils Of 'judge-made' law, viz: The ap-
pOintments of receivers IN mortgage
foreclosures. Section 254, OF the code
of civil procedure provides that a re-
ceiver may be appointed by the supreme
court, the district court, or any Judge
Of either, or in the absence of said
judges from the county, by the probate
judge
'Judge-made' law interpolates in this
section after the word appointed the
words without notice'-(41 Kansas,
47S). The startling effect OF this judi
cial enactment will be seen later on.
Sections 542 and 54S of the same code
specify what orders of the district court
may be reviewed by the supreme court.
The legislature in enacting these Sec
tions never dreamed that it was passing
law to prevent an appeal from the ap-
pOintment of receiver of an unfortun-
ate debtors homestead. The judicial
mind thought otherwise, and as early
as the Fifth Kansas 294, it enacted that
no appeal could be taken from an Or
der appointing receiver. In the 3lst
Kansas, 80, Judge Horton revolted at
the harshness of this 'judge-made' law,
and asserted that the appeal could be
taken, but he was over-ruled by his as
sOciateS. The ordinary layman would
think that if the mortGagor could not
appeal from tho appointment of a re-
ceiver. surely the MORTGAGE could not
appeal from his removal. But the or
binary layman' is forever doomed to be
disappointed whenever he undertakes
to tread the may intricacles of the
labyrinth of 'judge-made' law. For the
supreme court holds that an order OF
the district judge removing receiver
can be appealed from.
The constitution provides that the
homestead shall not be alienated with
out the consent Of husband and wife.
In the recent case Of In Re Bennington
the supreme court held that receiver
of homestead did not differ in this
respect from other property.
Now let me illustrate possibilities of
this 'judge-made' law, and in so doing
have in my mind cases that have oc-
CURED in my own practice, for the
truth il ever stranger than fiction.
A farmer gives mortgage for 81, 1000
on his homestead, and owing to failure
OF crops and hard times he defaults in
the payment OF an interest coupon.
His farm at the time the loan was eff
fected, was appraised by the agent of
the loan company at $1,000. The loan
company begins foreclosure in the dis
trlct court, and at the same time files
with the probate judge 1.-THE district
judge being absent from the county, an
affidavit that the property is probably
insufficient to discharge the mortgage
debt (Section 254 of COde), and there
upon the probate judge, without notice
to the farmer, appoints q receiver OF
his homestead and all the crops there.
on. A copy of this order is given to
the sheriff, together with the summons
and when the sheriff serves the sum.
mons he ut the same time elects the
farmer and his family from their home
and puts the receiver into possession OF
all that the poor man probably has
upon the face Of the earth; then, like
our Lord, he has no place to lay his
head.
The farmer comes to town and con.
suits his lawyer, who sympathizes with
him but tells him he cannot appeal from
the order appointing the receiver, but
that he will apply to the district judge
to remove the receiver. The district
judge (whO is probably an alliance
judge promptly removes the receiver
The unsophisticated farmer thinks this
is an end of the matter, and that the
loan company cannot appeal, as he
could not. But alas, he is ignorant OF
the mysteries of 'judge-made' law. The
loan company does appeal and a judge
of the supreme court, again without
notice to the poor farmer, makes an or.
der staying the order of the district
judge, and the receiver, triumphant
remains in possession of the farmers
home and crops.
BY this time the poor farmer comes
/ to the conclusion that if judges are tc
make laws as well as the legislature, il
2 is better to have judges near the PEG.
I pie, who know their wants and car
sympathize with them, and who think
| that the world contains other people