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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the petitioner in a proceeding instituted pursuant to the provisions of K. S. A. 60-1507.
The petitioner contends (a) that he had no attorney at the time he was arraigned in the criminal proceedings which resulted in his conviction; and (b) that there was too much time delay between his arrest and his arraignment.
The petitioner was originally charged on the 2nd day of May, 1963, in the city court of Hutchinson, Reno County, Kansas, with two counts of burglary in the second degree and one count of grand larceny.
The records in the case disclose that a warrant was served upon the petitioner, and he was brought before the judge of the city court on the 3rd day of May, 1963, at which time the matter was continued to the 10th day of May, 1963. The petitioner, unable to post bond set in the amount of $5,000, was held in custody by the sheriff.
The forms used by the city court of Hutchinson, Kansas, indicate that the petitioner s date of “arraignment” was May 3, 1963, and that upon his appearance before the judge of the city court on the 10th day of May, 1963, he entered a plea of “not guilty” and requested the appointment of counsel.
On the 22nd day of May, 1963, the petitioner was brought before the judge of the city court for a preliminary hearing, at which time the petitioner, an indigent, was represented by court-appointed counsel.
At the preliminary hearing evidence was introduced by the state, but none was offered by the petitioner. The grand larceny charge was dismissed and the petitioner was bound over to the district court for trial on two counts of burglary in the second degree. Bond was set at $5,000. Unable to post bond the petitioner was held in custody in the Reno county jail.
On the 23rd day of September, 1963, an information was filed in the district court of Reno County, Kansas, charging the appellant with two counts of burglary in the second degree. The matter was called for trial on the 4th day of November, 1963, and the petitioner appeared in person and was represented by counsel of his choice, John K. Leighnor. He was duly arraigned and entered a plea of not guilty to the charges. The case was tried before a jury which, after hearing the evidence, argument of counsel and instructions of the court, found the petitioner guilty as charged. The petitioner was thereupon sentenced to the Kansas State Penitentiary for a period of not less than five nor more than ten years on each of the counts, said sentences to run concurrently. (He is presently in confinement under this sentence.)
An effort was made by the state to introduce evidence of one prior felony conviction, but this was rejected by the trial court on the ground the photostatic copy of the journal entry of conviction was improperly certified, as a result of which the petitioner was not sentenced under the habitual criminal act. (K. S. A. 21-107a.)
Counsel for the petitioner filed a motion for a new trial setting forth five grounds in his motion. After hearing the motion it was overruled by the trial court. No appeal was perfected to the Supreme Court in the criminal proceeding.
Thereafter and on the 23rd day of July, 1964, the petitioner filed a letter in the district court of Reno county which was treated as a motion for relief under the provisions of K. S. A. 60-1507. The only grounds stated in the petitioner’s motion were as follows:
"... I had no lawyer at the time I was arraigned. There was too much time before I was arraigned. I didn’t see a lawyer until right before my Preliminary hearing. . . .”
It will be noted this letter was filed before Rule No. 121 of the Supreme Court was adopted. Upon receipt of this letter the trial court wrote to the petitioner requesting whether he had evidence other than his unsupported and uncorroborated word as to the matters set forth in his letter.
On the 31st day of July, 1964, the petitioner’s reply in substance stated that the court transcript and the records of his arrest and arraignment would be proof of his allegations, and that he was relying upon these records.
On the 31st day of July, 1964, the court thereupon considered the petitioner’s motion, and after examining the records and files in the case found that they conclusively showed the petitioner was entitled to no relief; and that the burden of proof cast upon the petitioner was not sustained by his unsupported and uncorroborated statements.
The petitioner was not present at the hearing on his motion filed pursuant to the provisions of 60-1507, supra, nor was counsel appointed to represent the petitioner at such hearing.
Appeal has been duly perfected from the order of the trial court overruling his motion for relief under 60-1507, supra, and the trial court appointed Albert S. Teed, a regularly practicing attorney of the Reno County Bar to represent the petitioner in the Supreme Court on his appeal. Leave was granted for the petitioner to proceed in forma pauperis.
The appellant’s first contention is that he was without counsel at his “arraignment.”
It is apparent the appellant is referring to the first reading of thé warrant to him in the city court of Hutchinson, Kansas, when he speaks of the “arraignment.” Forms similar to those used in the city court of Hutchinson have been before this court on previous occasions. The matter was thoroughly considered in State v. Jordan, 193 Kan. 664, 396 P. 2d 342, cert. den. 380 U. S. 920, 13 L. Ed. 2d 805, 85 S. Ct. 917, where it was noted that the city court of Coffeyville had the same criminal jurisdiction as justices of the peace in the state of Kansas. (Citing, G. S. 1961 Supp., [now K. S. A.] 20-1603.)
When a city court is established in a city of the first or second class, the city court in criminal matters has the same jurisdiction that justices of the peace now have in the state of Kansas. (K. S. A. 20-1403.)
In the Jordan case it was held:
“A justice of the peace who sits as an examining magistrate at a preliminary examination of an accused who is charged with the commission of a felony, has no jurisdiction to arraign the accused or to accept a plea of guilty on said charge, and, where the transcript of the examination discloses such a purported arraignment of the accused and his plea of guilty to said charge, it is a nullity and should be disregarded.” (Syl. ¶ 3.)
Subsequent decisions adhering to State v. Jordan, supra, are State v. Talbert, 195 Kan. 149, 402 P. 2d 810, cert. den. 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143; Goodwin v. State, 195 Kan. 414, 407 P. 528; and McFarland v. State, 196 Kan. 417, 411 P. 2d 658.
Here the appellant was represented by counsel, both at the time of the preliminary hearing and at the time of his arraignment in the district court.
In Goodwin v. State, supra, it was said:
“. . . The term arraignment is sometimes used loosely. Although not explicitly defined by statute, it refers in general to the first step in the progress of a trial wherein the accused is called to the bar of the court; his identity established; he is informed of the charge against him and called upon to plead to that charge (22 C. J. S., Criminal Law, §406; 21 Am. Jur. 2d., Criminal Law, §452). It would appear that what appellant is complaining about is the fact that when he was initially brought before the magistrate issuing the warrant for his arrest upon the charge of burglary he was without counsel. The appearance before an examining magistrate — in this case the city court of the city of Hutchinson — upon return of a warrant pursuant to K. S. A. 62-602 in a felony case is not properly termed an arraignment, there being no authority in such magistrate to arraign one charged with a felony (State v. Talbert, 195 Kan. 149, 402 P. 2d 810, cert. den. October 11, 1965, 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143, and we are not aware of any authority for or constitutional right to the assistance of counsel at this point under the circumstances shown. At this initial hearing the record does indicate appellant 'was duly arraigned by having the charge distinctly read to him, and being required to plead thereto, pleaded not guilty.’ It was proper for the accused to be informed of the charge against him and for that fact to be recorded, but the balance of the procedure was improper and should not have been followed. However, this purported arraignment and plea could not in any wise prejudice the rights of the appellant especially in view of the fact he did plead not guilty (State v. Talbert, supra, State v. Jordan, 193 Kan. 664, 396 P. 2d 342, cert. den. March 1, 1965, 380 U. S. 920, 13 L. Ed. 805, 85 S. Ct. 917.)” (pp. 418, 419.)
The situation before the court in Goodwin was identical to the factual situation in the instant case and controls its disposition.
This court has consistently held that an indigent defendant in a criminal proceeding has no constitutional right to have counsel appointed by the court to represent him in a preliminary hearing. (See, State v. Daegele, 193 Kan. 314, 393 P. 2d 978, cert. den. 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686; and State v. Talbert, supra.) Here, however, the appellant was represented by counsel at the preliminary hearing, and subsequently demanded a trial by jury upon arraignment in the district court and the entry of a plea of not guilty.
The second point concerning which the appellant complains is that he was denied due process of law in that his “arraignment” was illegally delayed eight days from the date of his arrest when he was taken into custody.
Here again the appellant is erroneously referring to his arraignment as the reading of the complaint at his initial appearance made before the judge of the city court of Hutchinson, Kansas.
The record herein discloses that on the 2nd day of May, 1963, the appellant was arrested on a warrant charging him with the commission of three separate felony counts; that he was taken before the judge of the city court on the 3rd day of May, 1963, at which time the matter was continued until the 10th day of May, 1963. The important fact disclosed by the record is that the appellant was brought before a magistrate soon after he was arrested by the sheriff of Reno County, Kansas.
The delay of which the appellant complains did not in any way deprive him of a fair trial. It follows that he was not denied due process of law.
In the case of Cooper v. State, 196 Kan. 421, 411 P. 2d 652, there was actually delay between the appellant’s arrest and the time he was brought before a magistrate in the first instance. The court there held:
“Undue delay in bringing one accused of crime before a magistrate is not, of itself, a denial of due process. It is only where a preliminary delay in some way deprives an accused of a fair trial that there can be a denial of due process.
“The guaranty of a speedy trial contained in Section 10 of the Bill of Rights of the Kansas Constitution does not refer to the preliminary examination, but rather to the trial held after an indictment is returned or an information is filed, and at which the issue of guilt or innocence is to be determined.” (Syl. ¶¶ 1, 2.)
On appeal to this court the appellant seeks to raise a third point. He charges that the trial court erred in allowing a statement which he had been coerced into signing by officials, prior to having the advice of counsel and prior to arraignment, to be used against him at the time of his trial.
This point was not raised by the petitioner in his motion to vacate the judgment and sentence and therefore was not presented to the trial court. In the criminal proceeding which resulted in the appellant’s conviction he was represented by counsel of his own choosing, and this point was not raised at the trial by any objection to such evidence or in the appellant’s motion for a new trial. Under these circumstances it comes too late for the appellant to attempt to raise this question on appeal in the 1507 proceeding for the first time. He is presumed to have waived any objection to this point by his conduct, through counsel, at the trial in the criminal proceeding.
The trial court in the instant case, which sentenced the appellant, in determining the points raised by the appellant in his motion to vacate the judgment and sentence, considered the files and the records before it in the criminal proceeding which it found conclusively disclosed that the appellant was entitled to no relief — that the appellant in his motion raised no triable issues of fact or substantial questions of law which would require his presence in the court at the time of the hearing on the motion or require the appointment of counsel to represent him. (Rule No. 121 [f], [h] and [i] — 194 Kan. xxvrn.)
The record on appeal in this court in the 1507 proceeding sustains the trial court in its findings and conclusions.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This appeal is from an order of the district court of Bourbon County overruling plaintiff’s motion for relief under K. S. A. 60-1507.
The facts are not complicated. On December 21, 1963, the plaintiff was arrested without a warrant by police officers of Fort Scott, Kansas, and placed in jail. On January 2, 1964, a complaint was filed charging plaintiff (appellant herein) with three counts of soliciting children under the age of fifteen years with the intent to induce them to commit immoral acts.
The following day, January 3, 1964, plaintiff was taken before the county court of Bourbon County, where he entered a plea of not guilty to all three charges and waived preliminary hearing. At these proceedings, plaintiff was not represented by counsel.
Three days later, on January 6, 1964, plaintiff appeared before the Bourbon County District Court where the information was read and explained to him, and Howard Hudson, a reputable attorney of Fort Scott, was appointed to represent him. On February 12, 1964, the plaintiff again appeared in district court accompanied by appointed counsel where, after counts one and three of the information were dismissed, he entered a plea of guilty to count two and was sentenced to the Kansas State Penitentiary for a term of not less than one nor more than five years. The record indicates that plaintiff was sent to the Kansas State Reception and Diagnostic Center for examination before beginning the prison sentence. No motion for a new trial was filed and no appeal was taken from the sentence imposed.
Subsequently, plaintiff filed a motion pursuant to K. S. A. 60-1507 attacking the validity of his sentence and seeking to be released from confinement. The district court set the matter for trial, again appointed Mr. Hudson as counsel, and ordered plaintiff returned for an evidentiary hearing at which both parties introduced testimony. At the conclusion of the hearing, the district court prepared a comprehensive memorandum in which it summarized the testimony of the witnesses, made findings of fact, and concluded that plaintiff had not sustained his burden of proof but had failed to establish grounds for discharge. Plaintiff’s motion was therefore denied. Notice of appeal was filed by plaintiff pro se and Kenneth L. Briggs, a responsible member of the Bourbon County Bar, was appointed to represent the appellant.
On this appeal, the plaintiff complains that his constitutional rights were abridged in three particulars: (1) That he was not arraigned until thirteen days after his arrest; (2) that he was not represented by counsel at his arraignment; and (3) that while confined he was refused permission to consult an attorney from December 21, 1963, to January 3, 1964.
It is evident tihat the plaintiff’s references to arraignment are intended to allude to his appearance before the county court, and they will be so considered by us.
Needless to say, this court does not approve of unwarranted delay, either in the filing of formal charges against a suspect who is confined in jail, or in taking him before a proper magistrate for examination. We subscribe to the prevailing view that when a person is arrested for a crime, either with or without a warrant, he is to be taken before a magistrate with reasonable promptness and without unnecessary delay. (State v. Beebe, 13 Kan. 589; 5 Am. Jur. 2d, Arrest, §77, p. 763.)
The state makes no attempt to justify its failure to take the plaintiff before an examining magistrate until after he had languished in jail for nearly two weeks. Unexplained, a delay of such proportions indicates indifference on the part of law enforcement officers toward their official responsibilities. It also infringes the right of every person arrested for a crime to an early examination before a magistrate (K. S. A. 62-610, 62-614). We are not disposed to condone such official shortcoming.
The present action, however, is not one to test the validity of an arrest, nor one to recover damages for an illegal detention. Neither is it a proceeding to gain release from an unlawful custody prior to trial. This case attacks the validity of the sentence pronounced against the plaintiff, which is claimed to be illegal on the premise, among others, that plaintiff was not promptly taken before a magistrate after his arrest.
We are cited to no authority holding that undue delay in taking a prisoner before a magistrate is of itself a denial of due process. It is only where the unwarranted delay has prejudiced the accused upon his trial that it may be said to violate the precepts of due process.
This court has held against the contention advanced here by the appellant. In Rutledge v. Hudspeth, 169 Kan. 243, 218 P. 2d 241, a proceeding in habeas corpus, it was argued that the petitioner was entitled to be released from the penitentiary because he had been confined in jail for five days before a warrant was read to him. In rejecting this contention, we said:
"... A petition for a writ of habeas corpus by one being under a sentence after a plea of guilty is a collateral attack upon that judgment. In order for such an attack to be successful it must be made to appear that the judgment is void. Such a judgment carries with it a presumption of validity. (See Miller v. Hudspeth, supra.) We considered an argument analogous to this in Wears v. Hudspeth, 167 Kan. 191, 205 P. 2d 1118. There a petitioner, who was held as a parole violator, asked for a writ and argued amongst other things that he was entitled to a writ because he was held prior to his delivery to the authorities at the penitentiary at a jail other than the one designated by the trial court. We said:
“ ‘Obviously this claim is wholly devoid of merit. Its short and simple answer is that such incarceration, which we pause to note is denied by respondent and merely supported by petitioner’s uncorroborated statement, has long since ended and its legality is not now subject to consideration in a habeas corpus proceeding.’
‘What would have been our action if we had been asked for a writ while petitioner was being held without a warrant we need not say. Without conceding there was anything unlawful about the five days’ incarceration without a warrant it may safely be said that such illegality does not render void the subsequent judgment of the trial court.” (pp. 244, 245.)
The foregoing passage from the Rutledge opinion was quoted with approval in Converse v. Hand, 185 Kan. 112, 114, 340 P. 2d 874.
Should it be suggested that the conclusion reached in the Rutledge case conflicts with the rule enunciated in McNabb v. United States, 318 U. S. 332, 87 L. Ed. 819, 63 S. Ct. 608, and followed in Mallory v. United States, 354 U. S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356, it would be sufficient to reply that this court has held the rule of those federal cases to be inapplicable in this jurisdiction. (State v. Stubbs, 195 Kan. 396, 407 P. 2d 215.) The reasons which prompted our refusal to follow the McNabb rule are adequately set forth in Stubbs and we continue to view those reasons as valid.
We would further point out, however, that in our judgment there is no basic contradiction between the rule expressed in McNabb and Mallory and the rationale of Rutledge. In both federal cases, the court held that incriminating statements were not admissible in evidence where they had been elicited from an accused during a period of illegal detention, in violation of Rule 5 (a), Federal Rules of Criminal Procedure. But in Rutledge no confession was involved; no confession was obtained from the defendant while he was wrongfully held in custody, nor was one introduced in evidence at the time he entered his plea of guilty. Thus, the cases are easily distinguished.
Neither was a confession involved in the criminal action against this appellant. He argues, only, that the failure to take him promptly before a magistrate vitiated per se the sentence thereafter imposed against him. We think this clearly is not the law.
In State v. Maldonado, 92 Ariz. 70, 373 P. 2d 583, the Supreme Court of Arizona pondered the effect of a 79-day delay before preliminary examination upon the defendant’s right to receive a fair trial, and said:
“The United States Supreme Court has stated that denial of due process ‘as applied to a criminal trial ... is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it . . . [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevent a fair trial.’ Lisenba v. California, 314 U. S. 219, 236, 62 S. Ct. 280, 290, 86 L. Ed. 166 (1941). Thus, unless the preliminary delay in some way deprives an accused of a fair trial there is no denial of due process of law. This is the rule in the federal, ... as well as in the state courts, [citing cases.]” (p. 76.)
In similar vein, the court in Fowler v. Hunter, 164 F. 2d 668, spoke as follows:
“The fact that petitioner was held for eleven days without being taken before a United States Commissioner on the charge of impersonating an investigator for the Committee on the Judiciary of the United States Senate could not affect the legality of the prosecution on the separate and distinct charges of the indictment upon which petitioner was tried and convicted. There was no proof that petitioner made any admissions or confessions, when the agents interrogated him with respect to the charge of impersonation, which were introduced in evidence or in anywise used against him in the trial on the charges laid in the indictment.” (p. 670.)
We find nothing in the record which taints the proceedings which were had when plaintiff was arraigned, entered his plea of guilty and was sentenced, or which suggests that he was then denied due process of law.
Neither can we agree that plaintiff’s constitutional right to a speedy trial was violated by reason of the delay in bringing him before a magistrate. The guaranty of speedy trial contained in Section 10 of the Bill of Rights of the Kansas Constitution has no reference to a preliminary examination, which is no trial in the ordinary sense (State v. Badders, 141 Kan. 683, 42 P. 2d 943), but rather it refers to a trial according to its true meaning, that is, the judicial hearing which follows indictment or information where the issue of guilt or innocence is determined. This is clearly implicit in our own cases on the subject (In re Trull, 133 Kan. 165, 298 Pac. 775), and we are cited to no contrary authority elsewhere. (See Shepherd v. United States, 163 F. 2d 974; 21 Am. Jur. 2d, Criminal Law, § 243, p. 280.)
Parenthetically, we may add that the guaranty of the right to speedy trial contained in the 6th Amendment to the Constitution of the United States has been held not to extend to state-court actions. (Phillips v. Nash, 311 F. 2d 513, cert. den. 374 U. S. 809, 10 L. Ed. 2d 1033, 83 S. Ct. 1700.)
It is pertinent to observe that in State v. Brockelman, 173 Kan. 469, 249 P. 2d 692, cited by appellant, the delay complained of did not relate to the preliminary examination, but to the trial of an appeal from a justice court conviction. The opinion furnishes no precedent to sustain the plaintiff’s position.
It is obvious there was no unconstitutional delay either in arraigning the plaintiff or in pronouncing sentence on his plea of guilty. In this state, what constitutes a speedy trial has been legislatively defined (State v. Williams, 187 Kan. 629, 360 P. 2d 11). Both K. S. A. 62-1431 and K. S. A. 62-1432 are designed to carry into effect the constitutional guaranty of expeditious trial. The first statute provides, in substance, that where a person who is held in jail has not been brought to trial before the end of the second term of court after he was indicted or informed against, he is entitled to be discharged (with exceptions not here material). The lapse of 52 days between the date of plaintiff’s arrest and the date he was sentenced is well within the limits set out in the statute.
Furthermore, when the appellant entered his plea of guilty to the charge against him, he waived whatever right he possessed to a speedy trial. (Moore v. Hand, 187 Kan. 260, 356 P. 2d 809; Moore v. Crouse, 191 Kan. 323, 380 P. 2d 373.)
The appellant next contends that failure to appoint a lawyer to represent him at the preliminary hearing denied him his constitutional right to counsel. This argument has been before us so often that it is fast becoming threadbare. Nevertheless, we are disposed to distill, once more, the essence of our many holdings on this subject: (1) Under our practice the purpose of a preliminary examination for one accused of a felony is to determine whether an offense has been committed, and whether there is probable cause to charge the accused with its commission; (2) the preliminary examination held pursuant to our statutes does not constitute a trial in its com mon, ordinary sense; (3) an accused has no constitutional right to be provided with counsel at his preliminary hearing; and (4) in the absence of a showing that the substantial rights of an accused have been prejudiced by lack of counsel at the preliminary examination, the failure to furnish counsel thereat does not constitute reversible error. (State v. Daegele, 193 Kan. 314, 393 P. 2d 978, cert. den. 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686; State v. Jordan, 193 Kan. 664, 396 P. 2d 342, cert. den. 380 U. S. 920, 13 L. Ed. 2d 805, 85 S. Ct. 917; State v. Cox, 193 Kan. 571, 396 P. 2d 326, cert. den. 380 U. S. 982, 14 L. Ed. 2d 276, 85 S. Ct. 1350.) Many more decisions of like import could be cited, but they would merely prolong this opinion without adding to its wisdom.
We have carefully examined the record and do not find the slightest indication of prejudice to plaintiff’s rights resulting from lack of counsel at the preliminary hearing. His claim of error in such regard is wholly without merit.
Finally, the plaintiff asserts that while he was in jail he was not permitted to consult an attorney before he appeared in county court. We believe it elementary that one accused of crime is entitled to secure and to confer with counsel of his own choosing prior to a legal hearing. Furthermore, under the provisions of K. S. A. 62-615, any person accused of felony may be assisted by counsel at his preliminary examination. (State v. Talbert, 195 Kan. 149, 402 P. 2d 810, cert. den. 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143.)
However, the foregoing rule can be of no comfort to this plaintiff for he faffed to establish that he was refused permission to consult counsel. An evidentiary hearing was held on plaintiff’s motion under 60-1507, at which he appeared personally and by counsel, and where he testified at length. Seven witnesses were called by and testified on behalf of the plaintiff, but not one of them corroborated his allegation that he was refused permission to call a lawyer. The plaintiff’s own personal testimony was flatly contradicted by testimony given by the sheriff.
After the hearing was concluded, the district court found that plaintiff’s testimony had not been corroborated. Under Rule No. 121 (g) of this court, the uncorroborated statements of a movant are insufficient to sustain his burden of proof. The trial court’s finding that corroboration was lacking is amply supported by the record, and may not be disturbed on this appeal.
No prejudicial error is shown to have been committed and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action by adjacent property owners to enjoin the city of Lawrence from narrowing, vacating or otherwise reducing the present paved width of a street.
The trial court held that the city should be enjoined until such time as it acquired the interest of the plaintiffs therein by purchase or through appropriate eminent domain proceedings.
Both sides have appealed.
The facts material for disposition of the case are not in dispute. Iowa Street is a principal north-south street in the west part of Lawrence. Because of its location, its connection with the Kansas Turnpike, and its designation as a federal highway — traffic is very heavy. Highland Drive is a north-south street one block east of Iowa. They are connected by Ninth Street, an east-west street, which, between Iowa and Highland, is paved to a width of 31 feet. A traffic problem was created because of the existence of a shopping center on the west side of Iowa which blocked the extension of Ninth straight across and on west of Iowa from the point where Ninth enters Iowa from the east, as a result of which the extension of Ninth to the west of Iowa was constructed at a point approximately 130 feet north of the point where Ninth enters Iowa from the east. In other words, west bound traffic on Ninth must turn north on Iowa and go about 130 feet and then make a left turn in order to proceed west on Ninth — and of course just the reverse is true of traffic approaching Iowa from the west on Ninth desiring to continue east on Ninth.
Plaintiffs own the lots just east of Iowa on the south side of Ninth, and a gas service station is located thereon. The APCO Oil Company owns the lots just east of Iowa on the north side of Ninth, and operates a gas service station thereon.
In order to promote the public safety and to eliminate the serious traffic hazard created by the “jog” in Ninth, the city, through appropriate resolutions and ordinances, proposed to reroute Ninth from its intersection with Highland so that it would angle to the north and west and intersect the east side of Iowa directly across from the extension of Ninth west of Iowa. The proposal also included control of the new intersection of Ninth and Iowa by traffic lights, to narrow the width of Ninth to 17 feet from Iowa to Highland by moving the north curb line of Ninth to the south a sufficient distance to accomplish the same, and to make such narrowed portion of Ninth a one-way street east. The plan was submitted to and approved by the traffic and safety department of the State Highway Commission.
Plaintiffs brought this action alleging that defendant city had entered into an unlawful agreement with the APCO Oil Company concerning the proposed change in the street, that the city had no power to enter into an agreement with a private individual or corporation to narrow or vacate a public street for a consideration; that it had no power to narrow or vacate a public street for the benefit of a private individual or corporation; that it had no power to narrow a street, and that it had no power to narrow or vacate a public street where such narrowing or vacation will cause irreparable damage to an abutting landowner. The prayer was that the city be enjoined from narrowing, vacating or otherwise reducing the present paved width of Ninth Street between Iowa Street and Highland Drive, and for such other relief as may be just and equitable.
The answer denied generally, and alleged that die ordinances in question were passed to remove a traffic hazard and that such action by the city was taken in the public interest and was a legitimate exercise of its police power.
The reply denied generally, and prayed that the particular ordinances in question be declared null and void and that the city be enjoined from carrying out the proposal, and asked for the full relief prayed for in the petition.
Following a full hearing the trial court filed a detailed memorandum in the nature of findings of fact and conclusions of law.
Conclusion No. 1 was that if the entire width of the pavement on Ninth between Iowa and Highland were to be vacated it would revert to plaintiffs and APCO each to the center of the right-of-way upon which such pavement was laid, but that each of said abutting owners had a vested interest in the entire width of Ninth and each had the right to use such full width as a means of access to and from the property of each.
Conclusion No. 2 was that although the city had the right to narrow Ninth by the vacation of the contemplated portion of its width on the north side thereof, such right may not be exercised and plaintiffs’ interest therein could not be taken until the same shall have been acquired by the city by purchase or through appropriate eminent domain proceedings, and until such right was so acquired the city should be enjoined.
Conclusion No. 3 was that the city, through its police power and without compensation to the owners of the property abutting thereon, may make a one-way street out of the portion of Ninth between Iowa and Highland and may eliminate the right turn lane which was added in 1961 to the pavement which prior thereto had a width of 31 feet.
The journal entry of judgment closed with the following:
“It Is Therefore Considered, Ordered, Adjudged and Decreed that the Defendant be and is hereby enjoined from narrowing 9th Street between Iowa Street and Highland Drive in the City of Lawrence, Kansas, until such time as the Defendant shall acquire the vested interest of the Plaintiffs therein taken by purchase or through appropriate eminent domain proceedings; except that the Defendant may make said portion of 9th Street a one-way street, remove the right turn lane on the north side thereof and narrow 9th Street where one-way eastbound traffic will exit into the intersection of rerouted 9th Street and Highland Drive in order to prevent westbound traffic from entering such eastbound one-way traffic street without compensating Plaintiffs therefor.”
The city appeals from that portion of the judgment enjoining it from proceeding with the improvement.
Plaintiffs cross-appeal from that part of the judgment holding that the city has the power and right to narrow Ninth Street between Iowa Street and Highland Drive.
Despite the various contentions made we believe there are only two questions in the case.
The first is whether the city has the power and authority to carry out the proposal heretofore described, and secondly, if it does — whether it must acquire the interest of plaintiffs in the street by purchase or condemnation before proceeding with the improvement.
Plaintiffs argue there is no express statutory authority for a city to narrow a street; that the power given to vacate a portion of a street refers to a portion of its length rather than to a portion of its width; that the city does not have the right to narrow the street by vacation of part of its width when such vacation results in damage to an abutting landowner; that if the city were to vacate any portion of Ninth Street the portion so vacated would revert solely to plaintiffs; that because the city entered into an improper agreement with APCO it should not be permitted to narrow or vacate the street in question, and that if it should be found the city does have the power and right to narrow Ninth Street it should be enjoined from so doing until such time as plaintiffs’ interest in the street is acquired through purchase or appropriate eminent domain proceedings.
The city of course contends that it has the power to narrow or reduce the paved portion of Ninth Street in carrying out the proposed improvement, that if plaintiffs are in any way damaged thereby their remedy is an action for damages, and that it was erroneously enjoined from going ahead until plaintiffs’ interest in the street, if any, was acquired through purchase or condemnation.
K. S. A. 13-401 provides that the governing body of a city of the first class—
“. . . shall have power to enact ordinances for all the purposes named and provided for in this article. . . .”
K. S. A. 13-443 authorizes and empowers a city of the first class—
“To open, widen, extend or otherwise improve any street, avenue, alley or lane, and also to vacate and close any street, avenue, alley or lane or portion thereof: Provided, That before the governing body shall open, widen or extend any street, avenue, alley or lane it shall proceed to condemn or acquire by purchase or gift the necessary lands as provided by law.”
Here the city is not opening, widening or extending the street— in which case the statute says that before so doing it shall acquire the necessary land by condemnation, purchase or gift. It proposes to narrow, vacate or otherwise reduce the present paved width of the street. In 25 Am. Jur., Highways, § 118, at p. 416, it is said that the power to vacate streets is generally held to give a municipality power to vacate a part of a street, as, for example, to vacate a strip on each side of it for the purpose of narrowing it.
It is clear that the city has the power and authority to carry out the proposal in question and the trial court was correct in so concluding.
The court erred, however, in holding that the city should be enjoined from proceeding until it has acquired the interest of plaintiffs in the street through purchase or condemnation. Although strictly speaking, this is not a so-called “access” case, we note that the court relied somewhat on Atkinson v. State Highway Commission, 184 Kan. 658, 339 P. 2d 334, as authority for enjoining the city. In fairness to the trial court it should be stated that subsequent to its decision the rule of the Atkinson case was by this court overruled in Brock v. State Highway Commission, 195 Kan. 361, 404 P. 2d 934 (August 19, 1965). If, in the carrying out of the proposal in this case plaintiffs suffer any damage to their property, they have an adequate remedy at law — an action for damages. (See Syl. 2 of the Brock case, and Bolmar v. City of Topeka, 122 Kan. 272, 252 Pac. 229; Kinney v. Reno Community High School, 130 Kan. 610, 613, 287 Pac. 258).
We express no opinion on other matters touched on by the trial court in its decision and which are argued in the briefs — for we believe them to be outside the narrow issues presented by the case. The extent of our holding is (1) that the city is authorized and empowered to carry out the proposal in question and (2) if plaintiffs suffer any damage to their property their remedy is by an independent action for damages — rather than by injunction.
The judgment granting injunctive relief against the city is therefore reversed. | [
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The opinion of the court was delivered by
Price, J.:
Plaintiff, a pedestrian at the time, while crossing a highway, was struck by a car driven by defendant. He brought this action to recover for his personal injuries. The jury found for defendant. Plaintiff’s motions to set aside the verdict and for a new trial were overruled and judgment was entered for defendant. Plaintiff has appealed.
Plaintiff was a resident of Emporia and was a dealer in horses. On a Sunday morning in February, he drove to Madison where he met Martin Hoobler. They drove then respective vehicles back to a point just west of Emporia where plaintiff had a horse-lot. They arrived there about 10 o’clock in the morning. Plaintiff parked his car partly on the right (north) shoulder of the east-west highway. Hoobler parked his truck 19.5 feet behind plaintiff’s car in the same relative position. The highway was blacktop and was 24 feet wide. It was a cold day but the weather was clear and the highway dry. There was nothing to obstruct vision for a considerable distance in either direction. The point where they stopped was in “open country” and was just opposite plaintiff’s horse-lot. They removed a horse from Hoobler’s truck and took it across the highway (south) to the horse-lot. They then brought another horse from the lot and put it in Hoobler’s truck. Their business being transacted, Hoobler got into his truck and started the motor. He turned on his left-turn signal light, which was visible from the rear, to indicate that he was intending to pull out into the highway.
At about this time defendant was approaching from the east, and he noticed the two vehicles parked partly on and partly off the right side of the highway. He also noticed Hoobler’s left signal light, and in order to safely clear the Hoobler truck he pulled to the left into the east-bound traffic lane in order to pass. Just as defendant’s car was a short distance behind the Hoobler truck plaintiff took a pitchfork from his car and started to run south across the highway from a point right in front of the Hoobler truck. Prior to this, defendant’s vision of plaintiff was completely blocked by the Hoobler truck. Defendant applied his brakes and sounded his horn, but plaintiff apparently “froze in his tracks.” Defendant’s car struck plaintiff in the east-bound traffic lane.
Plaintiff’s petition contained the usual allegations of negligence common to actions of this type. On the morning of the opening day of trial plaintiff orally moved the court for an order granting him leave to change the theory of his action so as to include both ordinary negligence and ‘last clear chance.” Over defendant’s objection the motion was allowed.
The court ruled that plaintiff’s evidence showed plaintiff to be guilty of negligence as a matter of law but further ruled that the case should be submitted to the jury on plaintiff’s theory of last clear chance.
Accordingly, and over defendant’s objection, the court gave the following instruction:
“No. 3
“You are instructed that under the evidence introduced in this case plaintiff was negligent as a matter of law and such negligence on his part was a contributing cause of his damages. Ordinarily this bars his recovery, but you may find for the plaintiff under the doctrine of last clear chance,’ if you find that he has sustained the burden of proof to your satisfaction of each and all of the following propositions:
“1. That plaintiff, by his own negligence, placed himself in a position of peril from which he was unable to extricate himself;
“2. That defendant, seeing the plaintiff in a position of peril, or by the exercise of ordinary care should have seen plaintiff’s position, and by the exercise of ordinary care had the last clear chance to avoid striking the plaintiff;
“3. That defendant was negligent in that he failed to exercise ordinary-care;
“4. That defendant’s negligence was the proximate cause of plaintiff’s injuries and resulting damages.”
The jury returned a general verdict for defendant and made special findings as follow:
“Special Questions
“Question 1. Was the defendant guilty of any one or more acts of negligence which was a proximate cause of the plaintiff’s injuries or damages?
“Answer. No.
“Question 2. Did the plaintiff reach a position of peril prior to the impact from which he could no longer extricate himself by his use of ordinary care?
“Answer. Yes.
“Question 3. Did the defendant use due care to avoid the accident subsequent to the time he either saw the plaintiff, or in the exercise of ordinary care should have seen the plaintiff in his position of peril from which plaintiff could not extricate himself?
“Answer. Yes.”
In this appeal plaintiff first contends the trial court erred in refusing to give requested instructions and further erred in those given over his objection, particularly with respect to instruction No. 3 above quoted, in which the jury was told that under the evidence plaintiff was guilty of contributory negligence as a matter of law, but notwithstanding, could still recover under the theory of “last clear chance.”
Plaintiff’s contention as to objection on his part is directly refuted by the record which shows:
“Instructions were discussed informally in chambers April 9, 1965 until the hour of adjournment. Arguments over various instructions were presented, and some instructions were changed over the weekend. Counsel met in chambers again April 13, 1965 prior to the time the jury was instructed, at which time the court presented the final form of the instruction^] to counsel. At that time, the only objection to the instruction[s] was made by defendant, who objected to given [giving] instruction number 3, pertaining to last clear chance. No other objections were made at that time.”
K. S. A. 60-251 (fe) reads:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.”
The statute is in harmony with the general rule (Miller v. Kruggel, 165 Kan. 435, 439, 195 P. 2d 597). It was on plaintiff’s motion that the last clear chance theory was submitted to the jury. Under the evidence and the law the instruction was not only not “clearly erroneous” — but was proper. Plaintiff, by failure to make timely objection, is now in no position to complain. Furthermore, if the matter were properly before us — special finding No. 1 above, in which the jury specifically found that defendant was not guilty of “any one or more acts of negligence which was a proximate cause of the plaintiffs injuries” — renders the matter now moot. By that finding defendant was completely absolved of any actionable negligence — either before or after plaintiff placed himself in a position of peril.
Some contention is made concerning the testimony of a member of the state highway patrol as to his opinion of the speéd of defendant’s car — and of the witness Hoobler. The contention is without merit and requires no discussion.
During the course of the trial the jury was sent to the scene of the accident in custody of the bailiff. Complaint is made as to what is alleged to have transpired during such visit. The contention is not borne out by the record and cannot be sustained.
Finally, it is argued that the verdict is contrary to the evidence. This contention likewise is without merit. The evidence discloses a situation in which plaintiff darted out across an open highway from behind a truck which prevented the driver of an approaching car from seeing him. The jury simply exonerated defendant of all negligence. Nothing in the record indicates that a fair trial was not had. The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.
This is an appeal from an order denying the motion of appellant for discharge from the Kansas State Penitentiary. The appellant will be referred to as petitioner.
In April 1963 a complaint was filed in Shawnee county charging petitioner with robbery in the first degree (K. S. A. 21-527). The petitioner was confined in the Kansas State Penitentiary pursuant to felony convictions in Kingman and Sedgwick counties.
On April 8,1964, petitioner filed an application under the Uniform Mandatory Disposition of Detainers Act (K. S. A. 62- 2901 et seq.) in the district court of Shawnee county. In the application petitioner stated, inter alia, that one Edgar F. Whiteaker had been committed to the Kansas State Penitentiary to a term of “15 and 15 years flat”; that he had served nine months and eleven days on the sentences, leaving a balance of fourteen years, two months and fourteen days still to serve.
Pursuant to his application the petitioner was returned to Shawnee county. On May 15, 1964, petitioner appeared before the district court, with counsel, and entered a plea of guilty to robbery in the first degree. A sentence of not less than fifteen years was imposed under K. S. A. 21-530 and K. S. A. 21-107a. The court further ordered the sentence to run concurrently with sentences petitioner was then serving in the Kansas State Penitentiary.
On February 24, 1965, the petitioner filed, pro se a hand written petition for a writ of habeas corpus in the sentencing court. The petition was considered by the district court as a motion attacking sentence pursuant to K. S. A. 60-1507. The court examined the petition and the files and records of the case in which petitioner was convicted.
On April 8, 1965, the district court made findings and conclusions of law and entered an order denying the motion of petitioner. The district court found the motion of petitioner and the files and records of the conviction conclusively showed that petitioner was not entitled to relief.
On May 4, 1965, on motion of petitioner, present counsel was appointed by the district court and this appeal was duly perfected.
On oral argument before this court it was brought out that petitioner was presently serving two unexpired sentences other than the sentence under attack in this proceeding. Upon questioning by the court it was conceded by defendant’s counsel that such was the case. This circumstance was indicated in petitioner’s application under the Uniform Mandatory Disposition of Detainers Act and also in the findings of the district court as set out in the record on appeal. In its findings of fact filed in this proceeding the district court sets out the colloquy on allocution between the court, the county attorney, Mr. Brown, the petitioner and his counsel, Mr. Manzanares, a part of which is quoted here:
“Mr. Brown: Did you want to tell the Court about the previous felonies?
“Mr. Whiteaicer: Yes, sir. I was convicted of robbery — armed robbery in Sedgwick county, armed robbery in Kingman county, armed robbery Garvin county, Oklahoma, and armed robbery Dallas City, Texas.
“The Court: You have four previous felony convictions?
“Mr. Whiteaker: Yes, sir.
“Mr. Brown: And we have no objection, Your Honor, to imposition of the Habitual Criminal Act.
“Mr. Manzanares: To run concurrently.
“Mr. Brown: To run concurrently with the rest of the sentences he is now serving.
“Mr. Whiteaker: If I may have permission, I would like to add I am presently serving 50 years in Oklahoma, I have a detainer on me for that amount of time; presently serving 55 years in the State of Texas for which I have a detainer on me at this time so the Court can see at my age I have not too much opportunity.”
After the information regarding other sentences was developed on oral argument, counsel for appellee directed an oral motion to this court that the appeal be dismissed on the grounds that even though, petitioner were successful in this proceeding he would still be confined under the other sentences.
The identical situation was before this court in the recent case of King v. State, 195 Kan. 736, 408 P. 2d 599, where, after quoting applicable provisions of K. S. A. 60-1507 and Rule No. 121 of this court, adopted October 16, 1964, set out in 194 Kan. xxvii, this court said:
“The foregoing language is plain and explicit. We believe it requires neither clarification nor interpretation. The express terms of the rule preclude the petitioner from maintaining this action at this time. No matter what our conclusion might be on the merits of the contentions advanced by petitioner in his motion, he would not be released from prison, for he still would be confined under other sentences whose validity is not involved in this case.” (pp. 737, 738.)
In the King case (opinion filed December 11, 1965) the background and applicability of the rule in both Kansas and federal jurisdictions were thoroughly discussed. We adhere to the rule so recently announced in the King opinion. Repetition at this early date would serve no useful purpose.
We affirm the judgment of the lower court denying petitioners motion and remand this case with directions to dismiss the same. | [
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The opinion of the court was delivered by
Price, J.:
Petitioner, Oscar Case, is confined in the state penitentiary under sentences imposed by the district court of Mitchell county.
This appeal is from an order denying his motion for relief under the provisions of K. S. A. 60-1507.
On August 15, 1962, a complaint was filed in the county court of Mitchell county charging petitioner with the offense of forgery in the second degree. A warrant was issued forthwith. Petitioner was apprehended on April 17, 1963. On May 16, 1963, he was brought before the county court and an attorney, Harry W. Gantenbein, was appointed to represent him. A preliminary examination was waived and he was bound over to the district court for trial.
On May 24, 1963, petitioner and his court appointed attorney appeared in the district court. Formal arraignment was waived and petitioner entered his plea of guilty to the charge of forgery in the second degree. The court questioned him at length concerning the commission of the offense and as to whether his plea of guilty was made voluntarily. Petitioner then made oral application for a parole and testified in support of such application. The court announced that it would defer sentence and a ruling on the application for parole pending a report from the State Reception and Diagnostic Center, and petitioner was committed to that institution for examination and evaluation.
On July 27, 1963, it was ordered that petitioner be returned to the district court for sentencing, and on September 12, 1963, he and his court-appointed attorney appeared in court. The application for parole was denied and he was sentenced to confinement in the state penitentiary as provided by law. It was further ordered that he be given credit for the time spent in the county jail and at the State Reception and Diagnostic Center — a total of 148 days.
On September 17, 1963, while confined in the county jail awaiting transportation to the penitentiary, petitioner broke jail and escaped. In the process he assaulted and robbed the sheriff and undersheriff and stole an automobile. He was shortly apprehended and a complaint was filed charging him with six offenses — two counts of assault with a deadly weapon with intent to commit a felony, two counts of robbery in the first degree, breaking custody and escaping from the county jail, and larceny of an automobile.
On September 20, 1963, petitioner appeared in the county court of Mitchell county with his court-appointed attorney, Mr. Gantenbein. A preliminary examination was waived and he was bound over to the district court on each of the six charges against him.
On September 27, 1963, petitioner and his court-appointed attorney appeared in the district court. Formal arraignment was waived and petitioner entered his plea of guilty to each of the six charges. The court questioned him at length as to whether his plea of guilty was made voluntarily and, being assured that it was, petitioner was sentenced to confinement in the penitentiary on each of the charges.
No appeal was taken in either of the cases.
On December 3, 1964, petitioner filed a motion on the prescribed form (see 194 Kan. xxvm) for relief under the provisions of K. S. A. 60-1507. Among other things, he alleged there had been unnecessary delay in his arraignment, that he had been denied the right to bail, that he had been sent to the State Reception and Diagnostic Center, that he had been sent to the penitentiary without a valid commitment, that he had not been furnished a copy of the charges, that his attorney refused to represent him if he pleaded not guilty, and that his plea of guilty was made with the understanding that he would be granted a parole.
The district court considered petitioner’s motion as being directed to both of the above mentioned cases, and on January 11, 1965, filed its memorandum denying relief. This memorandum recited in chronological order the facts and details of each of the cases, and the court ruled that an examination of the motion and the files and records of both cases showed conclusively that petitioner was entitled to no relief.
Petitioner appealed from that order and present counsel was appointed to represent him in the appeal.
Only one contention is made — that the court erred in not vacating the convictions and sentences on the ground that petitioner was not fully and adequately advised of his constitutional rights at the time of his arraignment and pleas of guilty. In this connection it also is argued that in the forgery case he was not represented by counsel between the date of his arrest (April 17,1963) and the date he was first brought before the county court (May 16, 1963), and therefore he was “denied the assistance of counsel” in violation of his constitutional rights.
The contention is completely without merit — and the same is true of other matters mentioned in petitioner’s motion but which are not urged in this appeal.
Petitioner was represented by counsel in both cases at the preliminary examination stage and in the district court. The record also shows that before sentence in each case the court inquired in detail as to whether his plea of guilty was understandingly and voluntarily made. Matters raised in petitioner’s motion did not require that an evidentiary hearing be held. The court was entirely correct in finding and concluding that an examination of the motion and the files and records of the two cases showed conclusively that petitioner was entitled to no relief under K. S. A. 60-1507.
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The opinion of the court was delivered by
Kaul, J.:
Our opinion in this case was filed December 11, 1965, and is reported in Sanders v. State, 195 Kan. 701, 408 P. 2d 587.
The appellant has filed a motion for rehearing. The motion has been considered and is hereby denied.
The appellee has filed a motion to delete paragraph 2 of the syllabus and the corresponding portion of the opinion. Upon consideration of this motion it is by the court sustained.
It is therefore ordered that paragraph 2 of tibe syllabus and the corresponding portion of the opinion are hereby deleted and withdrawn. The decision is adhered to in all otiher respects. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal is from an order of the district court of Sedgwick County, overruling the appellant’s motion to vacate and set aside the sentences imposed by that court on September 16,1963. Relief was sought under the provisions of K. S. A. 60-1507 and Rule No. 121 of this court (194 Kan. xxvn).
The appellant, Paul Irving McCall, will be designated in this opinion as the petitioner.
Proceedings had in the district court of Sedgwick County giving rise to this appeal are summarized: On July 15, 1963, the petitioner entered his voluntary plea of guilty to the charge of violating the worthless check statute (G. S. 1949, 21-554), and was sentenced to confinement in the Kansas State Penitentiary for a period of not less than one nor more than five years pursuant to G. S. 1949, 21-555. On that date, the petitioner made application for probation from service of the sentence, and the district court continued the cause until July 19, 1963. On that date, and after argument by counsel, the court denied the petitioner’s motion and ordered him to serve the sentence imposed.
On July 21, 1963, while awaiting transportation to the state penitentiary, the petitioner and another inmate escaped from the Sedg wick County jail by attacking the jailor with a knife and taking the jail keys from him.
On July 22, 1963, a complaint was filed in the Court of Common Pleas of Sedgwick County, charging petitioner in four separate counts: robbery in the first degree; felonious assault; jail breaking, and willful and malicious destruction of public property. James Foster, a member of the Sedgwick County Bar, was appointed to represent petitioner at his preliminary examination. On August 22, 1963, the petitioner waived his right to have a preliminary examination, and was bound over for trial in the district court to answer the charges alleged against him, and, in default of a $20,000 bond, he was committed to the Sedgwick County jail.
An information was duly filed in the district court charging the petitioner with the offenses heretofore related, and James Foster was reappointed to represent him.
On September 16, 1963, petitioner and his counsel personally appeared before the court, waived arraignment, and petitioner entered his plea of guilty to each of the four counts contained in the Information. The record indicates the court inquired of the defendant if he pleaded guilty to said charge because he was guilty, and the defendant answered in the affirmative. Sentence was imposed in accordance with law, and the court directed that all sentences in Counts 1 through 4 run concurrent with each other, and concurrently with the sentence imposed for violation of the worthless check statute on July 15, 1963. No appeal was taken from the foregoing judgment and sentences.
On a date not disclosed by the record, the petitioner applied to the district court for post conviction relief (K. S. A. 60-1507), alleging the inadequacy of his counsel for the reason that counsel was appointed only minutes prior to the entry of petitioner’s pleas of guilty. On September 29, 1964, the district court heard and determined adversely to petitioner the grounds alleged for relief, and no appeal was taken from that judgment.
The proceedings out of which this appeal arises were commenced on February 23, 1965, by petitioner filing his motion to vacate and set aside the sentences imposed on September 16, 1963. In his answer to question No. 10 in the form of the motion prescribed in Rule No. 121, the petitioner alleged as grounds for relief that (1) there was insufficient evidence to support the charges against him; (2) the sentence of robbery in the first degree was illegal and the other sentences imposed for his escape from jail were imposed under duress, threats and promises (which the petitioner supplemented on a separate sheet), and (3) he was not represented by adequate counsel, “nor do I believe that he was competent counsel, counsel was appointed only minutes prior to plea of guilty.”
In the separate sheet referred to in the motion and attached to it, the petitioner elaborated further by stating he was placed on the fifth floor of the Sedgwick County jail without clothing, mattresses or blankets, with the wind blowing through the door, and as a result he was unable to sleep and was forced to walk the floor to keep warm, and that under duress, he signed a statement concerning his escape; he further stated he was threatened with two fifteen-year-to-life sentences if he did not enter a plea of guilty. Incorporated in the separate sheet was what the petitioner claimed to be an exact copy of a letter he received from James Foster, dated October 15, 1964, which reads:
“Dear Paul:
“I received your letter of October 8, 1964, and to say the least, I was very disappointed in the contents of that letter.
“As you know, at the time I took on the defense of your cases, you had been sentenced one to five for violation of check law at Lansing, Kansas.
“While awaiting transportation to Lansing, Kansas, my file reflects that you and another gentleman over-powered a Jailor, took his keys and attempted to leave the jail.
“As you undoubtedly remember, this involved the Crime of Armed Robbery, which carries with it a sentence of ten to twenty-one years, the crime of escape which carries a term of not more than three years and felonious assault which carries a one to ten year sentence. Also, this was your second, third and fourth felony.
“I told you, and I recall very distinctly telling you this, that the County Attorney had told me that should we attempt to try these cases, that your transcript of Convictions would be presented to the Judge, and that on the third and fourth conviction the Judge would have no latemative [sic] but to sentence you to not more than a life sentence and not less than fifteen years in the penitentiary.
“The Judge has absolutely no discretion on the minimum sentence as the statute specifically provides that it must be at least fifteen years and may be as much as life sentence. Consequently, the charges against you could have been run consecutive and you could have received a one to five, and after you served that you could have started serving a twenty to forty-two and after you served that you could have started serving a fifteen to life and after you served that you could have served another fifteen to life.
“I am sure that the Judge would not have sentenced you to all this, but I am also satisfied that if we would have tried the case and lost it you would have been sentenced to fifteen years to life imprisonment.
“If you recall, the evidence against you on the Jail break was overwhelming. There were many eye witnesses as well as all the inmates, of the County Jail that you told the story of your Jail break to. This was an impossible case to defend and I am satisfied that on the ten to twenty-one year sentence that you did receive that you got off very, very, easy.
“You are perfectly free to file any habeas corpus action you should like but you will not be accomplishing anything and I cannot help but feel you will be placing your chances for an early Parole in Jeopardy.”
On June 29, 1965, the district court held no evidentiary hearing, but made findings of fact and conclusions of law, finding that the petitioner had raised no substantial question of law or fact; that it was unnecessary to appoint counsel to represent the petitioner; that the petitioner sought relief based upon his uncorroborated statements; that he was presently serving valid sentences of the district court of Sedgwick County; that the petitioner was entitled to no relief, and concluded his motion should be denied.
Turning to the points raised, the petitioner argues the district court erred in overruling his motion to set aside the sentences without requiring his personal presence in court and without having appointed counsel to represent him. He contends that if he had been permitted to be present to testify, he could have given testimony that there was insufficient evidence to support the charges against him and that the charges against him were untrue. With respect to the petitioner’s contention that there was insufficient evidence to support the charges against him, it is apparent that, in view of the record, no justiciable issue is presented. The record clearly indicates that the petitioner pleaded guilty in open court in the presence of his court-appointed counsel to the four counts alleged in the Information “because he was guilty.” While it is fundamental that a plea of guilty, in order to be valid, must be freely, knowingly and understandingly made,' it was said in Dexter v. Crouse, 192 Kan. 151, 386 P. 2d 263, that:
“It has long been the law of this state that once a plea of guilty has been voluntarily entered by a defendant in a criminal action there is absolutely no need to introduce any evidence to maintain a conviction. (Berger v. Hand, 190 Kan. 220, 221, 373 P. 2d 175; Peavy v. Hand, 184 Kan. 182, 334 P. 2d 369; Carrier v. Hand, 183 Kan. 350, 351, 327 P. 2d 895; Darling v. Hoffman, 180 Kan. 137, 138, 299 P. 2d 594.)
“Moreover, this court has repeatedly held that a defendant’s voluntary plea of guilty in a criminal case is a confession of guilt of the crime charged and of every fact alleged in the charge, and that, legally speaking, it is the most formal and binding confession possible for him to make. (See, e. g., State v. [Fred E.] Dexter, 191 Kan. 577, 580, 382 P. 2d 462: State v. Downs, 185 Kan. 168, 170, 341 P. 2d 957; State v. Nichols, 167 Kan. 565, 577, 207 P. 2d 469.)
“What has just been stated and held is sufficient to establish that appellant’s first contention lacks merit and cannot be upheld.
“Further support for the conclusion just announced is to be found in Miller v. Hudspeth, 164 Kan. 688, 708, Syl. ¶[ 9, 192 P. 2d 147, holding that where a plea of guilty has been entered there can be no review of the sufficiency of evidence to support the judgment of conviction. See, also, Crisp v. Hudspeth, 162 Kan. 567, 178 P. 2d 228.” (1. c. 152, 153.)
The petitioner next contends that he was not represented by adequate counsel and that counsel was appointed only minutes prior to his pleas of quilty. In denying the motion, the district court found:
“The Court further finds that the movant has presented to this court previously the issue of inadequacy of counsel which was decided adversely to the movant on September 29, 1964 and from which no appeal was taken.”
In Perrin v. State, 196 Kan. 228, 410 P. 2d 298, the same contention was made where the petitioner filed a motion to set aside his sentence, raising a point which was determined on the merits adversely to his contention, and the point was again raised in a second or successive motion for similar relief. In the opinion it was said:
“. . . That point was specifically raised in the petitioner’s first motion and was determined on the merits adversely to his contention. No appeal was taken from that judgment and it became final. The rightness or wrongness of the district court’s decision on that point may not now be inquired into. (K. S. A. 60-1507, Rule No. 121 [d], [1] and [2].)” (1. c. 233.)
See, also, Smith v. State, 195 Kan. 745, 408 P. 2d 647, and Hanes v. State, 196 Kan. 409, 411 P. 2d 646.
The foregoing would seem to dispose of the contention. However, we note Mr. Foster was first appointed to represent the petitioner at his preliminary examination and was reappointed to represent him in the district court. The record discloses counsel conferred with petitioner prior to his entering pleas of guilty and they considered the alternative of standing trial with the possibility of an increased sentence under the Habitual Criminal Act, which the county attorney advised would be invoked if a trial were had and a conviction resulted. In Fields v. State, 195 Kan. 718, 408 P. 2d 674, the contention was made that petitioner was coerced into pleading guilty as a result of the county attorney’s statement he would press for a higher penalty if petitioner continued to fight the case. In the opinion it was said:
“. . . we observe that had petitioner’s attorney failed to advise him of a possibility of sentence under the Habitual Criminal Act, the petitioner would have added such failure as an additional ground in his petition.” (1. c. 720.)
The evidence against petitioner concerning the jail break was over whelming, and as a result of his court-appointed counsel’s efforts, the petitioner was not sentenced under the Habitual Criminal Act. Manifestly, there is absolutely nothing to support the petitioner’s allegations that his court-appointed counsel was incompetent or inadequately represented him in the district court.
The petitioner lastly contends the sentence of robbery in the first degree was illegal and the other sentences imposed for his escape from jail were imposed under duress, threats and promises. This contention is directed to statements made in the separate sheet attached to petitioner’s motion, that through coercion and duress he signed a statement concerning the events of his escape from jail. Assuming a statement was elicited from petitioner, of which we are not advised, it was not used against him in disposing of his case in the district court. In Call v. State, 195 Kan. 688, 408 P. 2d 668, a similar contention was made that a statement was obtained in violation of the petitioner’s constitutional right, and it was said:
“. . . In the first place, whatever the statement may have been which was elicited from Call — and we are not informed of its contents — it was not introduced or used against him in this case. Call entered a plea of guilty. Consequently, whether the statement would or would not have been admissible in evidence, were it offered in evidence at a trial, is entirely irrelevant.” (1. c. 690.)
We have fully reviewed the record and conclude the district court did not err in holding that the allegations of the petitioner’s motion did not allege a substantial claim for relief and that the files and records of the case conclusively showed the petitioner was not entitled to the relief sought. The statute (K. S. A. 60-1507) does not strip the district court of discretion to ascertain whether a claim for relief is substantial before granting a full evidentiary hearing. Under the circumstances which attend, the district court was not required to conduct a formal plenary hearing, or to appoint counsel, or have the petitioner present. In State v. Burnett, 194 Kan. 645, 400 P. 2d 971, it was held:
“Where a proceeding is brought under the provisions of K. S. A. 60-1507 and the files and records of the case conclusively show that the prisoner, or movant, is not entitled to relief, it is not required that a formal plenary hearing be had, or that counsel be appointed for the movant, or that the prisoner be produced for a hearing.” (Syl. f 1.)
See, also, Sanders v. State, 195 Kan. 701, 408 P. 2d 587; Call v. State, supra; Shores v. State, 195 Kan. 705, 408 P. 2d 608, and Webb v. State, 195 Kan. 728, 408 P. 2d 662.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
In the original decision and opinion of this court the judgment of the trial court in favor of the defendant was reversed and the cause remanded with instructions to vacate the judgment and overrule the demurrer to plaintiff’s evidence (155 Kan. 74, 122 P. 2d 763). The plaintiff having filed its motion for a rehearing and for final judgment in her favor on account of a stipulation between the parties filed in the district court, this court ordered a rehearing limited solely to whether judgment should be rendered on the stipulation.
In our original opinion brief reference is made to the stipulation. Omitting signatures of counsel, the entire stipulation reads:
“It is hereby stipulated by and between attorneys for plaintiff and defendant that at the second trial of this action a jury may be and is hereby waived.
“It is further stipulated by and between counsel for the parties that a transcript of the record of the trial of this action had before the Honorable J. T. Cooper at the October, 1940, term of the district court within and for Neosho county, Kansas, on the second day of December, 1940, commencing on page 1 of said transcript and ending at: ‘Mr. Evans: We stand on the demurrer,’ on page 58 of said transcript, together with the exhibits as identified in said record and pleadings, shall constitute all of the evidence and all of the proceedings taken at the retrial of this action, and that the case shall be submitted to the court upon the defendant’s demurrer to the plaintiff’s evidence as shown on pages 56 and 58 of the record.”
At the argument on rehearing we were advised the stipulation was prepared by the general counsel of the defendant corporation. While there is some dispute as to just what was intended, we are of opinion the stipulation is unambiguous. Under it a certain part of an identified transcript of a trial before the Honorable J. T. Cooper, with the exhibits and the pleadings “shall constitute all of the evidence and all of the proceedings taken at the retrial . . . and . . . the case shall be submitted . . . upon the defendant’s demurrer V
It will be observed that under the stipulation, trial by jury was waived. Taken in connection with other parts of the stipulation, this tends toward a conclusion the case was being finally submitted on a question of law. The affirmative provision is that the transcript and exhibits identified “shall constitute all of the evidence,” and that the case should, be submitted upon the defendant’s demurrer. The demurrer was the one referred to in the stipulation. There is no provision in the stipulation that if the demurrer be overruled, the defendant could offer any evidence in support of its affirmative defense, nor that in such case plaintiff could offer evidence in rebuttal. If the defendant desired the right to proceed further, if its demurrer were not sustained, the stipulation should have so provided. In our opinion, the parties agreed the case should be submitted on the stipulated evidence and the defendant’s demurrer thereto, and that the ruling on the demurrer should be final and decisive.
Our original opinion and decision is therefore modified to read as follows:
The ruling of the trial court on the demurrer and its judgment in favor of the defendant are reversed, and the cause is remanded with instructions to overrule the demurrer and to render judgment in favor of the plaintiff and against the defendant.
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The opinion of the court was delivered-by
Dawson, C. J.:
This is the second of two actions which were simultaneously begun in.the district court on June 29, 1939, to recover judgment against defendant on quantum meruit for attorneys’ services rendered in its behalf.
In the district court the two actions were given the numbers 103,897 and 103,900. The first of these actions proceeded to judgment and came to this court for review. (Todd v. Central Petroleum Co., 153 Kan. 550, 112 P. 2d 80.)
In the first case plaintiff sought to recover compensation for his services from the time his employment began in June, 1935, down to July 1,1937. In-the second case a recovery was sought for attorneys’ services for the period beginning July 1, 1937, until December 20,1937, when the litigation was concluded.
There had been but one contract of employment, which was between Arnold C. Todd, attorney at law, and the Central Petroleum Company, Inc. That employment was. to attend to defendant’s interest in a quiet-title action in the district court of Russell county and which was removed to the federal court and eventually lar ought to a successful conclusion in the United States circuit court of appeals on December 20, 1937.
The occasion or excuse for filing two actions for the services rendered pursuant to Todd’s contract of employment, whether sufficient or not, was because on July 1, 1937, Todd had formed a law partnership with one Ralph Gore; and the first action was for compensation for Todd’s services until the date of the formation of the partnership ; and the second action which was filed in the names of Todd and Gore, as partners, was for compensation rendered by the law partners from July 1, 1937, until the conclusion of the litigation.
By the time these two actions were begun, however, Gore haa become identified with the defendant corporation as stockholder and director. Dissolution of the partnership followed, and on mo tion of Todd the status of Gore in the seoond action was shifted from party plaintiff to party defendant by order of court. With the court’s permission plaintiff also amended his petition to allege the altered status of Gore and that he was a necessary but antagonistic party to the litigation.
Gore filed a motion to set aside the order changing his status from plaintiff to defendant and to strike the amendment to the petition. This motion was overruled. Gore next demurred to the petition and the amendment thereto as insufficient to constitute a cause of action or basis of relief against him. This demurrer was overruled.
On November 13, 1939, the defendant Central Petroleum Company, Inc., filed a motion in case No. 103,897 and likewise a motion in case No. 103,900 for an order requiring plaintiff to make each petition definite and certain in various particulars—to state whether the contract of employment was oral or in writing, and where and when defendant had refused to pay for Todd’s services, and other details needless to mention.
On December 9, 1939, both motions were overruled in part and sustained in part, following which on December 14, 1939, plaintiff filed amended petitions in both cases. Each of them alleged that on June 12, 1935, plaintiff Todd was employed as attorney by the defendant to represent, advise, counsel and defend it in a lawsuit then pending in the district court of Russell county, Kansas, to which lawsuit defendant had become successor in interest to an earlier corporation of about the same name; that said lawsuit was for specific performance of an agreement pertaining to an oil and gas lease and the drilling of oil and gas wells thereon; that said lawsuit was removed to the federal court and that plaintiff carried it through to a successful conclusion in the United States circuit court of appeals on December 20, 1937; that the value of the matters in controversy in that litigation had been approximately $150,000, and that the defendant corporation and-certain individual defendants associated in interest with it had profited to an amount greatly in excess of that figure. Eor his services in case No. 103,897, for a period of over two years down to July 1,1937, plaintiff prayed judgment for $10,000.
In case No. 103,900, plaintiff’s amended petition, like its contemporary, alleged the facts of plaintiff’s employment in the Russell county litigation which eventuated successfully for defendant in the United States circuit court of appeals; and alleged at some length the facts of the partnership of Todd and Gore through whose efforts the litigation had been conducted from the time they (Todd and Gore) took over' the defense of the action on July 1, 1937, until its conclusion, and that the reasonable value of plaintiff’s services was $5,000, for which sum judgment was prayed for.
On December 26, 1939, the defendant Central Petroleum Company, Inc., filed an answer to the merits in case No. 103,897, and likewise an answer to the merits in case No. 103,900. Those answers were identical except that in the first case, No. 103,897, there was a denial that the plaintiff’s services were worth $10,000, and in the second case, No. 103,900, there was a denial that the services were worth $5,000. In each answer there was a general denial—but continuing thus:
“3. This answering defendant denies that on or about the 12th day of June, 1935, or at any other time, it or its predecessor employed the plaintiff Arnold C. Todd in person to represent this defendant in the litigation mentioned in said amended petition, but states that this defendant did employ the defendant Ralph Gore mentioned in said amended petition, an attorney duly licensed to practice and practicing at Wichita, Kansas, to represent this defendant in the lawsuit referred to in said amended petition.
“4. This answering defendant admits that the plaintiff assisted the said Ralph Gore in representing it in said litigation, and that the plaintiff and the said Ralph Gore rendered legal services in behalf of this defendant in that connection.
“5. This defendant specifically denies that the amount or value of the property in controversy in the said litigation was approximately S150,000 and specifically denies that the fair and reasonable value of the legal services rendered for this defendant by the plaintiff and the said Ralph Gore was the sum of S5,OO0, as alleged in said amended petition.
“6. This defendant has been ready, able and willing, and has offered at various times since the termination of said litigation to pay the defendant and the said Ralph Gore a fair and reasonable fee for the legal services rendered by them in behalf of this defendant, and this defendant is still ready, able and willing, and at this time offers to pay the plaintiff and the said Ralph Gore such fair and reasonable fee for their legal services rendered in behalf of this defendant.”
On April 2, 1940, plaintiff filed a reply in each case, specifically denying eafch material allegation of defendants’ answer inconsistent with the allegations of plaintiff’s petition, and—
“Plaintiff further alleges that if the defendant, The Central Petroleum Company, Inc., a corporation, employed the said Ralph Gore individually, as alleged in its answer, they did so clandestinely and secretly and never, through any agent or officer, informed the plaintiff of such fact, and further, that the said Ralph Gore, as a copartner of this plaintiff, never, at any time, informed this plaintiff of such fact and relationship.”
Thus the issues of the action with which we are presently concerned, No. 103,900, were joined on April 17, 1939. Issues not materially different were joined in No. 103,897, and when the issues were joined in both actions it was clear, as it always had been since the actions were filed on June 29, 1939, that the action in each was for a separate portion of the attorneys’ services rendered in defendant’s behalf.
On April 2, 1940, defendant filed a motion to consolidate the two causes for trial. No grounds for consolidation were stated and the motion was denied. The action No. 103,897 was called for trial May 14,1940. In that case the jury was instructed thus:
“Your verdict must be for the plaintiff for whatever you find to be the fair and reasonable value of plaintiff’s services to the defendant prior to July 1, 1937, together with the sum of $165.82 for money expended by him in defendant’s behalf, and to this total amount you will add interest at the rate of six percent per annum from June 29, 1939, to the date of your verdict, and include the interest in your general verdict.”
The verdict was for plaintiff in the sum of $4,489.78 with interest at 6 percent from June 29,1939, to this date—May 17, 1940..
Judgment was entered thereon and defendant appealed. This court affirmed the judgment as reported in Todd v. Central Petroleum Co., 153 Kan. 550, 112 P. 2d 80, decided April 12, 1941.
Following that decision, on August 14, 1941, defendant filed an amended and supplemental answer in the present action, case No. 103,900, in which, among other matters, it alleged that “the cause of action of ydfich the claim sued upon herein was a part has'been fully and finally adjudicated.” Reference was made to the matters involved and adjudicated in Todd v. Central Petroleum Co., supra, and concluded with a plea that because of the judgment in No. 103,897, which defendant had satisfied, plaintiff was not entitled to maintain this action.
Plaintiff moved to strike that belated amended and supplemental answer on various grounds, one of which gave the dates of the commencement of the action in June, 1939, the filing of defendant’s answer in December, 1939, and plaintiff’s reply filed on April 2,1940. Plaintiff’s motion also alleged that at no time prior to the filing of its belated amendment on August 14, 1941 (sixteen months after the issues-were made up), did defendant raise the question of a possible splitting of a single cause of action by the institution of the two suits. The motion to strike further alleged:
“At the beginning of the trial of case No. 103,897 on May 14, 1940, said defendant moved the court to consolidate this action with case No. 103,897, on the ground that the two causes of action contained in the cases should be joined for purposes of trial. ... In fact, its motion to consolidate the two actions under the statute, G. S. 1935, sec. 60-765, acknowledges the existence of two separate causes of action, or there would be no object in moving for a consolidation.”
The motion also pleaded that by its previous conduct throughout the course of the action defendant had waived any possible defense based upon splitting of a cause of action, and by its failure to raise that question by timely motion or plea, it was estopped to raise it at such a late date'—which was more than two years after this action and its contemporary action were begun.
The trial court overruled the motion to strike, and plaintiff promptly appealed.
It has taken much space to state the pertinent facts. With that done', however, the legal question involved in the trial court’s ruling becomes clear.
The rule against splitting a single cause of action into two or more lawsuits has often been applied in this court. (Insurance Co. v. Bullene, 51 Kan. 764, 33 Pac. 467; Coal Co. v. Brick Co., 52 Kan. 747, 35 Pac. 810; First Nat’l Bank v. Schruben, 125 Kan. 417, 265 Pac. 53; Krueger v. Schlemeyer, 145 Kan. 469, 66 P. 2d 395; Fiscus v. Kansas City Public Ser. Co., 153 Kan. 493, 112 P. 2d 83.)
We shall assume that the institution of the two actions based upon the one contract of employment constituted a splitting of the single cause of action without a critical examination of the circumstances' which might have justified or excused one action for Todd’s services until the formation of the partnership of Todd and Gore, and another action for the later services performed by the partners. But there is one familiar rule of trial practice which cannot be ignored in the situation outlined above. That rule is that an objection to the splitting of a cause of action, like all other tactical objections or dilatory pleas, must be made in a clear and timely manner. It serves no purpose to dictate into the record a camouflage of words which conceal rather than reveal the precise objection of the pleader. (Livingston v. Lewis, 109 Kan. 298, 198 Pac. 952.)
If a party to an action seeks the benefit of the rule against splitting a single cause of action he must claim its benefit on the institu tion of a second or unnecessary action at an early stage of the proceedings, otherwise he will waive his right to its benefit. We have recently had occasion to review a ruling of a trial court which involved the rule against splitting a cause of action. In Anspaugh v. Dougherty, 153 Kan. 257, 109 P. 2d 101, which was an action upon a balance due on a promissory note, one defense was that a partial recovery on the note had already been obtained in an earlier action and the benefit of the rule against splitting was claimed. The trial court sustained that plea, but this court ruled that the circumstances would not permit its application. In the opinion we said:
“The doctrine against splitting a cause of action is designed for the protection of defendants and not to give them an unjust advantage. Its object' is to prevent a multiplicity of suits. (Citations.) But a defendant may . . . waive the right to insist upon the rule forbidding the splitting of a cause of action. (1 Am. Jur., Actions, § 101; 1 C. J. S., Actions, § 102 [g]; Louisville Bridge v. L. & N. R. R. Co. et al., 116 Ky. 258.)” (pp. 265, 266.)
" In Georgia Ry. & Power Co. v. Endsley, 167 Ga. 439, 145 S. E. 851, 62 A. L. R. 256, a railway company had incurred liability in damages for injury to a person and his property. It was held that where in such a case the injured party brings one action to recover for the property damage only, and thereafter files another suit in which damages are sought solely for the personal injuries, and the defendant files defenses in each action, but does not object to either on the ground of “another action pending” until after judgment is rendered in favor of the plaintiff in the property damage suit, the defendant will be presumed to have consented to the splitting of the cause of action, and will not then be permitted to plead the property judgment in bar of the action for personal injuries.
In an annotation on “Splitting of Cause of Action—Waiver,” in 62 A. L. R. 263, it is said:
“Rule prohibiting the splitting of a cause of action is primarily for the benefit of the defendant, and may be waived by him. ■ Accordingly, it is held that the defendant, by failing to object to either of the actions on the ground of ‘another action pending’ until after the plaintiff recovered judgment in the property damage suit, is presumed to have consented to the splitting of the cause of action, and eannot plead the property judgment in bar of the action for personal injuries.”
To the same effect is the rule stated in 1 C. J. S. 1312.
It cannot be denied that defendant was very late in invoking the benefit of the rule against splitting. Both actions were begun on June 29, 1939. The purposes of the two actions were perfectly clear as pleaded in plaintiff’s two first petitions. Nearly five months after the actions were begun defendant filed dilatory pleas against them but lodged no plea against splitting. Even after plaintiff filed his amended petitions no such plea was invoked; and yet under our civil code then would have been the appropriate time to invoke the benefit of the rule against splitting. G. S. 1935, 60-705, in part reads:
“The defendant may demur to the petition only when it appears on its face, either . . . Third, that there is another action pending between the same parties for the same cause. . . .”
On December 26,1939, defendant filed almost identical answers in the two actions. In the second action, which is the one of particular concern here, defendant admitted its liability to pay some reasonable amount and alleged its readiness “to pay the plaintiff and the said Ralph Gore a fair and reasonable fee for the legal services rendered by them in behalf of this defendant.” Nothing was pleaded in this answer (nor in the answer in the other case) which hinted at any objection based on splitting the cause of action. On April 17, 1940, plaintiff’s reply was filed which joined the issues for trial. On May 14, 1940, when the first case was called for trial defendant filed its motion to consolidate the two cases for trial. Such a motion was a tacit admission that there were two actions which conveniently might be consolidated as the code provides. (G. S. 1935, 60-765.) The point that the two actions were based on one contract of employment and constituted a splitting was not made; neither did defendant even at that late date claim the benefit of the rule against splitting, although it now insists with great emphasis that this is what it was driving at by its motion to consolidate the two actions and by its objection to the introduction of evidence in case No. 103,897. But in Clark v. Linley Motor Co., 126 Kan. 419, 422, 268 Pac. 860, it was held:
“A litigant having a meritorious proposition of law which he desires to seriously press upon the attention of the trial court should raise the'point in such clear and simple language that the trial court may not misunderstand it, and if the point be so obscurely hinted at that the trial court excusably fails to grasp it, it will avail naught to disturb the judgment on appeal.” (Syl. IF 1.)
See, also, State v. Pyle, 143 Kan. 772, 782, 57 P. 2d 93, and citations; Stephenson v. Wilson, 147 Kan. 261, 76 P. 2d 810; Collins v. Safeway Cab, Transfer & Storage Co., 151 Kan. 242, 246, 97 P. 2d 1110.
Appellee reminds us that in Todd v. Central Petroleum Co., 153 Kan. 550, 112 P. 2d 80, when the first case, No. 103,897, was here for review, we said that if defendant desired to raise the question of splitting of the cause of action it might do so by appropriate pleadings in the second case. Very true. But we did not say nor intimate that if so raised such pleading would interpose an insurmountable barrier to plaintiff’s action despite defendant’s failure to raise the point by clear and timely objection to the splitting or by some timely and specific plea claiming the benefit of the rule against splitting.
This court holds that defendants’ failure to invoke the benefit of the rule against splitting in a clear and timely manner constituted a waiver of its right to object and gave implied consent to the splitting of the cause of action.
The judgment is therefore reversed and the cause remanded for further proceedings consistent herewith.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one involving the validity of certain paving proceedings by the board of commissioners of Independence. The proceedings in question comprised certain resolutions and ordinances, notices published pursuant thereto, a judgment of the district court, and a contract entered into by the city for the paving. The plaintiffs sought t'o have all such proceedings — the contract for the paving, and the previous judgment of the court— vacated, set aside and held for naught. A demurrer to their petition was sustained, and they appeal.
It appears that sometime prior to June 25, 1925, a large number of the property owners to be affected by the improvement petitioned the board of commissioners to repave, recurb and regutter Main street from the east line of Sixth street to the west line of Ninth street. The petition was filed with the city clerk. Some doubt existed as to whether a majority of the property owners affected had signed the petition. The commissioners on June 25, 1925, elected to treat the petition as advisory, and passed a' resolution providing that the street be repaved with vitrified brick, with concrete curb and gutter; that the resolution be published as provided by law; and that the resident owners be given twenty days in which to file a re monstrance. The resolution was published and within the time limit a remonstrance signed by more than one-half of the resident property owners was filed, and on July 23,1925, the remonstrance against the repaving with brick was declared sufficient. On July 28 a petition signed by a majority of the resident property owners praying that the street be repaved with reinforced concrete was filed with the city clerk. On July 30 the commissioners passed a resolution providing for the regrading, repaving, recurbing and reguttering of the street with concrete; that the resolution be published with the right of the property owners to protest within twenty days from its last publication. No protest was filed, but on August 31, 1925, a petition praying for the repaving either with brick or reinforced concrete, the price with either not to exceed $1.75 per square yard, signed by a majority of the resident property owners to be affected was filed with the city clerk.
Various other proceedings were had by the city commission which need not be here recited. On September 26 Sherwood was awarded a contract to repave the street by resurfacing with brick. Thereafter an action was commenced in the district court of Montgomery county by I. D. Oberholtzer et al. v. City of Independence et al., praying an injunction against the city and the contractor to enjoin the defendants from resurfacing the street with brick. After trial and due consideration the court entered a permanent injunction, enjoining the city from resurfacing the street with brick under the proceedings theretofore had. The judgment, among other things, recited:
“And now on this 15th day of October, 1925, one of the judicial days of the regular October, 1925, term of said court, the parties appearing as before, and the court having had said matter under advisement since the 6th day of October, 1925, and the parties respectively having submitted additional authorities and the court being fully advised in the premises, doth find:
“That upon June 25, 1925, the commissioners passed a resolution in the ordinary form, providing for repaving, reguttering and recurbing, and that the repaving be made and constructed of vitrified brick; that the resolution provided that it should be published in accordance with law, and the resident owners be given twenty days to file a remonstrance. That within the time limit a remonstrance was filed, and on the 23d day of July, 1925, upon motion of Mr. Kerr, seconded by Mr. Harlow, the remonstrance filed against the repaving of Main street was declared to be sufficient. That upon or about July 28, 1925, a petition was filed by a majority of the resident property owners with the commissioners, petitioning that the commissioners pave Main street from the east line of Sixth street to the west line of Ninth street, with reinforced concrete. That upon July 30, the commissioners passed a resolution regarding the repaving, recurbing and reguttering of all that portion of Main street in the city of Independence, from the east line of Sixth street to the west line of Ninth street. . . .
“That on September 26, 1925, the board of commissioners of the city of Independence met in adjourned session with Mayor Ken- and Commissioners Ryan and Harlow present. That at said meeting the board of commissioners adopted verified plans, specifications and estimates theretofore prepared by the city engineer for three types of repaving, to wit: new brick, reinforced concrete, brick resurfacing. That thereupon bids were received and opened for said three types of paving, said A. G. Sherwood being the only bidder, and all of said bids being within the engineer’s estimates. That on motion of Ryan, seconded by Harlow, it was ordered that Main street from Sixth to Ninth be repaved by resurfacing with one course of brick; that at such time the contract for the resurfacing of said street with brick was allowed to the only bidder, A. G. Sherwood.
“The court finds that inasmuch as a petition was first presented for the resurfacing of said street with brick and that a remonstrance was thereafter filed in due time, and that as soon thereafter as stated in the findings another petition was presented by a majority of the resident owners, petitioning for repaving of said street with concrete, and that the resolution passed by the board of commissioners provided that the same should be repaved with concrete, notifying the resident property owners that if they had any protest same should be made within twenty days; that the city could not thereafter award the contract to Mr. Sherwood for anything except that kind of paving, or concrete paving, as mentioned in the resolution; that the city commission should be, and they are hereby restrained from proceeding with the contract for repaving with brick with Mr. Sherwood under the present resolution and ordinance.
“It is therefore by the court ordered, adjudged and decreed that said defendant be and it is permanently restrained and enjoined from proceeding with the repaving of said street with brick resurfacing under the said contract with said A. G. Sherwood; it is further ordered, adjudged and decreed that said city may, if it so elects, repeal all orders, resolutions and ordinances heretofore adopted concerning said paving, or proceed to let said contract for repaving with reinforced concrete upon the verified estimate, plans and specifications heretofore prepared by the city engineer and adopted by said board to said A. G. Sherwood upon his bid for repaving said street with reinforced concrete.”
In accordance with the court’s judgment, the commissioners rescinded their action theretofore taken in letting a contract for brick resurfacing, and let a contract to the defendant Sherwood on his bid for reinforced concrete. The paving has long since been completed, but the plaintiffs seek to have the proceedings and the judgment of the court vacated as a nullity. They contend that there is no law under which the commissioners could, without readvertising, let the contract for reinforced concrete under a bid made four months be fore its date; that the action was illegal and fraudulent; that in the interim there might have been changes in prices of material, or labor, which would have been beneficial to those who bear the burden — the resident owners of more than one-half of the property liable for taxation and assessment for such paving. They allege that the trial court was fraudulently deceived and misled when it considered and determined the original case. The court sustained a demurrer to plaintiff’s petition in the instant case indicating that it had in no wise been misled. It had before it all of the petitions, orders, minutes, resolutions, and, in fact, every step taken by the board of commissioners, including the contract to Sherwood for brick resurfacing, as shown by the journal entry of judgment. That the trial court was careful in its consideration of the matter is indicated by the fact that, while the hearing and argument were had on October 6, the court took the matter under advisement and did not finally enter judgment until October 15 following. The judgment was not void.
The defendants contend that they considered the petition “for either reinforced concrete or brick resurfacing” merely as advisory; that they did not consider that it had any binding force or effect on the action of the board.
In Salt Co. v. Hutchinson, 72 Kan. 99, 82 Pac. 721, where a similar matter in some respects was considered it was said:
“Whatever the petition may contain as to the character of such improvement must be taken as mere advisory suggestions, which may or may not be followed. By this we do not mean that the mayor and council may under all circumstances, when a paper called a petition is filed with them, proceed to construct the special improvement asked for and disregard the statements of such paper as to the kind of improvement and the details of its construction. A paper might be so filed which would amount to a mere proposition, instead of a petition, within the meaning of the statute. The signers of such a paper might indicate that they wanted the proposed improvement provided it could be made for the price and of the kind stated, and not otherwise. This would not be a petition within the purview of this statute, and such paper might be properly rejected.” (p. 102.)
The petition in the instant case upon which the improvement was made called for reinforced concrete, and by having estimates made and calling for bids on reinforced concrete, the board was merely carrying out the expressed desire of a majority of the taxpayers to be affected by the improvement. The fact that the resolution passed by the commissioners provided for the paving of the street with concrete instead of reinforced concrete was not so wide a variation as to render the proceedings void. (See Salt Co. v. Hutchinson, supra; also, Root v. City of Topeka, 104 Kan. 668, 180 Pac. 229; Fairchild v. City of Holton, 101 Kan. 330, 166 Pac. 553.) Various other complaints have been considered. None are of sufficient moment to require a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus, to compel the county clerk of Wyandotte county to print plaintiff’s name on the general election ballot as the Democratic candidate for judge of the district' court of Wyandotte county, division No. 4, short term. The name of no Democratic candidate for the office appeared on the primary election ballot, the name of no Democratic candidate was written on the primary election ballot by a sufficient number of voters to' nominate, and no Democratic nomination was made at the primary, election held on August 3,. 1926. On August 19, the Democratic party .committee nominated plaintiff, and on September 7 a certificate of nomination in due form: was filed. Defendant as county clerk declines to recognize the nomination. The primary election law' contains the following provision:
“Vacancies occurring after the holding of any primary shall be filled by the party committee of the . . . county, . . .” (R. S. 25-220.)
Plaintiff bases his right to have his name printed on the general election ballot as a party nominée on a dictionary definition of a word. In his brief he quotes from the definition of “occur” contained in Webster’s New International dictionary, the following:
“To meet one’s eye; to be found or met with; to present itself; to appear to happen; to take place,” . . .
At the oral argument, the meanings which were stressed were those in the class with “to meet one’s eye.” Subsequent to August 3, a vacancy in respect to nomination for the office in question met the eyes of the members of the Democratic committee — presented itself, or appeared, or came to their minds. Therefore a vacancy occurred, and occurred after the holding of the primary election. Having thus justified use of the word occurring in the sense of existing, plaintiff undertakes to harmonize such use with the purpose of the statute, and to demonstrate foresight of the legislature. Plaintiff fortifies his position by citation of authority.
In the case of State v. Wells, 92 Neb. 337, a primary election case involving a like statute, the supreme court of Nebraska said it must give the ordinary meaning to the word occur, quoted the Webster definition of the word, and said:
“This seems to be plainly the sense in which the legislature used it in our statute. A vacancy on the ballot presented itself and appeared, and it was the province of the proper committee to fill such vacancy. If the only candidate voted for had died on primary day before the votes were cast, it will be conceded that a vacancy would occur. If after the primary there is a vacancy, it has ‘occurred,’ within the meaning of the statute.” (p. 342.)
In the case of Richardson v. Young, 122 Tenn. 471, involving the filling of a vacancy in office, the court said:
“The words ‘occur’ and ‘happen’ are usually used in referring to vacancies in office, and mean the same thing.
“In Fritts v. Kuhl, 51 N. J. Law, 192, 17 Atl. 102, it is said: ‘The word “happen,” in its strictest literal sense, signifies an unexpected event. It is also not uncommonly used as synonymous with “occur,” “take place,” “exist,” and “happen to be.” ’
“Mr. Webster defines the verb ‘to occur’: ‘To be found or met with’ — and the Century dictionary: ‘Be found; be met with,’ and a quotation is given showing that it is synonymous with the word ‘exist.’
“In Roget’s Thesaurus, in treating of the state of ‘being,’ the word ‘occur’ is used as equivalent of ‘exist.’
“We think that ‘occur’ or ‘occurring’ means the same as ‘happen’ or ‘happening,’ or that both may be used in the sense of ‘existing’ or ‘to be found,’ and that this definition has been given them in construing clauses of constitutions and statutes concerning the filling of vacancies.” (p. 552.)
The fault in plaintiff’s presentation of the question for decision lies in its method. He finds a legitimate meaning of a word in a dictionary, which suits his purpose, adopts that meaning, and from that meaning proceeds to deduce a legislative act. The result is, his pyramid stands on its apex and not on its base, and his authorities are not persuasive.
The provision of the Nebraska primary election law which was involved in State v. Wells, supra, reads thus:
“Vacancies occurring upon any party ticket after the holding of any primary shall be filled by a majority vote of the party committee. . . (p. 341.)
The court turned to -the dictionary, and found it was permissible to use the word “occur” in several ways, consonant with the sense of being or existing. The court then declared it seemed plain such was the sense in which the legislature used the word. The question for decision was whether the legislature used the word in that sense or in some other sense, and the court’s statement did not make the matter plain. Demonstration followed. The court said the vacancy on the ballot presented itself and appeared, and it was the province of the proper committee to fill it. It is true a vacancy on the ballot presented itself and appeared, in the sense of meeting the eye of the party committee, but it was not the province of the committee to fill the vacancy unless the legislature used the word “occurring” as the equivalent of presenting itself or appearing in the passive sense of existing. The court then arbitrarily declared a concession would be made in respect to a situation not presented by the record for consideration. Finally, the court said that if, after the primary, there is a vacancy, it has occurred. This means that if, after the primary, a vacancy exists, the vacancy has occurred; and the statement could not be true unless the legislature used the word “occurring” in the sense of existing, and not in some other sense. If the legislature used the word “occurring” in the sense of existing, the court’s statement comes to this: If after the primary there is a vacancy, it exists. Query: In what sense did the legislature of the state of Nebraska use the word “occur”?
In the case of Richardson v. Young, 122 Tenn. 471, the court was called on to interpret an act of the legislature providing for filling vacancies in the state board of elections. On investigation the court found the word “occurring” may be used in the sense of existing, and had been so defined in the interpretation of certain instruments providing for the filling of vacancies in .office. The court did not, however, stop there, and declare that, because it was permissible to use the word in a certain sense, the legislature of Tennessee plainly used it in that sense. The question remained, In what sense did the legislature use the word? and the court proceeded to ascertain the legislative intention according to accepted canons of interpretation. The conclusion was, the word “occurring” was used in the sense of “whenever found existing.” In view of the disastrous consequences which would follow a long-continued vacancy in the state board of election commissioners, the court said that, if the' meaning were doubtful, public policy and effective administration of the law would require the doubt to be resolved in favor of the meaning adopted, (p. 554.)
Mr. Micawber’s aphorism, “Accidents will occur in the best regulated families,” is a familiar saying among those who have not read David Copperfield, as well as those who have, which reveals general and popular use and understanding of the word “occur.” The father tells his boy to see to it that something which has taken place does not occur again; we read the morning papers for the incidents which occurred in the world the day before; and to the holders of' fire insurance policies, and some courts, the words of a policy, “after' loss shall occur,” mean after a fire. Turning to the definition of “occur” in Webster’s New International dictionary, we find the following in addition to what plaintiff and the supreme courts of Nebraska and Tennessee quote:
“Svn. — Occur, happen are often iised without distinction. But occur is the' more formal word of the two, and applies esp. to that which is thought of as • definitely taking place as an event; happen is the more general term for that which in any way comes to.pass; as, when did it happen? cf. when did it occur? His death oecurred at midnight; I don’t know what happened (cf. what occurred) after I left.”
The Century dictionary, cited in Richardson v. Young, supra, further defines the word “occur” as follows:
“To emerge as an event into the actual world; happen; take place; come to pass; befall: as, what has occurred?”
Roget’s Thesaurus, cited in the same opinion, further illustrates use of the word “occur” in the category of eventuality — event, incident, affair, transaction.
In the richest treasury of English words which we possess, the Oxford English dictionary, the following definition, among others, of “occur” is given:
“To present itself in the course of events; to happen, befall, take place as an event or incident.”
Adopting plaintiff’s method and applying the portion of the rule prescribed by the legislature, for the construction of statutes whitín provides that words shall be construed according to the approved usage of the language (R. S. 77-201, second), the court might rest on these authorities, and declare the statute means that vacancies originating as events in time after nominations have been made at a primary, may be filled by the party committee. The statute requires, however, that interpretation must have a broader basis. Words shall also be construed according to the context (lb.). In this instance the context is illuminating.
In its original form, the statute relating to primary elections (R. S. ch. 25, art. 2) was enacted in 1908. It provides that all candidates for elective offices shall be nominated by a primary held in accordance with the act. Some exceptions to universal application of the law, contained in the second section, are not immediately material. The statute then proceeds to unfold a scheme complete in every detail for the nomination of party candidates by primary election. R. S. 25-203 to R. S. 25-219, both inclusive, are devoted to the subject. The details include qualification of candidates necessary to secure printing of their names on the official primary ballot, publication of lists of names of qualified candidates,' preparation of the official ballot, the holding of the primary election, and the canvass of returns. County’ canvass of votes is made pursuant to the law governing general elections.’ The returns shall contain the whole number of votes cast for each candidate of each political party, and a duplicate must be given to the county chairman of each political party (R. S. 25-217). R. S. 25-218 relates to canvass of votes by the state board of canvassers and publication by the secretary of state of a certified statement- of the result of the -primary. The section concludes as follows:
“On the fourth day after the completion of such state canvass or as soon as practicable thereafter, the secretary of state shall mail to each candidate found to be duly nominated by the state board of canvassers, a certificate of nomination, showing the name of the candidate, the party by whom nominated and the office for which he is nominated as specified in the nomination papers and determined by the state board of canvassers.”
The next section reads:
“(1) The person receiving the greatest number of votes at a primary as the candidate of a party for any office shall be a candidate of that party for such office, and his name as such candidate shall be placed on the official ballot at the ensuing election for which such primary is held. (2) In case of a tie vote, the respective boards of canvassers provided for by this act shall forthwith determine said tie by lot.” (R. S. 25-2X9.)
Then follows R. S. 25-220, the section under interpretation, which reads:
“Vacancies occurring after the holding of any primary shall be filled by the party committee of the city, subdistrict, county, or state, as the case may be.”
What vacancies are here referred to? The immediate context answers the question: Vacancies in the nominations of those persons who received the greatest number of votes at the primary as party candidates, and whose names as such candidates would, if nothing occurred to prevent, be placed on the official ballot at the ensuing election.
Regarding all that goes before the provision for filling vacancies as context, the context identifies the vacancies referred to in the section relating to filling vacancies. The first section of the law is given to definition of terms. The second section begins as follows:
“Hereafter all candidates for elective offices shall be nominated by: (1) A primary held in accordance with this act; . . .”
It is not necessary to indulge in reminiscence or speculation concerning the theory and purpose of the primary election law. The legislature has declared them in express terms. All candidates for elective offices shall be nominated by a primary. The declaration needs no interpretation. It is unambiguous and compulsory. A primary election shall be held. Ballots containing the names of candidates who have qualified to appear upon them are to be prepared, cast, and counted, with the result that candidates will be nominated. If after the law has been fulfilled, vacancies occur in those nominations, the party committee may then fill them with substitutes.
There is a helpful method of sounding legislative intention besides the statutory one of construing words according to context and approved usage of the language. Blackstone recommended it. The method is to consider the old law, the mischief, and the remedy. The old law and the remedy we know. To avoid controversy, we may substitute for the word “mischief” the phrase “system to be supplanted.” Plaintiff says the system permitted candidates to be hand-picked for special purposes; and the court recalls that leading advocates of the compulsory primary at the time of its adoption were called boss-busters, and were imbued with great fervor.
The caucus and convention system of nominating candidates for office prevailed in Kansas until the compulsory primary law was enacted. In 1891 a statute was enacted that when a political party caused notice to be given of the holding of a primary election, such election should be held under the safeguards provided. The notice was ordered by the party central committee, and stated the purpose of the election (Laws 1891, chi- 115). The law did not accomplish the results hoped for, because party utilization of the primary was voluntary. The caucus and convention system continued to predominate, and the remedy was to make the primary system compulsory. The law of 1891 contained no provision for filling vacancies, and was expressly repealed by the primary law of 1908.
In 1893 an Australian ballot law was enacted, which was superseded by another in 1897 (Laws 1897, ch. 129). The Australian ballot law provided that the official election ballot should be made up from certificates of nomination by party conventions, caucuses, or primaries. Section 9 contained the following provision for filling vacancies:
“In case a candidate who has been duly nominated, under the provisions of this act, dies before election day, or declines the nomination as in this act provided, or should any certificate of nomination be held insufficient or irfoperative by the officers with whom they may be filed, the vacancy or vacancies thus occasioned may be filled by the political party or the persons making the original nominations; or, if the time is insufficient therefor, then the vacancy may be filled, if the nomination was by convention, primary, or caucus, in such manner as the convention, primary or caucus had previously provided; or in case of no such provisions, then by the regularly elected or appointed executive or central committee representing the political party or persons holding such convention, primary meeting, or caucus. The certificates of nominations made to supply such vacancy shall state, in addition to the facts hereinbefore required by this act, the name of the original nominee, the date of his death or declination of nomination, or the fact that the former nomination had been held insufficient or inoperative, and the measures taken in accordance with the above requirements for filling a vacancy, and it shall be signed and sworn to by the presiding officer and the secretary of the convention, primary, or caucus, or by the chairman and secretary of the.duly authorized committee, as the case may be.” (It. S. 25-307.)
Special elections to fill vacancies in office are excepted from operation of the compulsory primary law. Nomination of candidates to be voted for at such elections may still be made according to the caucus and convention system, and vacancies in those nominations may still be filled according to section 9 of the Australian ballot law, which now appears as R. S. 25-307. Primary nominations referred to in the section are primary nominations under the act of 1891, and statutory authority for such nominations ceased with repeal of that act.
Summarizing the matter, the primary law of 1891 made no provision for filling vacancies, however occasioned, after the primary was held. The Australian ballot law recognized no privilege to place the name of a party candidate on the election ballot after close of the period for making nominations, unless a nominated candidate died, or declined, or his certificate of nomination was adjudged insufficient ,or inoperative. If a political party desired to nominate a candidate for an office, it was obliged to furnish him with proper nomination credentials, and if a party defaulted in making nominations, it could not subsequently exercise the privilege through its central committee. This _is still the law governing special elections.
There is nothing in the compulsory primary law to indicate that the legislature intended it might be treated with greater indifference than the old law. The utmost pains were taken to afford opportunity to nominate by primary. Electors may bring forward candidates by petition.. If the office display apathy in thus seeking the man, candidates may volunteer by filing a declaration and paying a fee. Ordinarily, desire for office will produce a sufficient crop of candidates. Every one having even slight familiarity with party politics knows that, in the event of crop failure, alert party leaders and party managers have ways of inducing candidacies. If both patriotism and pressure fail to produce either nomination or declaration papers for an office; the official ballot is prepared in a manner which discloses the fact, and voters at the primary election are privileged to write in blank spaces left for the purpose opposite the printed title of the office, the name of a candidate for the office. To say, in view of these liberal provisions, that the legislature deliberately intended merely by implication from the provision to fill vacancies, to reverse its policy, and authorize a political party which neglected, ignored, or renounced its primary opportunity, to back in and name candidates through action of its party committee, would be to run counter to the mandate that all candidates shall be nominated at a primary. On the other hand, if it be said that a case of no nomination at a primary is not a case of vacancy at all, and that vacancies occur only in nominations made as the law requires, the legislative policy is consistent throughout, the primary law is con sistent with itself, and the concluding section, relating to filling vacancies, completes the primary scheme and protects a political party against fortuitous breaches in its phalanx of primary nominees, occurring after the primary.
Other decisions of this court having a relation to the problem should be considered when the meaning of a statute is to be ascertained. No authoritative definition of the word “occur” has been discovered. The meaning of the word “vacancy” as applied to an office has been well discussed. (Pruitt v. Squires, 64 Kan. 855, 68 Pac. 643; Barrett v. Duff, 114 Kan. 220, 217 Pac. 274.) But there is no dispute in the present case that an office or other position is vacant whenever it is unoccupied by a qualified incumbent. In the case of Bower v. Clemans, 61 Kan. 129, 58 Pac. 969, section 9 of the Australian ballot law quoted above was interpreted. Nominations for county offices were regularly made at. a party convention held on August 8. Time for filing certificates of nomination expired on October 8. The chairman and secretary of the convention failed to present the certificate of nominations made at the convention until October 11, and the county clerk refused to receive and filé it. On October 13, the county committee nominated the nominees of the convention, and presented a certificate of nomination to the county clerk. The county clerk refused to file it, on the ground there had been no deaths or declinations and the certificate was presented out of time. The statute provided that in case any certificate of nomination should be held insufficient or inoperative by the officer with whom it should be filed, the county committee might fill the vacancy thus occasioned. The court held that presentation of the certificate of convention nominations to the county clerk for filing was tantamount to an actual filing, that the county clerk’s refusal to recognize the certificate was a holding it was inoperative, and consequently that the county committee was authorized to fill the vacancy so occasioned. The decision sheds no light on the present controversy, and the court has heretofore made none that does.
Similar laws of other states and decisions of the courts of such states interpreting those laws, may be helpful when the meaning of an ambiguous statute is sought. In this instance, the court has examined the pertinent decisions of the courts of last resort of eighteen states, construing the primary election laws of those states. Pressure of other judicial work forbids detailed statement of the result of the examination, and the court must be content to an nounce, without giving the reasons, that nothing was discovered which would be of controlling influence in reaching a conclusion respecting the meaning of the Kansas law.
Having utilized available data on which to base a conclusion, the court is led to believe that the provision of the primary election law, that vacancies occurring after the holding of a primary may be filled by the proper party committee, applies only to vacancies in nominations made at the primary, and that nomination of plaintiff as a candidate for the office he seeks, by the county committee of his party, was not permitted by the primary election law.
The writ is denied.
Mason, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the Security Bank to foreclose a chattel mortgage given by P. P. Jones and N. W. Jones, on a threshing outfit and some other property. The A. A. Doerr Mercantile Company intervened in the action and set up a chattel mortgage given by Jones on the engine, which was part of the threshing outfit claimed by the bank. The intervener prevailed and the bank appeals.
While several mortgages were set forth by the bank, the only one material to the present controversy was one executed by the Joneses on November 25,1919, to the bank, described as follows:
“70 acres growing wheat east V2 sec. 31, range 2, tp. 26. 1 111. separator 40 by 64, number F. 128, with attachments thereto, said separator now located in Kingman Co., Kan., on Hobson farm, also the engine.
“All the above live stock and implements are to be kept on my farm east V2, sec. 31, range 8, tp. 26.
“15 head hogs, average about one year old.
“1 Herff truck No. 1675.”
This mortgage was given to secure a promissory note made by the mortgagors for $5,132.13, dated November 25, 1919, payable 180 days after date.
In its answer and cross petition the intervener set forth that on September 24, 1921, Jones executed a chattel mortgage to it upon “One No. 16350, Geiser 25 H. P. simple engine.” The mortgage also covered a separator, extension feeder, cook shack and some other property, but the only property involved in this appeal is the engine. The trial court found in favor of the bank as to the wheat crop and the Illinois separator, with the attachments mentioned in the plaintiff’s mortgage, but found in favor of the intervener as to the engine, cook shack, extension feeder, drive belts and tools and a steel water tank, holding that the intervener was entitled to the immediate possession of the property last mentioned, and that as the plaintiff had disposed of it and a return thereof could not be made,-that the intervener was entitled to a judgment for the value of the property fixed at $1,125, and also that the intervener was entitled to damages in the sum of $157.40 for being deprived of the use and possession of the same, and judgment was accordingly entered.
Which mortgage was superior, so far as the engine was concerned, is the principal question in the case. There was some dispute in the testimony respecting the residence of the mortgagors when the bank’s mortgage was executed, but the trial court settled that question when it found in favor of the bank as to the separator which was included in the mortgage. It is agreed that the controlling question on this appeal is whether the description of the engine in the bank’s mortgage was sufficient to identify the property; whether the mortgage suggested inquiries or means of identification such as would give subsequent purchasers and mortgagees notice that the engine was covered by the bank’s mortgage. It is manifest that -the court held the description of the engine in plaintiff’s mortgage was too indefinite to identify the property or give notice of a lien to the intervener. ■ It is conceded by plaintiff that the mere reference to an engine in the mortgage without further description as to its kind, its number or -location, would be defective and invalid. It will be observed, however, that the engine was described in connection with the other parts of the threshing outfit. There is a particular description of the separator, giving name, number, style and location, and added to that description are the words “also the engine.” As already stated, the clause naturally carries the implication that the added engine is a part of the outfit, and that the engine as well as the separator was owned by the mortgagors and was located on the Hobson farm in Kingman county. As used, the wrord “also” is a copulative conjunction indicating that it is to be considered in connection with the preceding clause and is equivalent to the expression “in like manner” or “in the same manner” (Webster’s International Dictionary; 2 C. J. 1164), and hence the clause following is to be regarded as connected with the preceding one and the engine to be a part of the threshing outfit and likewise located on the Hobson farm in Kingman county. The general rule applicable to a description of property in a chattel mortgage is that if the description given is such as will enable third persons, aided by reasonable inquiries which the mortgage itself suggests, to identify the property, it will impart notice and be sufficient. (Mills v. Kansas Lumber Co., 26 Kan. 574; Waggoner v. Oursler, 54 Kan. 141, 37 Pac. 973; Rudolph v. Commission Co., 76 Kan. 789, 92 Pac. 1103; Wogan v. Sivey, 95 Kan. 774, 149 Pac. 411.) Although the description may be meager and even defective, if it fairly gives a clue to the identity of the property so that third parties by reasonable investigation may ascertain the property which the parties intended to include in the mortgage, the instrument must be regarded as a valid lien. The ■location of the property at the time the mortgage is executed, if given, affords a clue by which the property may be identified. It has been said that:
“Where the description of the property is general, its location becomes an important element, since it may be the only means of adequate identification, and in such case a specific statement of its location will cure an otherwise insufficient description.” (11 C. J. 466.)
In Wogan v. Sivey, supra, it was held that the naming of the person from whom the property was purchased afforded a clue toward identification. Under the view taken the location of the engine mortgaged was stated in the instrument, since the description included it with the other parts of the threshing outfit, and a reasonable inquiry would have developed that it was on the Hobson farm in Kingman county. Something has been said about the mortgagor owning another engine at some time, but the testimony clearly showed that the engine involved here was the only engine owned by the mortgagor that was located on the Hobson farm and used at that time in connection with the outfit, and was manifestly the one covered by the plaintiff’s mortgage. As the identification is deemed to be sufficient, the plaintiff was entitled to recover the engine as well as the separator, and of course the intervener was not entitled to any detention damages.
The judgment is reversed and the cause remanded, with direction to enter judgment for plaintiff awarding it the possession of the engine. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages, because of decline in price, for delay in shipment of two cars of grain from Baker, Kan., to market at St. Louis, Mo. It was tried to a jury, which answered special questions and returned a general verdict for plaintiff, upon which judgment was entered. The defendant has appealed.
Defendant filed a motion to set aside answers to certain of the special questions for the reason they were not supported by the evidence; also a motion for judgment in its favor on answers to .other special questions, notwithstanding the general verdict; also a motion for a new trial. The material portions of the journal entry of the hearing upon these motions are as follows:
“And the court having heard the argument of counsel for the said respective parties herein, and being duly’advised in the premises, doth find as follows:
“1st. That the motion of defendant to set aside the answers of the jury to questions numbered 1, 2, 4, 5, 6, 7, 11 and 12 of the special questions requested by the defendant, plaintiff consenting thereto, should be, by the court, sustained.
“2d. That the motion of defendant for judgment non obstante veredicto should be overruled.
“3d. That the motion of the defendant for a new trial of said cause should be overruled.”
Defendant contends that its motion for judgment in its favor, upon the answers to two special questions (which were not set aside), notwithstanding the general verdict, should have been sustained. These findings were, that when plaintiff shipped the respective cars of grain he drew drafts for the approximate value of the grain, which he attached to the "bills of lading, and deposited them in his home bank and received credit on his bank account therefor. Defendant contends that by so doing plaintiff parted with title to' the wheat, was no longer concerned with the question of when it reached St. Louis, and was not the real party in interest. But this does not necessarily follow. Such a transaction may evidence an actual sale of the wheat to the bank, or simply an advancement of the amount of the draft by the bank to plaintiff with the bill of lading as security. Here, as in any controversy as to whether á transaction is a sale of personal property, the question is: What was the real intention of the parties? In this case the evidence shows that the amounts of the drafts were placed to plaintiff’s credit with the understanding and agreement that if they were not paid they were to be charged back to plaintiff. They were drawn on plaintiff’s agents at St. Louis, the bank was fully reimbursed even before the shipments reached St. Louis, and plaintiff’s agents had settled with him for the sale-price of the wheat before this action was brought. Hence, there was no one but plaintiff interested in the claim of damages for delay. There was no error in this ruling.
Defendant contends that after the court set aside certain of the special findings its motion for a new trial should have been granted, for the reason there was then nothing to sustain the general verdict. The special findings were as to the amount of unreasonable delay in the shipments, the market price on the days the shipments should have reached the market and the days they did arrive, the difference, and resulting damage’s, and from these apparently the general verdict was computed. If the court set aside these findings for the reason they were not supported by the evidence, a new trial should have been granted; but it is not clear the court set them aside for that reason. The journal entry is open to the interpretation. that they were set aside by mutual consent, and treated as though they had not been submitted. This is the only reason suggesting itself to us which would justify the court in setting them aside; and not granting a new trial. At the oral argument in this court plaintiff contended the special findings were set aside by mutual consent and the matter treated as though the questions had not been submitted; defendant controverted that, and contended its motion to set aside the findings for lack of evidence to support them was sustained. We shall let the trial court settle the matter.
Plaintiff has abstracted evidence which he contends supports the findings which were set aside, but we cannot consider it, for plaintiff did not object to the setting aside of the findings, and he has no cross appeal.
The cause will be remanded, with directions for the trial court to find and state whether the motion to set aside the findings was sustained because of a lack of evidence to support them, and if so to grant a new trial, or whether they were set aside by mutual consent and the matter treated as though the questions had not been submitted, and if so the judgment is affirmed. The costs in this court will be divided.' | [
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The opinion of the court was delivered by
Johnston, C. J.:
Fred Irvine was prosecuted for violations of the prohibitory liquor law under an information which contained four counts, in which he was charged with two separate sales of intoxicating liquor, and also with unlawfully having liquor in his possession on two occasions. At the trial the jury found him guilty on all the counts included in the information. On this appeal his complaint is that the evidence is insufficient to sustain the verdict of the jury. On one transaction there was testimony by a witness, Blevins, that he went to defendant’s farm to buy whisky, and upon his application defendant told him that he had some that belonged' to another fellow. He then got into the automobile with Blevins and another named Sharkey, and directed them to drive, to a place about half a mile distant near a ravine, which was done. At defendant’s suggestion Blevins went with him about one hundred yards, and there defendant pulled from under the bank of the ravine a s.ack which contained a two-gallon jug about two-thirds full of whisky. Defendant told Blevins that he would sell him the liquor in the jug for $12 and Blevins paid him that amount for it. Sharkey was with Blevins and stayed in the car when the defendant procured the liquor and he gave corroborative testimony as to the transaction. He further testified that they drank some of the liquor and that it was rye whisky. When Blevins was asked as to what was contained in the jug he stated that they took several drinks of the liquor, and when asked what it was, said, “Whisky, I guess.” It is argued that the quality of the liquor cannot be established by a guess, but apart from Blevins’ statement that he thought it was whisky, Sharkey, who drank some of it, said it was whisky. The testimony as to this transaction is certainly sufficient to show that the stuff which defendant had in his possession and sold to Blevins was intoxicating liquor.
At a later time one John Mitchell applied to defendant for liquor and was told by defendant that he did not have it, but that he could get it within thirty minutes. He then got in a Ford car and drove away and in about one-half hour returned with five bottles, in a sack, which he sold to Mitchell for $10. Mitchell drank of it and said he thought it was whisky, and that it was an intoxicating liquor. Mitchell was .arrested later in the day with some of the liquor in his possession and the officer who smelled and tasted it declared that it was intoxicating. It may be said that the defendant contradicted the testimony of the witnesses for the state, but a reading of the record leaves no doubt that the finding of the jury to the effect that defendant had intoxicating liquor in his possession and made sales of it on these occasions substantially as charged in the information, is abundantly sustained by the evidence. Further comment on the error assigned is not warranted.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The question involved in this appeal is whether garnishment of those in possession of assets of the estate of an intestate, before an administrator has been appointed, binds the distributive share of an heir as against garnishment of the administrator after final distribution has been ordered by the probate court.
Anna F. Moore and her husband, Emera A. Moore, became heavily indebted to two banks of Osage City, and left the state. Anna E. Moore’s father, Thomas E. Best, died intestate, leaving property more than sufficient to pay his ^debts. Immediately following death of Thomas E. Best, each bank brought suit against the Moores, and caused the assets of the estate of Thomas E. Best to be garnished in the hands of those in possession. The garnishment of the Citizens bank was prior in time to that of the Farmers State Bank. The Moores were served by publication, the actions proceeded to judgments finding the amounts due, and real estate was sold which partially satisfied each judgment. The balance due the Citizens bank after appropriation of real estate was $1,463, and the balance due the Farmers bank was $1,935.38. The judgment in favor of the Citizens bank declared that its garnishment lien was superior to all others.. It is claimed, and may be conceded, that this portion of the judgment was contested by the Farmers bank. After service of garnishment summons, an administrator of Thomas E. Best’s estate was appointed. Under order of the probate court the administrator reduced the assets to possession, and in due time settled the estate. The Citizens bank gave its consent that its garnishees might deliver to the administrator assets in their possession. The administrator gave notice that he would close administration on May 23, 1925, and on that day the probate court made an order of final distribution, directing the administrator to distribute the balance of the estate in his hands to the lawful heirs of Thomas E. Best, including the sum o'f $1,665.82 to Anna F. Moore. On May 22, 1925, the Citizens bank obtained an order from the district court directing the administrator to pay Anna F. Moore’s distributive share of her father’s estate to the bank. This order was served on the administrator. On May 25, 1925, the Farmers bank brought suit against Anna F. Moore for the unsatisfied portion of her indebtedness, and garnished the administrator, who had not complied with the order‘of final distribution or with the order of the district court. Anna F. Moore was served by publication, and in due time the action proceeded to appropriate judgment. The administrator answered as garnishee, stating the situation, and was permitted to pay to the clerk of the district court the fund in controversy, to abide the court’s order. By leave of court, the Farmers bank interpleaded in the Citizens bank case, issues were joined, a trial was had, and the court awarded the fund to the Farmers bank.
The persons garnished by the Citizens bank were the widow of Thomas E. Best, his son, L. L. Best, and the Admire State Bank. The garnishment proceeding was the equivalent of an action against them by the bank to recover the unadministered assets of the estate in their possession (R. S. 60-951), for the purpose of appropriating a portion of them to payment of Anna F. Moore’s debt to the bank. If judgment were rendered against them and the judgment were enforced, the estate could not be administered according to law. The estate would be in custody of the district court-. Whatever the probate court might desire to do would be subject to the limitations imposed by the orders-and judgments of the district court. The decedent’s debts were to be paid, a will might be discovered, a posthumous child might be born, advancements to Anna F. Moore might have been made, and whether she had any interest, and if so the extent of it, was contingent on the result of settlement of the estate. Settlement of the estate was a subject within the exclusive jurisdiction of the probate court,- and the law does not tolerate interference with that jurisdiction by the district court.
It was the duty of the probate court to appoint an administrator of the estate of Thomas E. Best. It is elementary law that, when the administrator was appointed, he took title to all the personal property. His title was not title sub modo, but was full legal title which related to the time of the intestate’s death. Such title is indispensable to the administrator in order to qualify him to collect and account for assets and to obey lawful orders of the probate court, and is indispensable to the probate court to enable it to fulfill its jurisdiction over settlement of an estate.
A garnishment creditor has no privilege superior to that of his debtor, and Anna F. Moore could not have recovered judgment, for example, against the Admire bank for one-fourth of the money her father had on deposit there. She had no interest in any specific portion of the funds or property in the hands of the administrator, until the estate was settled and the probate court made an order of final distribution. This court has already declared that creditors may not meddle with an estate by garnishment proceedings after appointment of an administrator and before the probate court has released control by an order of final distribution. (McCarthy Hardware Co. v. Foust, 118 Kan. 431, 235 Pac. 867.) It is just as essential the probate court take unencumbered possession of an estate for the purpose of administration. This is accomplished by carrying the administrator’s title back to death of the intestate and making the administrator’s succession to the intestate immediate.
L. L. Best, son of the intestate, and one of the garnishees, was appointed administrator. As administrator he was not affected by the garnishment proceeding. He was not a party, in his capacity a administrator, to any action in which the fund was in controversy until he was garnished by the Farmers bank after the order of final distribution was entered by the probate court. He was not bound by the adjudication of priority of garnishment liens as between the two banks. The order of the district court made on May 22, 1925, directing him to pay Anna F. Moore’s share of the estate to the Citizens bank, was an ex parte order, and was an unauthorized attempt to predetermine distribution by the probate court. (Vaughn v. Brown, 81 Kan. 1, 5, 105 Pac. 30; McCarthy Hardware Co. v. Foust, 118 Kan. 431, 235 Pac. 867.)
The order of the district court adjudicating priority as between the garnishments of 1923, did not bar the Farmers bank from claiming the fund under its garnishment of the administrator in 1925. That garnishment was effective because it occurred after the probate court had entered an order of final distribution.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
William J. Wiggins and his wife had three children. The wife died intestate owning 140 acres of land and money and notes in Wiggins’ hands amounting to $2,600. He made an oral adjustment and settlement with the three children by which he was to deed to each of them certain lands, subject to a life estate retained by him, and they were to relinquish to him their interest in an eighty-acre tract. Deeds were made out-for execution and delivery. Wiggins executed and delivered the deed to one of the children. Another of the children brings this action against him ásking specific performance of the contract, setting out in the petition the facts substantially as above stated. A demurrer to the petition was sustained and the plaintiff appeals.
The question presented is whether the execution and delivery of the deed to one of the three children was such a part performance as to take the contract out of the statute of frauds for the benefit of the others. The answer depends upon whether the contract is to be treated as an entirety, as contended by the plaintiff, or as three separate agreements, as the defendant claims. We agree with the trial court that the deal was essentially one involving three separate agreements, each made between the father on the one hand and one of the children on the other. The fact that the several agreements were made at one time does not affect their separate character. The children did not have a joint claim against their father. Each owned an undivided one-sixth of the land left by their mother. He was to deed to each a tract of land subject to a life interest. They were to relinquish to him their interest in a tract of which each owned an undivided one-sixth interest. The arrangement is not shown to have amounted to a settlement of all matters between the parties. The allegation that the three children agreed to relinquish to their father their interest in the eighty-acre tract does not in .our judgment imply a combined or united action and is not to be interpreted as meaning anything more than that each child agreed to relinquish his or her interest, and this whether or not the land, their interest in which they were to relinquish, was á part of that inherited from their mother. We think the father was at liberty to carry out the oral contract with one of the children, and still avail himself of the statute of frauds when performance was demanded by the others. We do not see that this course would work a fraud upon them or place them at any unconscionable disadvantage. Whether the arrangement between the father and his children be regarded as one contract or three, the father was at perfect liberty to deal with any of them singly, as he did with the one to whom he made the deed, without the consent of the others, who were therefore placed in no worse position by reason of the part performance of the general contract, if the transaction is to be regarded in that light.
The plaintiff cites a number of Kansas cases having some features in common with this, but as we see it, in none of them are the facts such that the decisions militate against the conclusion here reached.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction under the prohibitory liquor law and anticigarette law, on four counts for the sale of intoxicating liquor, on two for having it in possession, and on two for the sale of cigarette papers.
The defendant admitted selling compounds known as Old Monticello, Lyko and Hufflands, but contends that they are not classed as intoxicating liquors and are not presumed to be intoxicating, but, on the contrary, are commonly used and sold by druggists and kept for sale for medicinal purposes. He argues that the alcohol used in them was for preservative purposes; that the distinctive character and effect of intoxicating liquor was absent, and that they were not, therefore, within the purview of the statutes. There was evidence that both Old Monticello- and Hufflands contained eighteen per cent alcohol and Lyko twenty-three per cent, and that they were fermented liquors.
In State v. Kane, 114 Kan. 426, 429, 219 Pac. 281, it was said in the opinion:
“The fact that various tinctures, extracts and essences are manufactured and ordinarily sold for other purposes than as a beverage does not prevent their sale from being a violation of the prohibitory law, when in fact they are used as intoxicants and are found to be intoxicating liquors within the meaning of the statute.”
There was ample evidence in the instant case to sustain the general finding and verdict of the jury that the compounds were fermented liquors, and were purchased and used for beverage purposes in sufficient quantities to cause intoxication. Under the circumstances, their sale was a violation of the statute. (State v. Miller, 92 Kan. 994, 142 Pac. 979; State v. Wilson, 110 Kan. 131, 202 Pac. 860.)
On motion, the state elected to stand upon eight of the thirty-two counts charged in the information. The defendant contends that the state should have been required to say which particular transaction or transactions it relied upon for conviction. We are of the opinion that the state’s election was sufficiently definite. The election to stand upon specific counts indicated that the state relied upon evidence of the transactions bearing upon and supporting the allegations of these particular counts. The jury apparently had no difficulty in applying the evidence adduced to the counts designated by the state.
Complaint is made that the instructions referred to the numbered counts and failed to refer to the specific transactions which the state would rely upon for conviction. The contention is not meritorious. The evidence with reference to and supporting particular counts which were enumerated in the instructions given by the court was sufficiently clear that the jury undoubtedly had no difficulty in making the proper application.
Other complaints have been considered, but we find no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action for damages was brought on behalf of a small boy who fell into an abandoned cesspool located on a town lot belonging to defendant.
The facts were these: Defendant owned a house and lot in Kansas City. Formerly there was situated at the rear of this lot a privy which set over a brick vault or cesspool some twelve or fifteen feet deep and five or six feet in diameter, narrowing to an opening at the top about two feet across and rising a foot or more above, the level of the ground. The privy had been removed and the opening into the vault was covered by some rotten boards, on top of which were some stones, trash and brush which made a.pile about three feet above the ground. This vault was three feet from the rear of defendant’s lot and from an alley which bounded it. The lot was not fenced nor were the limits of the lot and alley definitely marked. Three small plum trees grew around the vault. Their branches came within three feet of the ground, and one of these trees was growing between the alley and the vault.
On September 17, 1924, the plaintiff’ and two other small boys were passing through the alley on their way from school. Plaintiff stepped on the rotten covering and fell into the vault. His companions gave the alarm, and a man put a ladder into the cesspool and the lad climbed out covered with filth añd suffering from various injuries caused by his fall.
Defendant’s demurrer to plaintiff’s evidence was sustained and the jury discharged.
Various errors are assigned, the chief of which pertains to the trial court’s ruling on the demurrer.
The plaintiff was six years old and the other two eyewitnesses to the mishap were eight years old — all too young to testify — so it was not shown by direct evidence how plaintiff happened to get on top of the rotten covering. There was, of course, no want of evidence nor any substantial dispute that the plaintiff fell into the cesspool and was hurt. Nor was there any material dispute about the lay of the ground, the character of the vault, its projection above ground, the rotten covering, rocks and brush piled over it, nor much controversy touching the distance from the vault to the alley line or traveled way. Did these facts and the inferences in favor of plaintiff’s claim which might be deduced therefrom establish a prima fade case of culpable liability against the owner of the town lot on which this abandoned vault or cesspool was located?
Plaintiff relies upon that line of cases which fastens liability upon the owner or person in possession and control of property who permits an unguarded pitfall or excavation to exist on his premises so close to a public way or frequented path that persons passing by fall into it by unconscious or inadvertent deviation from the traveled way. There is a well-settled rule of law to that effect. (De Tarr v. Heim, 62 Kan. 188, 61 Pac. 689; Bennett v. Bank, 100 Kan. 90, and citations, 163 Pac. 625.) See, also, note to Railway Co. v. Ray (Okla.), in L. R. A. 1918A, 843, 849, 850 et seq.; and note to Hildebrand v. Hines (Pa.), in 14 A. L. R. 1393, 1397 et seq.
But it does not appear how the present case can be brought within that rule of law. Plaintiff's petition alleged:
“The dome or top of said cesspool extends above the ground so that the opening is about eighteen inches higher than the level of the yard, and said dome is covered over with large rocks, and with trash and debris.”
The evidence was to the same effect except that one witness for plaintiff estimated that the top of the vault protruded “about twelve inches above the level of the ground.”
While it was not shown how the boy got past the plum tree which grew between the alley and the cesspool, and was not shown how he scrambled upon or into the brush heap which overlay the rocks and thus got upon the rotten platform, the facts which were shown, together with the circumstances and surroundings, make it too clear for cavil that plaintiff did not get there by mere inadvertence or unconscious deviation from the alley or frequented path thereabout. Nor is this a-case where the judgment needs the application of the “single misstep” rule to sustain it. If the question of defendant’s liability depended upon the mere matter of distance — one step or several steps — from the alley where the margin of the public way or frequented path was not clearly defined, then, indeed, there would have been a jury question presented. It is not suggested that this heap of rocks and brush on this vault constituted an attractive nuisance, and no case of inadvertent or unconscious stepping aside from the traveled way was established, and so the demurrer to plaintiff’s evidence was properly sustained.
Error is assigned on the trial court’s refusal to permit the two eight-year-old eyewitnesses to testify. The examination given them to settle the question whether they were capable of receiving' just impressions of the pertinent facts or of relating them truly (R. S. 60-2805) was not very satisfactory; and, in any event, the question of their capacity to give testimony was one for the determination of the trial court. (40 Cyc. 2200.) In Lee v. Railway Co., 67 Kan. 402, 404, 73 Pac. 110, it was said:
“As to this matter the trial court, in seeing and hearing the witness, had means of reaching a just decision that are wholly wanting here.”
Furthermore, if the evidence of the eight-year-olds had been received, it would have disclosed nothing which would have tended to fasten liability on defendant. The boys would have testified that, as they came through the alley, plaintiff espied a glass jar in the heap of brush and débris piled over the vault covering and that he said: “I want to get one of those fruit jars for mamma,” and that plaintiff “started toward one of them on top of the pile of rubbish, which was just a short distance from the edge of the alley, and when he had taken a step or such a matter from the big electric light pole, that stands there, he [witness] saw his little brother disappear into the pile of rubbish. On investigation he found that he had fallen into a hole in the ground filled with dirty stuff."
Certainly that testimony, if admitted, would not have established a liability against defendant for plaintiff’s mishap, under the rule of law invoked by plaintiff.
The appellee had another defense to this action based upon the rule applied in De Tarr v. Heim, supra, which held that the occupier and not the landlord would be the party liable in this case if liability existed, since it was shown that the property on which the vault or cesspool existed was and had been in the exclusive possession of tenants for several years. But there is no case here which needs the application of that rule for its determination.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was one by the holder of promissory notes to recover on them and to foreclose a chattel mortgage securing them. The jury found plaintiff was not a holder in due course, and allowed an offset. Plaintiff appeals. The principal question is whether plaintiff was a holder in due course.
The petition contained seven causes of action, six on the notes and a seventh on the mortgage. The notes were dated January 1, 1922, were for $575 each, and bore interest at the rate of eight per cent per annum, payable semiannually. They matured and were purchased on the following dates: °
No. 1, due July 15,1922, purchased July 10,1922.
No. 2, due September 15,1922, purchased March 17, 1922.
No. 3, due October 15, 1922, purchased September 15, 1922.
No. 4, due November 15, 1922, purchased September 15, 1922.
No. 5, due May 15,1923, purchased September 15, 1922.
No. 6, due June 15, 1923, purchased September 15,1922.
Plaintiff was a holder in due course of note No. 2. Judgment upon it in favor of plaintiff is not contested, and henceforth, except for the purpose of an illustration, it may be regarded as out of the case. When note No. 1 was purchased, semiannual interest on it was due .and unpaid. When the remaining notes were purchased, note No. 1 was due and unpaid, and semiannual interest on all the notes was due and unpaid.
The petition alleged that, at the time the notes were executed,-and for the purpose of securing them, and as part of the same transaction, the maker of the notes executed and delivered to the payee the chattel mortgage. The chattel mortgage described fifteen notes, aggregating $8,150, and provided that, if default should be made in the payment of the total sum, or any part thereof, or any interest thereon, the whole amount should become due and payable at once. Therefore, when plaintiff acquired the notes, they were all overdue. (Stanclift v. Norton, 11 Kan. 218, 222; McMillan v. Gardner, 88 Kan. 279, 128 Pac. 391, and cases cited in the opinion; 34 A. L. R. 848-861.)
The jury returned the following special finding of fact:
“Did the plaintiff acquire said notes with knowledge that the chattel mortgage set forth in plaintiff’s seventh cause of action by its terms accelerated the •payment and made all of said notes due by reason of the nonpayment of interest? A. Yes.”
Plaintiff Contends this finding was not sustained by the evidence. •On redirect examination, plaintiff’s cashier testified as follows:
“Q. Now, you testify that you had examined a lot of these mortgages. Did you examine this particular mortgage in suit? Did you ever read that over -or see it? A. No, sir.”
Disregarding this answer, as the jury appears to have done with the approval of the trial court, the evidence warranted the inference of fact expressed by the finding. The result is, plaintiff was not a holder in due course, as that term is defined by the negotiable instruments law:
“A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that’ he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in .good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” (R. S. 52-502.)
Plaintiff relies on the amendment to section 5 of the negotiable instruments law adopted by the legislature of 1917. The section now reads as follows, the matter inserted by amendment being italicized:
“An instrument which contains an order or promise to do any act in addition to the payment of money is not negotiable. But the negotiable character of an instrument otherwise negotiable is not affected by a provision which: (1) Authorizes the sale of collateral security in case the instrument is not paid at maturity, or in case the security should depreciate in value, or. in case the holder for reasonable cause deems himself insecure; or (2) authorizes a confession of judgment if the instrument be not paid at maturity; or (3) waives the benefit of any law intended for the advantage or protection of the obligor; or (4) gives the holder an election to require something to be done in lieu of payment of money; or (5) provisions or agreements in concurrent writings or mortgages given to secure payment oj such instruments, but nothing in this section shall validate any provision or stipulation otherwise illegal.” (R. S-52-205.)
The amendment did not render invalid contracts in mortgages-that maturity of the instruments described should be accelerated on stated conditions, and maturity of notes sued on was accelerated by-virtue of the provision of the chattel mortgage, notwithstanding the-amendment to the statute. The amendment was confined to original section 5 of the negotiable instruments law, and took no cognizance-of original section 52 (R. S. 52-502). It will not be assumed the amendment by mere implication worked a fundamental change in. the definition of holder in due course. Such a change would produce-anomalous results. A purchaser could take paper as not overdue- and dishonored, with all the privileges of a holder in due course, and immediately sue upon it as matured by an acceleration provision of' the mortgage. The court concludes the amendment takes its place-with the other subdivisions of section 5 (R. S. 52-205) relating to form and interpretation as affecting negotiability, and does not modify R. S. 52-502. Applying this interpretation of the amendment, the negotiability of note No. 2 was not affected by the fact, that the chattel mortgage, read with the note, accelerated maturity of the entire series of notes. When plaintiff purchased note No. 2,. none of the series was due by virtue of the provision of the mortgage- or otherwise, and plaintiff became a holder in due course. All" the other notes had' been matured by the provision of the chattel mortgage when plaintiff purchased them. Plaintiff knew of the provision in the mortgage; it could have brought suit on the notes immediately; and it was not a holder in due course.
Plaintiff complains that certain damages found by the jury were speculative. They do not affect the result. The provision of the contract of sale of the machinery which relieved from liability for delay, related to delay in operation after the machinery was set up, and in making changes. The guaranty contained in the contract did not require return of defective machinery, but gave the purchaser privilege to demand replacement of defective parts.
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The opinion of the court was delivered by
Hopkins, J.:
This is a companion case to Botello v. Tharp (ante, p. 229). This appeal is from a judgment of the district court dismissing an appeal from the probate court. The probate court had refused to remove the defendant as guardian and refused to require it to render an accounting. The cases were tried together in the district court on the same evidence and consolidated for hearing in this court. The decision in the former case is controlling here.
The judgment it affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, the indorsee of a promissory note signed by the defendant, sued to recover on that note. One of the defenses was that the note, with the knowledge of the plaintiff, had been given for a patent right, and the note did not have any words indorsed on it indicating it had been so given. Another defense was that the plaintiff had sued another party for recovery on the note and that the action thus commenced was an election of remedies inconsistent with the present action. Judgment • was rendered in favor of the defendant, and the plaintiff appeals.
We quote from the statement of facts by the plaintiff as follows:
“Fred G. Hager and Clara Hager executed and delivered to W. T. Hale their certain promissory notes aggregating $26,000 and secured the same by a certain real-estate mortgage on lands in Edwards county. These notes and mortgages were given to Hale in part payment of a patent right, sold by Hale to Hager, and that fact was not noted upon said notes or mortgage. W. T. Hale transferred said notes and mortgage to E. L. Yuncker, plaintiff below. Thereafter and on April 24, 1919, and before maturity of said notes and mortgage, E. L. Yunckers sold, assigned and indorsed said notes and mortgage to J. G. English, defendant below, for $21,500, of which amount $5,000 was paid in cash. For the balance due, J. G. English executed to E. L. Yuncker three promissory notes, two' of which were for $5,000, each payable in 30 and 60 days, respectively, which notes were paid by defendant to plaintiff. The third note was for $6,500 payable on the 24th day of July, 1919, with interest at the rate of ten per cent per annum from maturity. This note was not paid, and this action was instituted in the district court of Stafford county to enforce collection of the same.. At the time Yuncker sold and indorsed the notes and mortgage of $26,000 to English, both Yuncker and English knew that said notes and mortgage had been given by the Hagers in part payment of a patent right.”
The court made findings of fact and conclusions of law as follows:
“1. I' find that the defendant gave to the plaintiff a note for $6,500 and that said note is past due and unpaid.
“2. I find that the consideration for said note was for the part payment for an alleged patent right, and that the words, ‘Given for a patent right,’ were not inserted in said note, nor were any words inserted therein to show that the note was given for a patent right.
“3. I find that the plaintiff herein instituted an action in the district court of Ford county, Kansas, against the Macksville State Bank of Macksville, Kan., on the identical note referred to herein, and that he brought said action with full knowledge of his rights, and I find that he elected to bring his action against the Macksville State Bank of Macksville, Kan.
“4. I find that the plaintiff afterwards dismissed said action in the district court of Ford county, Kansas.
“5. I find that the note in suit is void for the reason that there was not inserted in said note, ‘Given for a patent right,’ or any words to that effect.
“6. I find that plaintiff by bringing his action in the district court of Ford county, made an election which is a bar to suing this defendant in the district court of Stafford county.
“7. I find that both the plaintiff and defendant knew that the alleged consideration for the note in suit was part payment for a patent right.
“Conclusions of Law.
“1. I find that the plaintiff cannot recover.
“2. Judgment should go for the defendant for costs.”
Section 57-102 of the Revised Statutes reads:
“Any person who may take any obligation in writing for which any patent right, or right claimed by him or her to be a patent right, shall form a whole or any part of the consideration, shall, before it is signed by the maker or makers, insert in the body of said written obligation, above the signature of said maker or makers, in legible writing or print, the words, ‘Given for a patent right.’ ”
The succeeding section of the statute provides a penalty for failing to comply with section 57-102.
A note given for a patent right must contain the words, “Given for a patent right,” or it is invalid and cannot be enforced. (Bolte v. Sparks, 85 Kan. 13, 116 Pac. 224.) The plaintiff, when he obtained the $26,000 note, knew that it had been given for a patent right. He was therefore not a holder in due course because he had notice of the infirmity in the note. A note given to cover margins in a board of trade transaction or speculation in the price of wheat, no actual sale or delivery being intended, is void as between the parties. (Hutchins v. Stanley, 88 Kan. 739, 129 Pac. 1180.) It was there held that a new note given in exchange for the first one is a renewal of the former obligation, and the consideration for the new note is the same as the consideration for the old one, and that no recovery can-be had thereon. That rule was followed in Gregory v. Williams, 106 Kan. 819, 822, 189 Pac. 932, where this court said:
“Lack of consideration for a note, fraud or duress in procuring it, or illegality of consideration therefor, may be shown in defense in an action thereon between the parties thereto. The same defenses may be urged in an action on a renewal note. (Water Power Co. v. Brown, 23 Kan. 676; Hutchins v. Stanley, 88 Kan. 739, 129 Pac. 1180; Carey v. Myers, 92 Kan. 493, 509, 142 Pac. 957; Ross & Waldo v. Holman, 97 Kan. 331, 333, 155 Pac. 37.) The reason for the rule allowing such defenses against a renewal note cannot be other than that the debt remains the same.”
Under the statement of facts made by the plaintiff and the findings of the court, the plaintiff cannot recover because section 57-102 of the Revised Statutes was not complied with.
It is not necessary to discuss the election of remedies.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action involved the construction of a will and the interests of certain persons concerned therewith, and the rights of certain persons holding under leases executed by persons acting in different capacities under questioned authority derived from the will.
The controlling facts were these: One D. D. Kellogg, late of Cowley county, died testate on January 19, 1918. His will was duly probated; his estate was settled and its administration closed. By his will the testator devised a life estate to his wife, Anna D. Kellogg. She died in November, 1918. The further terms of the will, with which we are presently concerned, relate to the interests conferred by the will upon two granddaughters of the testator, Vera Mable Davis and Pearl Bessie Bursack, and of a certain incompetent kinsman, Willie Kellogg, for whose welfare the testator made provision as follows:
“4. It is my further will and bequest that after the death of my said wife, Anna D. Kellogg, that my granddaughter, Vera Mable Davis, shall have and hold the northwest quarter of section 29, township 32, range 3' east of the 6th p. M., and also the 27 acres I now own in the northwest quarter of section 29, township 32, range 3 east, all in Cowley county, Kansas, for and during her natural life, subject, however, to the conditions and provision that she and my other granddaughter, Pearl Bessie Bursack, shall be charged with the care and keeping and maintenance of Willie, commonly known as Willie Kellogg, so long as he may live, and should my said granddaughters fail to suitably maintain and care for said Willie Kellogg, or should he become a public charge, it is my will that upon the petition of any person to the district court of Cowley county, Kansas, with proof of such fact, that said court shall appoint some suitable person as trustee for said Willie, commonly known as Willie Kellogg, and such trustee shall have the right to receive the rents, income and profits from said real estate, and maintain and provide for the said Willie, so long as he may live.
“5. It is my further will and bequest, that the fee title to the real estate described in the preceding paragraph of this my will, upon the death of my said granddaughter Vera Mable Davis, and upon the death of said Willie, commonly known as Willie Kellogg, shall vest and become the property of the children born of the body of the said Vera Mable Davis, share and share alike.
“6. It is my further will and bequest, that after the death of my said wife, Anna D. Kellogg, that my granddaughter, Pearl Bessie Bursack, shall have and hold the following-described real estate in Cowley county, Kansas, to wit, all the property I own in what was originally known as blocks 40 and 41 in the old townsite of Kellogg, also all the property I own in the northwest quarter of section 21, township 32 south, of range 3 east of the 6th p. m., together with the appurtenances for and during the natural life of my said granddaughter, subject, however, to the condition and provision that she and my other granddaughter, Vera Mable Davis, shall be charged with the care, keeping and maintenance of Willie, commonly known as Willie Kellogg, so long as he may live, and should my said granddaughters fail to suitably maintain, provide and care for said Willie Kellogg, or should he become a public charge, it is my will that upon the petition of any person to the district court of Cowley county, Kansas, with proof of such fact, that said court shall appoint some suitable person as trustee for said Willie, commonly known as Willie Kellogg, and such trustee shall have the right to receive the rents, income and profits from said real estate, and maintain and provide for the said Willie so long as he may live.
“7. It) is my further will and bequest that the fee title to the real estate described in the preceding paragraph of this my last will and testament, upon the death of my said granddaughter, Pearl Bessie Bursack, and upon the death of the said Willie, commonly known as Willie Kellogg, shall vest and become the property of the children born of the body of the said Pearl Bursack, share and share alike.”
Pursuant to these provisions of the will the granddaughters, Mrs. Davis and Mrs. Bursack, on the death of their grandmother, entered into the enjoyment of their estates; and Mrs. Davis, at least, has hitherto complied in good faith with the obligation imposed by her grandfather on her and her sister Mrs. Bursaclc, to suitably maintain, keep and care for Willie Kellogg. What gave rise to the legal questions which culminated in this lawsuit was a certain activity in the demand for oil and gas leases in the neighborhood where the lands thus devised were located. On the assumption that she held a mere life estate in the 187 acres devised by paragraphs 4 and 5 of her grandfather’s will, and that her three sons, Karl, Frank and Herbert, held the remainder in fee, and on the further assumption that Willie Kellogg held a present interest in the property, the plaintiff, Mrs. Davis, set about the project of fixing up an acceptable lease of the land for oil and gas development. To accomplish that -purpose, she- instituted an ex parte proceeding in the district court, pursuant to which she was appointed trustee for Willie Kellogg (and trustee for her own unborn children), and in another proceeding instituted in the probate court she was appointed legal guardian for her minor sons. Both courts granted her power to lease the property for oil and gas exploration and development; and thereupon she and her husband on their own behalf and her one adult son Karl and his wife, and she, also, as guardian for her minor sons Frank and Herbert and as trustee for Willie Kellogg, executed a lease of the NW%, sec. 29, T. 32 S., R. 3 E., to W. C. Stout, dated December 21, 1923, for a fixed term ending February 9, 1928, and conditionally thereafter.
Later, the nature of her grandfather’s devise of the lands in section 29-32-3 became the subject of critical examination of lawyers, who concluded that the devise to Mrs. Davis from her grandfather was that of an estate tail, and that the ex parte proceedings in the district court and the guardianship proceeding in the probate court were superfluous and ineffective. Proceeding on the latter conclusion and advice of her counsel, Mrs. Davis executed a deed of general warranty conveying the property to her husband, so as to break the entailment. Her husband and she then executed a new lease of the same premises (NW1^, 29-32-3) to the same grantee, W. C. Stout. This lease was dated March 2, 1925, and like its predecessor was to endure until February 9, 1928, and thereafter upon conditions. , Following the execution of this lease and subject thereto, on the same date, the husband of plaintiff reconveyed the property by general warranty deed to Vera Mabel Davis, in fee simple.'
All these facts are stated at elaborate length in the pleadings of the litigants. The trial court appointed competent counsel as guardians ad litem for the minor children of Mrs. Davis, and also for Willie Kellogg, incompetent. No material issue of fact arose at the trial. The controversy turned chiefly upon the legal significance attaching to the language of the will which granted a devise for life to Mrs. Vera Mable Davis and then provided that upon the death of Vera and upon the death of Willie Kellogg “the fee title . . . shall vest and become the property of the children born of the body of the said Vera Mable Davis, share and share alike.” [Italics ours.]
The judgment of the trial court was incorporated in a journal entry covering some fifteen pages, and included therein are informal findings of fact, some of which were that at the time of the probating of her grandfather’s will, Vera Mable Davis had two- children, Karl and Frank, and after its probating another child, Herbert, had been bom to her, and at the time of the trial, July 7, 1925, she was forty-two years of age, and that Karl, Frank and Herbert were and are the sole and only children born of her body. Another finding reads:
“That pursuant to the terms of said will she and her sister, Pearl Bessie Bursack, have taken care of, kept and maintained Willie Kellogg up to the present time, and that the plaintiff is now caring for, keeping and maintaining him, and that within the last thirty days Pearl Bessie Bursack, defendant herein, has abandoned said Willie Kellogg, and is not at this time either caring for, keeping or maintaining said Willie Kellogg, or contributing thereto.”
In its findings and judgment the trial court also took note of the ex parte proceedings which Vera Mable Davis had instituted and in which she had been appointed trustee for any possible issue which might yet be born to her, and trustee also for Willie Kellogg, and took note, also, of the guardianship proceedings in the probate court, .and of the subsequent resignation of Mrs. Davis of such trusteeship and guardianship.
The trial court concluded that the will of her grandfather did not create an estate tail in Vera Mable Davis, and that she had no right to convert her interest in the devised property into an estate •fee simple. Other features of the findings and judgment will be noted later in so- far as they may need attention.
The errors assigned mainly question the correctness of the trial court’s decision that the will of D. D. Kellogg did not create an estate tail in his granddaughter, Vera Mable Davis. Unless the pro vision for the maintenance, keep and care of Willie Kellogg, which the testator imposed upon his granddaughter, affects the question, the trial court’s decision is manifestly incorrect. This court has repeatedly recognized that the erection of estates tail is not at variance with the public policy of this state concerning land tenures. In Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131, it was said:
“Estates tail resulting from judicial interpretation of the statute de donis conditionalibus (13 Edw. I, c. L, June 28, 1285) as modified by subsequent statutes and judicial decisions were introduced into this country at the time of its colonization with other parts of English jurisprudence, and still exist in this state.” (Syl. ¶ 1. See, also; Busey v. Stochhoff, 88 Kan. 729, 129 Pac. 1135; Wiggins v. Powell, 96 Kan. 478, 152 Pac. 765; Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280; Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884; Gardener v. Anderson, Trustee, 114 Kan. 778, 227 Pac. 743, and 116 Kan. 431, 227 Pac. 743; Allen v. Pedder, 119 Kan. 773, 241 Pac. 696; Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306.)
And since this court has repeatedly explained how easily estates tail may be converted into estates in fee simple to serve the necessity or convenience of the parties concerned and on the initiative of those parties, the legislature has been content to refrain from transforming such estates into estates in fee simple by legislative decree —as so many states have done — following the lead of the state of Virginia in its act of October 7, 1776. (2 Va. Code [1887] § 2421.) Nor can there be any doubt that a devise of an estate to one person for life with the remainder in fee to the children of that life tenant’s body does erect an estate tail in the life tenant. (Ewing v. Nesbitt, supra, and citations; Gardner v. Anderson, supra, and citations; Allen v. Pedder, supra, and citations.)
Does the provision in the will of D. D. Kellogg for the maintenance, care and keeping of Willie Kellogg operate to prevent the creation of an estate tail in Vera Mable Davis? No part of the title is vested in him. The cost of his maintenance, care and keeping is not primarily cast upon the estate. It is cast upon the granddaughters, individually and personally, and only upon their default does it devolve as a charge upon the estates respectively devised to them. So long as Vera Mable Davis continues to discharge the personal .obligation as she has loyally done hitherto, the estate bestowed upon her and the children of her body is not affected in the slightest degree. And in the event she should make default (as apparently her sister has done, according to the findings of the trial court, but with which we have no concern in this lawsuit), the title to the estate devised to Vera and the children of her body will not be affected thereby, but only “the rents, income and profits” thereof, during the lifetime of Willie Kellogg.
The conditional right of Willie Kellogg, through the instrumentality of a trustee, to the rents, income and profits, on the personal default of Vera, is a potential burden on the estate, but it is a condition subsequent which does not suspend the vesting of title — and will not defeat the title which is vested — in Vera for life, with remainder in fee to the children of her body.
In Jackson v. Knapp, 297 Ill. 213, it was said:
“An. estate may be devised subject to a condition annexed to the devise whereby the estate shall commence, be enlarged, or defeated upon a performance! or breach of the condition. The devise may be either upon a condition precedent or subsequent, and thei’e is no technical form of words by which the-character of the condition is to be determined. If the condition is precedent the estate does not vest unless and until the condition has been performed, but if it is subsequent the estate vests and upon a breach of the condition there is a right of reentry by the person entitled, whether by limitation over, or, in the absence of such limitation, by the heir-at-law, who may take advantage of the breach of the condition. The distinction depends upon the connection in which the words are used, and in case of doubt the courts favor a construction making the condition subsequent. If the performance of the condition does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may as well be done after as before the vesting of the estate, or if from the nature of the act and the time required for its performance it is evident that the intention of the parties was that the estate should vest and the devisee perform the act after taking possession, the condition is subsequent.” (p. 217. See, also, Woodward v. Walling, 31 Ia. 533; Roberts v. Crume, 173 Mo. 572; Drace et al. v. Klinedinst, Appellant, 275 Pa. St. 266, 25 A. L. R. 1521; Ecroyd v. Coggeshall, 21 R. I. 1, 79 A. S. R. 741 and note.)
So it seems to this court that while the potential interest of Willie Kellogg in the rents, income and profits of this estate is and will continue to be one which a court of equity will protect, if and when the need therefor may arise, that interest has no effect on the title (Matter of Gray, 27 N. D. 417, and note thereto in L. R. A. 1917 A, 617 et seq.), and so the rule of law which characterizes a devise of land to one person for life, with remainder in fee to the children of that person’s body or bodily heirs, or issue, or similar designation which shows the purpose of the testator or grantor to avoid the effect of the statute of descents and to found a line of succession to his property of his own particular choosing, is applicable to the case at bar. (Kolmer v. Miles et al., 270 Ill. 20.)
In Wright v. Gaskill et al., 74 N. J. Eq. 742, the testator’s will provided:
“I give and bequeath unto my nephew John Gaskill and my niece Elizabeth P. Gaskill, children of my brother William Gaskill, all the farm and plantation whereon I now reside, together with all the stock, farming implements, household goods and kitchen furniture at the time of my decease, to them or the survivor of them for and during the term of their natural life or lives of them for the said John and Elizabeth P. Gaskill, and after their death to their lawful issue, in fee simple absolute by their paying out of the rents, issues and profits of said farm and plantation aforesaid the sum of four hundred dollars yearly and every year unto my beloved wife Sarah Gaskill during the full term of her natural life in semi-annual payments, that is to say two hundred dollars every six months. And I do hereby order and direct that the farm and plantation aforesaid shall be held chargeable and subject to the payment of the aforesaid bequest made and given to my said wife, and that my said wife shall have the use and occupation of the said house upon the farm and plantation and all my household goods and kitchen furniture for her own use so long as she may remain upon said farm.” (p. 743.)
The court said:
■‘We are dealing with a devise of land, and the words in the will give an estate to the testator’s nephew and niece for their lives and the life of the survivor, and, after the death of the survivor, ‘to their lawful issue, in fee simple absolute.’ Certain conditions which Were performed during the lives of both of the life tenants were charged upon the lands. This devise is of a life estate in the first devisees, with a remainder to their lineal descendants in indefinite succession, and creates an estate tail at common law.” (p. 744.)
It is suggested, however, that appellant is estopped to claim an estate tail under the will by the ex parte proceedings she instituted in the district court for the appointment of a trustee for Willie Kellogg, and by the proceedings in the probate court for the appointment of a guardian for her minor children. To this there are at least two answers. Regardless of the question of estoppel, the plaintiff could not create in herself an estate tail. The testator made a certain testamentary disposition of his property which the law itself characterizes and denominates an estate tail. And no act of Vera Mable Davis was necessary to its creation. But as tenant in tail she has the right and privilege under our law to respect and preserve the entailment for the benefit of the children of her body, and she also has the right and privilege to break the entailment by a conveyance. Perhaps it is not too much to say that it is because estates tail can be so readily transformed into estates in fee simple that our legislature has permitted them to be created in this state. (Gardner v. Anderson, supra; 1 Washburn on Real Property, §189.) More over, estoppel by judgment or by participation in judicial proceedings does not arise unless the litigant sought to be estopped has assumed inconsistent attitudes in court, or where adverse parties or others have been misled to their prejudice by such diverse attitudes of the litigant. (21 C. J. 1135.) Here no person has been misled or prejudiced by appellant’s attitude in the proceedings concerning the trusteeship for Willie Kellogg or in the guardianship proceedings in the probate court; nor in critical analysis can it be said that there is any real inconsistency in the attitude of appellant in those prior proceedings and her position here. In those proceedings she was particularly concerned with the possibility of legal claims'which might arise in behalf of her unborn children, and those of Willie Kellogg, and in the guardianship matter in the probate court she was concerned with the possible claims or rights of her minor children. It was because of her commendable precautionary solicitude on behalf of these, and not because of selfish concern for her own rights nor in contention therefor, that prompted her course of conduct in those proceedings. Under substantially similar circumstances, where a person has acted in ignorance of his legal rights, but where no one was misled or prejudiced thereby, it is generally held that estoppel does not arise. (Miller v. Ahrens, 163 Fed. 870; Wright v. De Groff, 14 Mich. 164; Meyer v. Meyer, 106 Miss. 638; Hays v. Bright, 58 Tenn. 325; Black Diamond Collieries v. Deal, 150 Tenn. 474; Estate of Brundage, 185 Wis. 558; Mullins v. Shrewsbury, 60 W. Va. 694.)
A final matter urged on our attention in this appeal concerns the ruling of the trial court touching the validity of the leases of 1923 and-1925 granted by Vera Mable Davis and others. The trial court-held the first lease valid, on the assumption that all the interest she had in the leased property was a naked life estate, and that the lease she made of it in her own behalf and in behalf of Willie Kellogg as trustee, and in behalf of her minor children as guardian, was the only proper and binding contract of lease which could have been effected. An erroneous course of reasoning does not always nor necessarily condemn the conclusion arrived at therefrom. (Scattergood v. Martin, 57 Kan. 450, 46 Pac. 933; Saylor v. Crooker, 97 Kan. 624, 156 Pac. 737; 2 Dec. Dig. pp. 51, 52.) The fact that precedent to the execution of the lease in 1923 there was a lot of superfluous and ineffective preliminaries — concerning a trusteeship for Willie-Kellogg and the unborn, possible issue of Mrs. Davis, and a guard ianship for her minor children, and the sanction of the district court and the probate court to the execution of the lease — certainly did not vitiate that lease so far as the grant thereof by Yera Mable Davis individually was concerned. The tenant in tail could make a valid lease of the premises during the existence of her tenure. (Gannon v. Peterson, 193 Ill. 372, 55 L. R. A. 701; Hillis v. Dils, 53 Ind. App. 576, 581; Tiedeman on Real Property, 3d ed., §36 et seq.) And, indeed, it is hardly possible to build up any rational theory on which it could be held that the lease of 1923 to Stout executed by Vera and husband individually (and by Vera as trustee and guardian) was invalid, but that such a lease executed by her husband and herself in 1925 to the same lessee was valid. Moreover, there is a manifest want of equity in Stout’s attitude. He was the lessee of. both leases. He sold the lease of 1923 to L. H. Wentz by an instrument in which he warranted himself to be its lawful owner and that he had good right to convey and assign it. Estoppel is a principle of equity which applies when it ought to apply, and certainly Stout is estopped to question the rights of his own grantee, who purchased those rights in reliance on Stout’s written instrument of assignment with its representations and recitals, and when Stout, also, still retains the consideration paid therefor. So far as concerns the judgment of the district court in favor of L. H. Wentz, it is eminently correct, and it is affirmed. In other'respects the judgment is reversed, and the cause is remanded with instructions to enter judgment for appellant, decreeing that the property devised to her for life with remainder in fee to the children of her body created an estate tail in appellant by operation of law, and decreeing further that the contingent interest of Willie Kellogg in such estate does not affect nor postpone the vesting of title and does not affect the title, but that the provision made in Willie Kellogg’s behalf is^a valid and' binding condition subsequent which potentially runs with the land, to be enforced if and when the necessity therefor may arise, regardless of the status of the title and irrespective of who may be, ad interim, the title holder, i
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The opinion of the court was delivered by
Bxjrch, J.:
Defendant was convicted of manslaughter in the fourth degree, and appeals.
On the evening of June 25, 1925,. while defendant was driving his Cadillac automobile eastward on the paved highway between Abilene and Chapman, he collided with a Ford automobile. The Ford was standing on the south side of the highway, with its front toward the east. The left wheels were on the pavement, and the right wheels were on the dirt shoulder at the side of the pavement. D. J. O’Connor was standing in front of the Ford. The impact of the Cadillac car drove the Ford forward, and O’Connor was injured. He was taken to a hospital in Abilene, and it was found he had sustained fracture of the right kneecap and a broken fibula. The next day he was placed under an anesthetic and an operation was performed on the knee. On the following day he developed symptoms of beginning pneumonia, and on July 4 he died of pneumonia. An autopsy disclosed the pneumonia was of traumatic origin.
The information charged defendant operated the Cadillac car with culpable negligence, in a manner disclosing violation of the statute regulating operation of motor vehicles on public highways outside of cities, and charged the wounding and the death of O’Con-nor were caused by such negligence. The court instructed the jury as follows:
“The offense charged against the defendant in the information is known as manslaughter in the fourth degree, and is defined by the laws of Kansas as follows: ‘Every other killing of a human being by the act, procurement or culpable negligence of another which would be manslaughter at common law and which is not excusable or justifiable or is not declared to be murder or manslaughter in some other degree, shall be deemed manslaughter in the fourth degree. The punishment provided for this offense is that the person so convicted shall be punished by confinement at hard labor for a term not exceeding two years or by imprisonment in the county jail not less than six months.’
“3. There is included within this offense charged in the information another and minor offense which is defined and for which punishment is prescribed by the laws of the state of Kansas in the following words: ‘If any person shall be maimed, wounded, or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement, or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had resulted, the person by whose act, procurement or culpable negligence such injury or danger of life shall be occasioned, shall in cases not otherwise provided for be punished by confinement at hard labor not exceeding five years or in the county jail not exceeding six months.’
“4. This offense will hereafter in these instructions be referred to as unlawfully causing great bodily harm, as defined in section 21-435 of the Revised Statutes of the state of Kansas of the year 1923.
“5. To the major offense charged in the information and to the minor offense included within it, the defendant has entered his plea of not guilty, and there is thereby presented for your determination, first the question whether or not the defendant is guilty of manslaughter in the fourth degree; second, if not guilty of manslaughter in the fourth degree, whether or not he is guilty of the minor offense therein included, as hereinbefore defined.
“7. By the laws of this state it is made unlawful for a person to drive an automobile outside of a city or village on a public highway at a speed greater than forty miles an hour, or at a speed greater than is reasonable and proper, having regard for the traffic, and use of the road, and the condition of the road, or at a rate of speed such as to endanger the life or limb of any person thereon, and the driving of an automobile on a public highway in violation of any of the aforesaid provisions of law is culpable negligence. If, therefore, you find from the evidence beyond a reasonable doubt that on June 25, 1925, and at the place alleged in the information, the defendant was driving an automobile on a public highway in Dickinson county, Kansas, and with culpable negligence as alleged ran against a Ford automobile standing on said highway, causing said Ford automobile to lunge forward and to run against, upon and over D. J. O’Connor, whereby the said D. J. O’Connor was thrown with great force and violence upon the ground and received divers mortal wounds, bruises and contusions upon his body from which he thereafter died, and that the same would not have resulted excepting such negligence, then and in that event you will find the defendant guilty of manslaughter in the fourth degree.
“8. It is not necessary that the state show the defendant intended any of the injuries claimed to have resulted from the collision mentioned. It is a general principle that one who, without intention to take life, causes the death of another by his own unlawful act, is criminally responsible for the killing. It is a sufficiently accurate statement for any purposes of yours that if one who causes the death of another without an intention to take life and while engaged in doing some act in itself unlawful, the killing will be manslaughter.
“9. If you find from the evidence beyond a reasonable doubt that on June 25, 1925, and at the place alleged in the information, the defendant, while operating an automobile on a public highway in Dickinson county, Kansas, with culpable negligence as alleged ran against an automobile standing on said highway, causing said automobile to lunge forward and run against, upon and over D. J. O’Connor, then and there being, whereby the said D. J. O’Connor was then and there thrown to the ground with great force and violence, and by reason of such culpable negligence of the defendant received great bodily harm as described in the information or his life was thereby endangered, and that such results would not have occurred except for such negligence, and that he did not die therefrom, and that if death had ensued as a result therefrom the defendant would have been guilty of the major offense charged therein; then and in that event you will find the defendant guilty of the minor offense defined in paragraph 3 of these instructions, to wit: ‘of unlawfully causing great bodily harm, as defined in section 21-435 of the Revised Statutes of the state of Kansas of the year 1923.’ ”
Defendant contends the statute creates two distinct offenses, manslaughter by culpable negligence (R. S. 21-420), and wounding or inflicting great bodily harm by culpable negligence (R. S. 21-435); the latter is not involved in the former; and the information did not contain a count charging wounding by culpable negligence. If defendant’s contention were sound, he suffered no prejudice. He was convicted of manslaughter.
Eight persons, five in the Cadillac and three who were standing about the Ford, were injured, and defendant urges the instruction relating to great bodily harm focused attention on that subject, and led the jury to find he caused O’Connor’s death, when O’Connor was merely wounded, and died of disease and not of his wounds. No complaint is made that the evidence adduced at the preliminary examination did not furnish a basis for an information charging manslaughter. It was essential the information for manslaughter should charge that O’Connor was wounded and that he died of his wounds. Proof of his 'wounding necessarily included all the distressing details of the accident, whether the pneumonia of which he died was traumatic or postoperative, and the court is of the opinion the conditions for determining that question were precisely the same as they would have been if the court had not instructed the jury concerning the lesser offense. The court is also of the opinion the offense of wounding by culpable negligence was included in the charge of manslaughter, and defendant would have had just cause for complaint if the court had not instructed with reference to it.
The statute required the court to state to the jury all matters of law necessary for their information in giving their verdict. Defendant contends this requirement was not met because the court did not define manslaughter at common law. The statute does not require any particular form of statement of the law (State v. Lynch, 86 Kan. 528, 531, 121 Pac. 351), and manslaughter at common law was sufficiently defined for any purpose of the jury by instruction No. 8. Defendant contends, however, the definition given in instruction No. 8 was not accurate because it did not state that the killing must be the result of the unlawful act, and left the jury to infer it was sufficient if the killing merely accompanied the unlawful act. The contention is hypercritical. There was but one act to which the instruction could refer, and besides that, the definition was applied beyond possibility of confusion or misunderstanding to the charge contained in the information, in the latter half of instruction No. 7.
Defendant contends the court erred in not defining culpable negligence. The kind of culpable negligence charged in the information was defined in instruction No. 7, and other kinds were not material.
A certain record was offered in evidence by the state, and was rejected by the court. The incident did not proceed far enough for the jury to be influenced by it. On cross-examination of defendant as a witness in his own behalf, the incriminating entry on the record was read to him, and he admitted he made it. Subsequent introduction in evidence of the record itself did no harm, and the evidence was competent for the purpose of affecting defendant’s credibility as a witness. . The jury were properly instructed with reference to the use they might make of the evidence.
The important issues of fact were whether defendant was guilty of culpable negligence in the operation of his car, and whether O’Connor died of the wounds inflicted on him. Cause of death was well established by expert medical testimony, which was not rebutted. The testimony bearing upon the other issue was conflicting. It would serve no useful purpose to recount the testimony. The verdict was sustained by sufficient evidence.
The judgment of the district court is affirmed: | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover certain payments on the purchase price of a tract of land where the sale failed of consummation, and the main question was whether such failure was due to the fault of the buyer or the seller.
Briefly the facts were these: Defendant was the equitable owner of ten acres of land near Topeka. In January, 1922, he listed it for sale with one Bert Rucker. Rucker, as agent of defendant, leased it to Allee Brothers at $25 per month for one year, expiring March 1, 1923, and in the written contract of lease, in consideration of $50 paid by the lessees, Rucker gave them an option to purchase it, viz.:
“Tenth. Additional Stipulations. It is further agreed between the parties to the within lease, that the second parties have the option to buy the within-described land any time during the life of this lease, at the price of $5,000.”
Allee Brothers entered into possession, but the contract of lease was not recorded.
In July, 1922, defendant, through another real-estate agent, W. T. Dawson, contracted to sell the ten acres to plaintiff for $4,500, of which $200 was paid down as earnest money, and the balance, $4,300, was to be paid on or before July 15, 1922, in cash.
The written contract of sale provided that the property was to be conveyed—
“In fee simple, clear of all encumbrances whatever (except as hereinafter mentioned) by a general warranty deed, and an abstract showing good merchantable title.....Sale is subject to lease now in force, second party to get rent from date of delivery of deed.
“It is understood and agreed that the deed to said property is to be executed at once and placed in escrow with W. T. Dawson & Co., and all deferred payments (except encumbrances assumed) are to be paid through said W. T. Dawson & Co. . . . And in case of the failure of the said party of the second part to make either of the payments, or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by him sustained. . . .
“It is hereby agreed that time is the essence of this contract, and all payments must be made promptly in accordance with the terms hereof.”
It was orally understood between plaintiff and defendant’s agent that a considerable part of the purchase price plaintiff had agreed to give was to be raised by a mortgage on the property; but when plaintiff applied for a loan the title was subjected to a careful scrutiny by the loan company and by that time the lease to Allee Brothers had been recorded and it showed an option to purchase held by Allee Brothers. This caused the application for the loan to be rejected. At one time and another plaintiff paid to defendant on the purchase price the sums of $200, $163, and $500 — $863 in all, but since a loan could not be procured and the sale consummated as the parties intended, plaintiff demanded a return of his money. It being withheld, this lawsuit followed.
The issues between plaintiff and defendant were defined in lengthy pleadings. Allee Brothers were impleaded and set up their option.
Plaintiff’s evidence tended to show that the Allee Brothers’ option was concealed from him, and that defendant’s agent, W. T. Dawson, did not know of that option, and the contract between plaintiff and defendant for the purchase of the property was executed a week or two prior to the recording of Allee Brothers’ lease in which the option privilege was included. Part of the evidence tended to show that defendant himself did not know that his first agent, Rucker, had inserted the option privilege in the contract of lease, and when he did hear of it he repudiated it. A witness testified:
“Q. What did Mr. Cunningham say about that? A. Mr. Cunningham says: ‘I don’t know anything about that; I want to repudiate this paper.’ ”
The cause was tried by the court without a jury. Extended findings of fact and conclusions of law were made. Part of these read:
“8. On or about the 1st day of July, 1922, the plaintiff, J. F. Custenborder, entered into a written contract with the defendant Alex Cunningham, through his duly authorized agent, W. T. Dawson, by the terms of which plaintiff agreed to purchase from the defendant the land heretofore described. . . .
“9. Prior to and at the time said contract was entered into, said W. T. Dawson, the duly authorized agent of Alex Cunningham, represented to plaintiff, for the purpose of inducing him to enter into said contract, that Alex Cunningham was the owner of the land, had a good merchantable title thereto, and was able to furnish an abstract of title showing a good merchantable title in him, by reason of which representation plaintiff was induced to enter into said contract. ...
“11. At the time of entering into the negotiations for the purchase of the tract in question, the plaintiff informed W. T. Dawson that he intended to raise part of the purchase price by procuring a loan upon the property in question and mortgaging the same as security therefor; that shortly after the execution of the contract of purchase Custenborder caused an agent of the Farm Mortgage Trust Company of Topeka, Kansas, to inspect the property for the purpose of procuring a loan, and the loan was approved subject to the approval of the title to the propei-ty. The title was examined by the mortgage company and certain requirements made.
“Later another application for a larger loan of $2,000 was made and the abstract of title brought down to date, and the title was again examined and it was found that it showed that the lease which had been placed of record by the Allees on July 21, 1922, contained an option to purchase the land. Thereupon the loan company refused to make the loan with the Allees’ outstanding option of purchase of record, and'suggested that a quitclaim deed be furnished by the Allees, which suggestion was not complied with. The loan company has refused to make the loan because -of the Allees’ option of purchase contained in the lease and their questionable rights thereunder, they also being in possession of the premises.
“12. Had the title to the premises been such that Custenborder could have procured the loan upon the land as intended, he would have been in a position to have completed the payments of the purchase price. He was willing and ready to do so, except that the title to the premises was clouded by the Allees’ option which prevented the completion of the loan.
“13. The court further finds that át the time the contract between the plaintiff and the defendant Alex Cunningham was executed, the plaintiff had no knowledge of the provisions in said lease concerning an option to buy, and that he had been informed at the time the contract was signed that the only rights that defendants, Roy Allee and F. C. Allee, had on said land were the rights of a tenant, and that the lease expired on March 1, 1923. That plaintiff exercised due diligence and made inquiry concerning the claims of Roy Allee and F. C. Allee and was unable to learn of their option to purchase until after his contract was executed. . . .
Conclusions of Law.
“4. That the defendant Cunningham being unable to convey a clear and marketable title to the premises on March 2, 1923, is not entitled to a forfeiture of the $863 paid to him by the plaintiff.
“5. That the plaintiff should recover from the defendant Cunningham the sum of $863, paid by him to Cunningham, who has had the use of said money, together with interest thereon at the rate of six per cent per annum from the date of payment, or $942.22.”
Judgment was entered accordingly. Defendant appeals, assigning several errors; but no question is raised touching the admissibility of the evidence of the collateral oral understanding between plaintiff and defendant’s agent Dawson that a considerable part of the purchase price which plaintiff was to pay for the ten acres was to be raised by a mortgage loan on the property.
To overturn the judgment it is argued in behalf of defendant that he bought the property subject to Allee Brothers’ lease. Quite true. But he did not know of the option in that lease which prevented his getting a loan on the property. The lease was not on record. Dawson, the agent who sold him the property, did not know of the option. There is evidence that defendant himself did not actually know of it, and that his first agent, Rucker, had inserted the option in the lease on his own responsibility. When confronted with the option in Allee Brothers’ lease, defendant said: “I don’t know anything about that; I want to repudiate this paper.” If defendant, the owner of the property and principal of Rucker, only acquired belated knowledge of this unrecorded option after plaintiff had contracted for the property, how can he reasonably contend that plaintiff could have learned about the option until it was put on record? The trial court’s finding (No. 13) is that plaintiff made diligent but unavailing inquiry touching the nature of Allee Brothers’ claim, and that finding was supported by evidence.
Defendant argues that the purchase and sale was to be a cash transaction. Quite true. But defendant had to cooperate to that end. He had to produce such a title as an ordinary mortgage company would loan money upon. That was the collateral understand ing between plaintiff and defendant’s agent. Plaintiff was ready, willing and able to- perform his part of the deal. Altogether he paid defendant $863, which was $663 more than he agreed to pay until a conveyance and title were forthcoming from defendant and until a substantial part of the purchase price could be borrowed by a mortgage on the property. Plaintiff had $1,800 in the bank, and gave defendant’s agent his check for that amount. So it would appear that the failure of the deal to go through promptly as a cash transaction was because defendant’s former agent Rucker had given an option on the property to Allee Brothers; and this not only prevented the borrowing of the money to complete the later transaction, but clouded the title so that defendant could not have performed his contract with plaintiff even if the latter had handed him the full purchase price in twenty-dollar gold pieces.
We note the negotiations between the parties for delay beyond the fifteenth of July, which was the date fixed in the contract for the purchase price to be paid. Those delays were of mutual advantage. Plaintiff did not want the bargain to fail; he wanted to get the property; he made various efforts and offers to that end; but these incidents all flowed from the fault of defendant, or were at least chargeable to him, since he could not produce a title upon which to procure the requisite loan as contemplated by the parties at the time the contract of sale was made.
Recurring to our initial observation: Since the evidence of the collateral understanding that part of the cash purchase price was to be raised by a mortgage was admitted without objection — at least no specification of error is based on its admission' — that understanding was as much a part of the contract as any other feature of it. The result is the contract failed through no fault of plaintiff, but altogether because of the defect in defendant’s title and the consequences flowing therefrom; and no court having due regard for either law or justice would permit defendant to keep the partial payments he has received from plaintiff under such circumstances.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
A motion for a rehearing is overruled, but these modifications are made in the opinion: The direction accompanying the reversal is changed from “with directions torender judgment for the plaintiff” to read “with directions to overrule the demurrer to the petition.” In a clause used in stating the contentions of the appellee with respect to the effect of the order for the payment of suit money, the words, “not having been embodied in the final judgment it ceased to be effective,” are changed to read: “Not having been embodied in the final judgment it was not entitled to recognition as a judgment of a foreign state under the full faith and credit clause of the federal constitution.” | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover on a “myself” negotiable promissory note given to the Associated Mill and Elevator Company for stock therein. The defense was that there was no consideration for the note and that the signature thereto had been procured by fraud. Judgment was rendered in favor of the plaintiff for the full amount of the note, and the defendant appeals.
The plaintiff, in its reply to the defendant’s answer, set out a copy of a contract entered into between the plaintiff and the Associated Mill and Elevator Company, as follows:
“Whereas, it is desired by the citizens of Gove county, Kansas, residing in and in the vicinity of Quinter, and by Associated Mill and Elevator Company that a reinforced steel and concrete modern grain elevator with a sufficiently large number of small bins to care for the various kinds and grades of grain grown in territory tributary to Quinter, Kansas, of a capacity of 100,000 bushels be erected at Quinter, Kansas, on or near the railroad right of way, and that the sum of one hundred thousand ($100,000) dollars be subscribed and paid by the citizens of such county residing in territory tributary to Quinter, Kansas, for shares of beneficial interest in-the company of the par value of one hundred ($100) dollars.
“Now, therefore, it is agreed by and between the Farmers State Bank of Quinter, Kansas, as trustee for subscribers for such shares, and subscribers who attach their name hereto or to duplicates hereof, or who become parties hereto by subscribing for such shares, first parties, and Associated Mill and Elevator Company, second party, as follows:
“Whenever the sum of $100,000 shall have been paid by subscribers- for such shares into the Farmers State Bank of Quinter, Kansas, for such shares, the Associated Mill and Elevator Company shall proceed with reasonable diligence to acquire a site for such elevator and will commence and prosecute to completion the construction and erection of such elevator at Quinter, Kansas, so that the same may be completed in time to receive the grain crops maturing after July l", 1921, strikes, lockouts, acts of Providence, conditions of war and of the elements excepted.
“Provided, however, that should the sum of $100,000 not be subscribed, then the capacity of such elevator to be erected shall have the same bushels capacity as the number of dollars subscribed.
“Of the amount subscribed 60 per cent shall be placed on deposit in the Farmers State Bank of Quinter, Kansas, and shall only be used in the payment of obligations incurred in obtaining a site, payment of bills for labor, material, insurance, plans and specifications, and like obligations incurred in the construction of such elevator and the equipment thereof ready for use.
“The second party shall approve the bills payable from such fund before they are paid, and the second party’s checks upon such fund shall only be paid by said Farmers State Bank upon the approval of such bills by the Associated Mill and Elevator Company or its representative.
“The remaining 40 per cent of funds derived from such subscriptions shall be delivered to the second party. Second party will give bond in the sum of twenty five thousand dollars that they will comply with the terms of this contract and erect such elevator in a good and workmanlike manner within the time limited, such bond to run to the Farmers State Bank of Quinter, Kansas, for thb benefit of all subscribers to such shares and to be deposited with such bank.
“The second party is to use every effort to begin the construction of such elevator at the earliest practicable date and to complete the same within the time limited.
“Whenever $50,000 of such subscriptions under this contract shall be paid in to said Farmers State Bank of Quinter, Kansas, the parties making such payments shall then be entitled to have issued and delivered to them the certificates for which they have subscribed and paid, and thereafter the division of such funds, 60 per cent to such construction fund in said bank shall be made and 40 per cent delivered to the second party, and thereafter, as such subscriptions continue, such division of funds shall be made weekly. All sums received from subscriptions over and above $60,000 shall be paid to the second party.
“In witness whereof, the parties hereto have hereunto signed their names this 11th day of November, 1920.
(Signed) Farmers State Bank,
By E..L. Wickizer, Cashier.
(Signed) Associated Mill & Elbv. Co.,
By H. C. Ntjnn, Its President.
(Seal) Paul Noble, Secretary."
There was evidence which tended to prove that E. L. Wickizer was the cashier of the plaintiff bank, and that Oliver Wiley was one of its directors and was a member of its discount board. The issues were presented to a jury which rendered a verdict in favor of the plaintiff and answered questions as follows:
“1. Did the plaintiff bank purchase the note in question before maturity, paying full value therefor? A. Yes.
“2. Did the plaintiff bank purchase the note in question in bad faith? A. No.
“4. Was the note in question obtained from the defendant by means of false and fraudulent representations? A. Yes.
“5. If you answer question' No. 4 Yes, then set out fully the false and fraudulent representations by means of which said note was so obtained. A. That Abercrombie gave Ruesehoff a contract witnessed by Wiléy and Wickizer, that he would repurchase said stock from Ruesehoff if defendant so wished, which he failed to do; that Ruesehoff was promised 8 per cent annually on the stock he purchased, which was not paid, and that the mill and elevator would be managed by a board of farmers, which was false.
“6. If you answer question No. 5 by setting out the false and fraudulent representations by which the note in question was obtained, then did the plaintiff bank at the time it purchased said note have any actual knowledge or notice of the making of such false and fraudulent representations? A. No. . . .
“8. Did Ruesehoff in buying the stock and giving his note rely on representations made by agents of the Elevator Co. which were false? A. Yes.
“9. ■ Do you find that E. L. Wickizer, cashier of the Farmers State Bank, was active in the promotion of the sale of stock of Associated Mill & Elevator Co. at and before the time of the execution of note in suit? A. Yes; but not as a representative of the Farmers State Bank of Quinter.
“10. Was Oliver Wylie a member of the board of directors and of discount board of plaintiff at and prior to the date of the note in suit? A. Yes.
“11. Did Oliver Wylie take an active part in the sale of the stock for which defendant’s note was given? A. Yes.
“12. Prior to the date of the transaction with the defendant, was it the practice of Abercrombie to make false representations to farmers in the vicinity of Quinter to obtain their notes for shares in the Associated Mill & Elevator Company? A. Yes.
“13. If you answer the above question Yes, then do you find that Wickizer knew of such practices at and before the purchase of the stock by the defendant, Ruesehoff? A. Yes.
“14. If you answer the foregoing question 13 Yes, then do you find that such knowledge was sufficient to constitute bad faith? A. Yes; but not on part of the bank.
“15. If you find that false representations, if any, of the ten items set out in instruction 11 were made, then when and how did defendant Ruesehoff learn that such representations were false? A. At the time he tried to redeem his note with his elevator stock, at the bank, about July, 1921.”
The defendant complains of the failure of the court to give the following instruction:
“4. You are instructed that the following representations recited in the answer of the defendant are material representations, and if such representations or any one of such representations were made to defendant for the purpose of procuring the note in suit, and if same or any one of such were false, then the plaintiff cannot recover unless you find it to have been an innocent purchaser, as elsewhere defined in these instructions, viz.:
“1. That the Associated Mill and Elevator Company was a corporation, organized under the laws of Kansas.”
In place of that instruction, the court gave the following:
“16. At the time of the sale of stock and giving of the note, the Associated Mill & Elevator Company was a common law trust or ‘Massachusetts trust,’ and as such was for some purposes a corporation under the constitution and laws of Kansas. It was not false representation if such company was referred to casually or loosely by its agents as a ‘corporation.’ ”
By the instruction given, the court said that the representation that the Associated Mill and Elevator Company was a corporation, if false, was not sufficient to avoid payment of the note. Under section 2 of article 12 of the constitution of the state, stockholders in such a corporation as it was alleged the Associated Mill and Elevator Company had been represented to be, would not be liable for debts of the corporation beyond the amount of stock owned by each stockholder. In Weber Engine Co. v. Alter, 120 Kan. 557, this court said:
“Under articles of association in form of declaration of trust, trustees and shareholders are individually liable for the association’s debts, notwithstanding attempted limitations of liability.”
The association there described was a “Massachusetts trust.” The personal liability of the members of a “Massachusetts trust” and the stockholders’ liability in a corporation are materially different, so far different that a representation to a prospective purchaser that the organization was a corporation, when in fact it was a “Massachusetts trust,” made the representation material; and, if false, it was such a representation as would defeat the note sued on in the hands of one not a holder in due course. The instruction requested should have been given; the one given did not correctly state the law.
Complaint is made of the failure of the court to give the following instruction:
“You are instructed that where false representations are made, resulting in inducing a person to execute a note, such person can set up such false representations as a defense, even though the party making such false representations believed the same to be true at the time of making them.”
In place of that, the court gave the following:
“If the agents of the company in disposing of stock to the defendant made any one or more of the foregoing ten representations, and if such representations were at the time untrue, and if such agent or agents knew at the time that such representation was untrue, or made such representation, in reckless disregard of its truth or falsity, and if the defendant relied upon such representation and purchased the stock in the company and gave his note on the strength of such representation, and would not have done so had he known the truth concerning which the representation was false, then you should find that such note was obtained by false representation and plaintiff could riot recover unless it bought the note in good faith as stated in instruction 6.”
Is it necessary that one making a false representation know that the representation is false or that the representation shall be made in reckless disregard of its truth before one making the representation is liable therefor? On this question this court said in Roome v. Petroletm Co., 111 Kan. 633, 208 Pac. 255:
“Damages caused by a representation, false in fact, but believed to be true by the one making the representation, may be recovered if made to induce the damaged person to part with his money or property, where the representation is made without actual knowledge of its truth or falsity.”
The court further said:
“False representations, if they result in damage to the person to whom they are made, are injurious whether made through honest or dishonest motives, and the damage sustained can be recovered if the representations are made with the intention of inducing the injured person to part with his money or property.” (p. 635.)
Other cases are there cited to support the rule there stated. The instruction requested should have been given.
The defendant complains of the failure of the court to give the following instructions:
“You are instructed that if the bank, through its board of directors, was interested in and took part in the promotion of the Associated Mill and Elevator Company by inducing other persons to purchase stock therein and by assisting in the sale thereof, then said bank will be presumed to know what statements and representations were being made by its associates in the matter of the promotion of the sale of such stock.
“You are instructed that if, for the purpose of procuring the account of Associated Mill and Elevator Company, the plaintiff bank, through its directors or officers, or both, made any arrangement with said Associated Mill & Elevator Company, whereby said company should turn said account to said bank in consideration of said bank assisting or lending its influence to the promotion of the sale of stock of said company, then such bank will be presumed to know what representations -were being made by those associated with it in carrying out such scheme.”
No instruction was given covering the issues embraced in this request. The bank by its contract with the Associated Mill and Elevator Company interested itself in building the elevator and was to be benefited during its construction;- and there was evidence which tended to prove that the bank would profit through the successful completion of the enterprise. In Farmers State Bank v. Brenneke, 118 Kan. 251, 255, 240 Pac. 395, the court said:
“It does not appear that the plaintiff bank received any benefit resulting from the fraud, if there was any, practiced on the defendant by those who procured the execution of the notes. If the plaintiff’s cashier made representations to the defendant concerning the purchase of the shares in the mill and elevator company, the plaintiff would not be liable unless it received benefit therefrom.”
If the bank took part in promoting the business of the Associated Mill and Elevator Company, out of which the bank was to be benefited, and if it loaned its influence to promote the sale of the stock of the company, the bank should not recover on a note given where it was obtained by false representations. If either of these requested instructions had been given, the verdict might have been other than it was and the answers to the questions submitted might have been materially different. They should have been given.
The judgment is reversed, and a new trial is directed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Bremen State Bank brought this action to recover upon three promissory notes executed by G. D. Loffler and E. Rosenboom, due at different dates and in the aggregate amount of $6,250. Both of the defendants resided in Nebraska, and personal service was not obtained upon either of them, i On the assumption that Rosenboom owned a tract of land in Washington county, steps were taken by the plaintiff to procure service upon him by publication and an attachment of his land. No service of any kind having been made upon Loffler, he was dismissed from the action and the case proceeded against Rosenboom alone. He made a special appearance, questioning the jurisdiction of the court and the validity of the attachment, but the court- determined that it had jurisdiction of the controversy and it also sustained the attachment. Afterwards Rosenboom filed an answer, and in the trial which followed a directed verdict was returned in favor of- the plaintiff for the amount claimed. Rosenboom appeals, and the errors relied on for reversal are the overruling of the motion to dismiss the action and the denial of the motion to dissolve the attachment.
It appears that the petition was filed on November 5, 1921, and a summons' issued, but personal service of the summons was not made upon the defendant. An order of attachment was issued the same day the petition was filed, and it was levied on the tract of land in Washington county, which was duly appraised at the value of $20,000. Not having obtained service of the summons, plaintiff proceeded to obtain service by publication, but it appears the first publication was not made until January 7, 1922, which was more than sixty days after the filing of the petition and the attachment of the real estate. Because of this delay it is contended that no action was in fact commenced, and that the attachment was nugatory. On March 3, 1922, defendant filed the following motion asking a dismissal of the action:
“And now comes Ekke Rosenboom, one of the above-named defendants, appearing specially and for the purpose of this motion only, and moves the court to dismiss the above-entitled action upon the ground and for the reason that said action is not rightfully brought in Washington county, Kansas, and said court is without jurisdiction to hear and determine said cause of action.”
On April 3,1922, the defendant moved to dissolve the attachment upon the ground that the allegations of the plaintiff’s affidavit for attachment were untrue. In that affidavit it was alleged that defendant was a resident of Nebraska, and that he had conveyed away and disposed of his farm in Washington county, being all of his property within the state, with the fraudulent intent to cheat and defraud his creditors and to hinder and delay them in the collection of their debts. The motion to dismiss the action was overruled and the attachment sustained, whereupon the defendant was given leave to answer, which was thereafter filed, and as already stated a judgment was rendered in favor of the plaintiff. It is insisted that the court erred in overruling the motion to dismiss because the first publication of notice was not made within sixty days from the time of filing the petition and the issuance of the attachment. It will be noted that the motion to dismiss does not point out the reasons why the action was not rightfully brought in Kansas, and it appears that in presenting the motion to dismiss, no evidence was presented to the court. The motion for dismissal because of a lack of jurisdiction gave the court no information of the grounds relied on for dismissal. It was the duty of the defendant to state specifically the grounds of his claim that the case was not rightfully brought in Washington county. Counsel for the plaintiff was entitled to know the grounds of the attack, and the court could not pass on the question with understanding unless the defects were definitely brought to its attention. When counsel fails to assist the couid by pointing out clearly the defects upon which he relies, or does it so obscurely that the court does not understand it, he is not in a position to complain of its ruling and is deemed to have waived his objection. The court can only review rulings made by the district court and cannot consider questions raised for the first time on appeal. To obtain a reversal of a ruling the record must show that the very matter presented here was distinctly brought to the attention of the trial court, and was so definitely pointed out that there is no misunderstanding of the question actually decided. A mere general objection is ordinarily not sufficient. There are many authorities supporting these views, among which are K. P. Rly. Co. v. Cutter, 19 Kan. 83; State v. Everett, 62 Kan. 275, 62 Pac. 657; Riverside v. Bailey, 82 Kan. 429, 108 Pac. 796; Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075; Brick v. Fire Ins. Co., 117 Kan. 44, 230 Pac. 309. Aside from the indefiniteness of the objection the counter abstract shows that the question actually presented to the court was not the failure to make publication within sixty days, but it was the point that the defendant, who was not a resident of the state, had no attachable property in the county, and that this was disclosed on the face of the affidavit for attachment. This contention was not based on the fact that there was a defect in the service, but that the defendant being a nonresident jurisdiction could only be obtained by the attachment of property belonging to him within the jurisdiction of the court. The defendant’s theory assumed that the defendant was properly sued if the land attached was his own. He had owned it and had gone through the form of transferring it and other property to his son, who executed a deed back to the defendant, which, however, was not to be placed on record, and the purpose as shown by his own evidence was to defraud creditors and defeat a recovery by the plaintiff.
The motion of defendant to dissolve the attachment because the allegations in the affidavit were untrue, was in the nature of a general appearance. That the transfer of the property was designed to secure it against attachment or execution was proven beyond dispute. It is the policy of the law that a debtor’s property shall be liable for his debts, and he cannot avoid liability by a fraudulent transfer. Such a transfer is void at law as well as in equity, and is to be treated as a nullity. While the legal title had been transferred by the defendant, he was the equitable owner of the property. An equitable interest in land is subject to attachment although the legal' title is held by another. (Bullene v. Hiatt, 12 Kan. 98; Shanks v. Simon, 57 Kan. 385, 46 Pac. 774; Parmenter v. Lomax, 68 Kan. 61, 74 Pac. 634.)
No reversible error is found in the record, and hence the judgment must be affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order setting aside an attachment, upon the ground that the property attached was the homestead of defendant. Plaintiff contends that the evidence did not justify the ruling. The sole question before, us is whether there was competent evidence sufficient to support the order and judgment of the court.
On October 24, 1924, plaintiff sued upon a promissory note, which had been executed by the defendant, E. Bird, and others. There was no personal service upon defendant Bird; but with the petition plaintiff filed an attachment affidavit and bond. An order of attachment was issued and a levy made upon a certain residence property in Sabetha, which was duly appraised. The defendant Bird filed his motion to dissolve the attachment upon the ground that the property attached was his homestead and as such was exempt from the levy of attachment, and for other reasons, which need not here be noted. This motion was heard, in-part upon affidavits and in part upon oral testimony. The evidence disclosed that defendant bought the property in question in 1907, talcing the title in his own name, and that he moved upon the property and resided there with his family, consisting of himself, his wife, and their minor son. Later he transferred the title from himself to his wife, but the family con tinued to reside there until the death of his wife, in 1916. Defendant-continued to reside upon the property. Later he married a second time, and he and his wife resided upon the property until the latter part of August, or early in September, 1924, about which time they sold their personal property and went to Pennsylvania, where the wife had relatives. The question turns upon whether defendant abandoned his homestead at that time. He testified that he had no intention of leaving Sabetha permanently, or of abandoning his homestead; that his absence was temporary in character, and that it was his intention to return to and occupy the property.
While there is some evidence to the contrary, there is much to support the contention of defendant. The court found that the property was the homestead of defendant at the time he and his wife went to Pennsylvania, and that the evidence did not show that the homestead had been abandoned. The correct rule, of course, is that occupancy as a residence is essential to the establishment and maintenance of a homestead. (Const. art. 15, §9; R. S. 60-3501.) In Quinton v. Adams, 83 Kan. 484, 488, 112 Pac. 95, touching this question it was said:
“The affairs of men are too varied to permit them to occupy their homesteads every moment of time. Duty, necessity or even pleasure may occasion extended absences which will not defeat the exemption. But it must appear from the circumstances that an absence in fact is genuinely temporary or the homestead privilege is lost. Otherwise the words of the constitution and statute which require not only occupancy, but occupancy as a family residence, would be deprived of all force.”
The question whether a homestead has been abandoned is one of fact to be determined by the trial court, in the light of the rule stated in the case last quoted, from the evidence produced at the hearing. (Smith v. McClintock, 108 Kan. 833, 196 Pac. 1089; Blitz v. Metzger, 119 Kan. 760, 766, 241 Pac. 259, and cases there cited.) It being a question of fact to be determined by the trial court, unless we can say, from an examination of the record, that there was no competent evidence to support the finding and judgment of the court, we cannot disturb it, and that cannot be said in. this case.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves the priority of mortgage liens. The facts summarized from the court’s findings are substantially as follows:
On May 28,1918, Charles F. Booth, the then fee owner, for a consideration of $3,680, conveyed a tract of land mentioned herein as the “Booth quarter,” by warranty deed to the defendant Marty, who, on the same date, gave Booth a mortgage back for $1,840. Both the deed and mortgage were recorded May 29, 1918. On September 24, 1918, Marty gave the defendant Rule a mortgage of $1,400 on the same and other lands, which mortgage was recorded the same date. On June 1,1920, Booth filed an action in Wallace county to foreclose his mortgage. Marty was the only defendant. Judgment was rendered June 23, 1920, and the “Booth quarter” sold October 6, 1920, at sheriff’s sale to the plaintiff Booth for the full amount of his claim. The redemption period was fixed by the court at eighteen months. On March 3, 1921, Marty gave the defendant Madden a mortgage of $4,100 on the “Booth quarter,” and other lands. On December 8, 1921, Marty gave the plaintiff bank a mortgage of $19,700.25 on the “Booth quarter” and other lands. These mortgages were all recorded within two or three days after they were given. No redemption was made or attempted at any time by either Rule, Madden or the bank, although their mortgages were recorded during all of the three months’ period from the end of the twelfth to the end of the fifteenth month of the eighteen-months’ redemption period fixed in the Booth foreclosure case, but on the last day of the eighteen-months’ redemption Marty, the fee owner, made redemption of said “Booth quarter” from the Booth foreclosure sale. Eleven days thereafter, April 17, 1922, Marty executed a mortgage to Mary A. Griswold on the “Booth quarter” for $3,000.
The present action was filed in April, 1924. Grace S. Waterman, Louise Blinn and Ethel Marean Stotts filed an answer claiming a first lien on this “Booth quarter” on the theory that they should be subrogated to the rights of Charles F. Booth under his foreclosure judgment and lien, for the reason that the money used by Marty in redeeming the “Booth quarter” from the Booth foreclosure sale was obtained by Marty from them through intentional and deliberate fraud.
The court concluded that the mortgage lien of neither Rule, Madden, nor the plaintiff, on the Booth quarter was extinguished by their failure to redeem from the sale under the Booth foreclosure, and that the mortgages of Rule, Madden and the bank, respectively, on the “Booth” quarter, are each and all valid and subsisting liens on said quarter, in the order of their priority, as they appear of record, and as hereinafter set forth; that the defendant Mary A. Griswold is not entitled to a first lien on said “Booth quarter” by reason of the failure of Rule, Madden and the bank, or any of them, to redeem the land as junior creditors; that the defendants, Grace S. Waterman, Louise Blinn and Ethel Marean Stotts, are not entitled to subrogation to the lien of said Charles F. Booth on said land.
“And it is therefore considered, ordered and adjudged by the court, that the defendants Rule, Madden and the plaintiff bank, and the defendant, Mary A. Griswold, each have valid and subsisting liens upon said 'Booth’ quarter in the following order of priority, to wit: First lien, James T. Rule; second lien, W. J. Madden; third lien, State Bank of Sharon Springs; fourth lien, Mary A. Griswold.”
The court ordered the sale of the land in question, along with the other lands involved in the action, for the payment of the several liens in the order of their priority, reserving until confirmation the matter of marshaling of assets.
Mary A. Griswold, Grace S. Waterman, Louise Blinn and Ethel Marean Stotts appealed. Mary A. Griswold has since died. The Hartford-Connecticut Trust Company has been substituted as executor of her estate. The record discloses the mortgages of Rule and Madden have been fully satisfied from the proceeds of the sale of lands, so that the controversy in this court is between the plaintiff bank, which was given a third lien, the Hartford-Conriecticut Trust Company, holding (in place of Mary A. Griswold) a fourth lien-, and Grace Waterman and others who claim subrogation because of having furnished the money with which Marty redeemed from the Booth sale.
The defendants contend that the lien of the bank was excluded because, as junior lien holder, it failed to redeem from the Booth foreclosure sale. They rely on two provisions -of the statute, viz.:
First:
“Any creditor whose claim becomes a lien prior to the expiration of the time allowed by law for the redemption of creditors, may redeem. A mortgagee may redeem upon the terms hereinafter prescribed before or after the debt secured by the mortgage falls due.” (R. S. 60-3441.)
Second:
“Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for.” (R. S. 60-3460.-)
The defendants argue that, under these sections of the redemption law, land once sold on execution at judicial sale cannot be again sold in satisfaction of an inferior judgment or lien under which the holder of such lien had a right of redemption upon nonexercise of the same right by the preferred classes mentioned in the statute. They cite and rely upon Case v. Lanyon, 62 Kan. 69, 61 Pac. 406; Gille v. Enright, 73 Kan. 245, 84 Pac. 996; Sigler v. Phares, 105 Kan. 116, 181 Pac. 628; Moore v. McPherson, 106 Kan. 268, 187 Pac. 884, and Johnston v. Wear, 110 Kan. 237, 204 Pac. 141. It is not necessary to analyze the cited cases in detail. They áre to be distinguished from the instant case. In each of them a junior lien holder sought, in some manner or form, to levy upon and sell the debtor owner’s right of redemption. It was held he could not do so. An entirely different situation is presented here. A debtor owner having a right of redemption enters into a new contract. After foreclosure and sale and during the redemption period, for an expressed consideration of $19,700 he mortgaged his right to redeem to the bank. The habendum clause of his mortgage conveyed all his interest.
“To have and to hold the same, together with all and singular, the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, forever.”
The mortgage was not less than an assignment or transfer of Marty’s interest. In effect, it was an implied warranty of title to his mortgagee, the bank.
The statute provides that—
“The right of redemption shall not be subject to levy or sale or execution.” (B.S. 60-3455.) But “The rights of the defendant owner in relation to redemption may be assigned or transferred, and the purchaser or assigns thereof shall have the same right of redemption as the defendant owner.” (B,. S. 60-3455.)
Had Marty executed a deed to the plaintiff there would be no question but that he conveyed all right, title and interest whatsoever he had in or to the property in controversy. Execution of the mortgage to the bank, after the sale in the' Booth foreclosure, conveyed his entire interest, including his right of redemption, which was not limited to 15 months from the date of sale. Marty could redeem Tyithin 18 months from the date of sale. The plaintiff’s mortgage included all of Marty’s interest, so plaintiff could likewise redeem; and when he afterwards redeemed, it was for the benefit of his mortgagee (the plaintiff). Where the owner of real property, after foreclosure sale thereof and during the redemption period, assigns, transfers or mortgages all of his right, title and interest therein, including his right to redeem, he will not be heard later to say that his grantee or mortgagee has no interest therein. The owner (mortgagor) in this instance conveyed or encumbered his entire interest to the plaintiff. The plaintiff stepped into his shoes, as it were. Any interest acquired by Marty, after execution of the mortgage to the bank, inured to the benefit of the bank, and the subsequent mortgagees acquired no right in excess of the rights of their mortgagor. •
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Harold Lucky asserted a claim against E. F. Rush for the refusal to carry out an oral contract for the purchase from him of a quantity of corn. William. Byerly asserted a like claim against Rush. Byerly orally assigned his claim to Lucky in order that both claims might be prosecuted in one action, Lucky to account to Byerly for the proceeds recovered. Lucky sued upon both claims and recovered a judgment on both, from which this appeal is taken.
The defendant contends that under the circumstances stated the cause of action based on his contract with Byerly could not be maintained by Lucky, because Byerly and not Lucky was the real party in interest. He recognizes the rule that the holder of the mere naked legal title may ordinarily sue upon a claim without having any beneficial interest therein (Manley v. Park, 68 Kan. 400, 75 Pac. 557, and later cases), but regards that situation as arising only where a writing has been executed evidencing a transfer of title. Byerly was a witness in the present case and testified that he had assigned his claim to the plaintiff. The defendant was thereby protected as effectually against any demand on the part of Byerly as though a written assignment had been made. No conditions exist suggesting any way by which substantial injustice might result from permitting the adjudication of the controversy between Byerly and the defendant in an action brought by Lucky upon an oral assignment, and we see no reason for reversing the judgment because of Byerly being the person ultimately interested in its collection.
The defendant also complains of the allowance of interest upon the claims sued on, invoking the rule that interest before judgment is not allowed as such upon a claim for unliquidated damages. (Evans v. Mosely, 84 Kan. 322, 114 Pac. 374.) The case was tried without a jury. The controversy was wholly over the question of the defendant’s liability. No evidence was introduced by him upon the issue of the amount of damage, which was largely or wholly a matter of calculation if the plaintiff’s evidence was given full credit. The attention of the district court does not appear to have been directed to the question whether interest should be allowed. None was allowed as a separate item, and the amount entering into the judgment is very small. The grounds on which a new trial was asked were erroneous rulings on questions of law and because the decision was wholly contrary to the evidence. Under these circumstances we think the present judgment need not be disturbed.
The contention is also made that the evidence does not support the verdict; but we think it presented a fair question of fact.
The case of Bearly v. Rush involves the same legal questions.
The judgments are affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to cancel an administrator’s deed on the ground that the real estate attempted to be conveyed was a homestead. It was brought on behalf of four minors by Lus Castor, their grandfather, as their next friend. The defendants prevailed, and plaintiffs appeal.
The facts, substantially told by the court’s findings, are as follows:
The court finds that Fred Apolonis Botello, a Mexican, departed this life on November 7,1920, in the city of Hutchinson; that his wife had died prior to his death; that he left surviving him four children, aged respectively eleven, six, four and three years; that Fred Apolonis Botello was born in Mexico, and when a child was brought by his parents into the United States, and for approximately twelve years prior to his death was a resident of Reno county; that all of the children (the plaintiffs) were bom in Hutchinson; that Fred Apolonis Botello at the time of his death was the owner in fee simple of the property in controversy and was living upon and occupying it with his children at the time of his death, and he had no other place of residence; that the Fontron Loan and Trust Company of Hutchinson was, on November 24, 1920, appointed administrator of the estate of said Fred Apolonis Botello, deceased, and qualified as such administrator; that on said date the Fontron Loan and Trust Company was also appointed guardian of the estate of said minor children by the probate court of Reno county, and that said company duly qualified as such guardian; that the Snyder Lumber Company had a claim against the estate of said Fred Apolonis Botello, deceased, for the sum of $372.13 for lumber and material sold and furnished to him during his lifetime, for the purpose of making improvements upon said land, and said lumber and material so sold and furnished were used for the erection of improvements upon such real estate; that the Snyder Lumber Company made proof of its claim in the probate court, and same was allowed as a claim against the estate; that the administrator petitioned for the sale of the property to pay the debts of. the deceased remaining unpaid, and that there was insufficient personal property for the purpose of paying said claims; that there was not sufficient personal property to pay the claim of the Snyder Lumber Company, and that the said property in controversy was sold, pursuant to an order of the probate court, to Snyder, for the sum of twelve hundred dollars, and an administrator’s deed was executed by the administrator and approved by the court; that notice of said sale was given as provided and ordered by the probate court; that the said proceedings were regular in all respects, and that the probate court had full and complete jurisdiction of the parties and the subject matter.
The plaintiffs contend that the property in question was their homestead, and that the probate court was without jurisdiction to sell it. Defendants contend that the probate court had jurisdiction to sell the property to satisfy claims for improvements even though it were a homestead; that the sale by the probate court was regular in all respects and conveyed good title; also that plaintiffs could not inherit through their alien father, and are therefore not in position to question the title of defendants.
The Snyder claim was one for materials and supplies furnished for improvements on the premises in controversy. It was allowed by the probate court and placed in class five. It was not improper for the claim to be so classed. The claim had not been reduced to judgment during the lifetime of the deceased, nor was it a claim that could have been properly placed in the other classes designated by the statute (R. S. 22-701). Placing it in class five deprived it of none of its force. Its owner still was entitled to have even the homestead sold for its payment. In Hurd v. Hixon & Co., 27 Kan. 722, it was held that—
“There is no homestead exemption as against obligations contracted for the erection of improvements thereon.
“A judgment rendered upon an obligation contracted for the erection of improvements on a homestead is a lien on all the real estate of the judgment debtor, including the homestead, and if there be no personal property, such homestead may be sold to satisfy the judgment. [Nichols v. Overacker, 16 Kan. 54, 59; Greeno v. Barnard, 18 Kan. 518.]” (Syl. ¶¶ 1, 2. See, also, King v. Wilson, 95 Kan. 390, 148 Pac. 752.)
Fudge v. Fudge, 23 Kan. 416, presented a somewhat similar question. Adam Fudge was the owner of property which he occupied with his family as a homestead at the time of his death. After his death his widow and children continued to occupy the property as a homestead. During his lifetime Fudge and his wife executed a note and mortgage upon the homestead. After his death the holder of the note and mortgage sought foreclosure in the probate court. This was refused, but the amount of the note was allowed as a claim against the estate. Thereafter the administrator sold the homestead for the payment of the claim. The question arose, “Did the probate court have authority to sell the homestead for the payment of the claim?” This court held that—
“The probate court has jurisdiction to order the sale of the family homestead upon regular proceedings by the administrator, when it appears that all other property of the estate has been exhausted, and that there still remain unpaid claims allowed against the estate of those classes for payment • of which the homestead is not exempt from sale.
“Such jurisdiction is not destroyed, nor such sale avoided, by the fact that some of the claims thus allowed and unpaid were improperly allowed, and were not collectible out of the homestead, or by the fact that the court made an order thereafter improperly distributing the proceeds.” (Syl. ¶¶ 1, 2.)
Plaintiffs contend that since the property was sold for twelve hundred and fifty dollars to pay a claim of three hundred and seventy-two dollars, that the balance of the proceeds was wrongfully used in the payment of other claims. Wrongful application of the proceeds would not affect the validity of the sale.
“Whether any other claims were properly chargeable against this land, or properly allowed against the estate, and whether the probate court ordered an improper distribution of the proceeds, is entirely immaterial. If there was one claim for which the court had jurisdiction to sell, that would sustain the sale.” (Fudge v. Fudge, supra, p. 418.)
A contention that the sale by the probate court was not legal on account of an invalid notice cannot be sustained. (See Taylor v. Hosick, Adm’r, 13 Kan. 518.)
Complaint that the guardian made no defense to the sale and did not protect the interest of the minors cannot be sustained— first, because it appears that the guardian had no valid defense to the claim; and, second, the failure of the guardian to make a defense did not invalidate the sale (Fudge v. Fudge, supra); nor would the failure of the guardian to protect the interest of the minors in the proceeds of the sale affect the title of the purchaser to the property at the sale unless fraud or collusion were shown. Another reason why plaintiffs cannot prevail is that their father was an alien, and, in the absence of federal treaty or controlling statute, an alien can neither take land himself by descent nor so transmit it to others. No treaty with Mexico is shown by the record. In Johnson v. Olson, 92 Kan. 819, 821, 822, 142 Pac. 256, it was said in the opinion:
“Originally aliens and citizens were upon an equality in Kansas so far as the inheritance of property was concerned. The constitution provided that: ‘No distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment or descent of property.’ (Bill of Rights, § 17, Compiled Laws, 1885, § 99.)
“At the general election in 1888 this provision was stricken from the constitution and in its place a provision was inserted providing, among other things, that: ‘The rights of aliens in reference to the purchase, enjoyment or descent of property may be regulated by law.’ (Bill of Rights, § 17, Gen. Stat. 1909, § 99.)
“It is a settled principle of the common law that there can be no inheritance by, through or from an alien.”
An alien can neither take nor cast upon others the title to real, estate. His alienage raises a barrier through which title does not pass. (Smith v. Lynch, 61 Kan. 609, 60 Pac. 329; State v. Ellis, 72 Kan. 285, 83 Pac. 1045; Cramer v. McCann, 83 Kan. 719, 112 Pac. 832; Lessee of Levy et al. v. McCartee, 6 Pet. 101, 8 L. Ed. 334; Blythe v. Hinckley, 180 U. S. 333, 45 L. Ed. 557; Jones V. Jones, 234 U. S. 615, 58 L. Ed. 1500; Beavan v. Went, 155 Ill. 592, 31 L. R. A. 85.)
While the real estate in controversy was the property of Fred Apolonis Botello during his lifetime, it did not descend to his children, on account of his alienage. A contention by the plaintiffs that the provisions of R. S. 22-1315, 22-1316, allow them to take the property in question is not tenable, because of failure of Fred Apolonis Botello to make a declaration of his intention to become a citizen.
We conclude that the sale of the property in controversy by the probate court was regular, that the title was transferred to the defendant Snyder, and that the plaintiffs, as heirs of their alien father, were not in position to assert title in themselves.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injury. The trial court sustained a demurrer to plaintiff’s evidence. Plaintiff filed a motion for a new tidal, which was overruled. Plaintiff has appealed both from the order sustaining the demurrer and the order overruling her motion for a new trial. The defendant, the Southwestern Utilities Corporation, of Delaware, owned ordinary oil and gas leases on land owned by the plaintiff and on adjoining land owned by another. It had caused to be drilled wells which were producing gas upon each of the tracts of land. The gas produced by it was sold at the wells to the Southwestern Gas Company, a corporation. This company laid pipe lines from the several wells upon the leases above mentioned, through which it conveyed the gas to market. On the day in question, servants and employees of the Southwestern Gas Company were excavating on one of the leases above mentioned for the purpose of laying a pipe line to one of the gas wells, and in doing so were blasting rock with dynamite. Plaintiff and her son, driving one horse to a buggy, were passing along a road through her land on their way to town. They were about one hundred yards from the place where the blasting was being done when the dynamite was exploded. Plaintiff’s horse was frightened at the sound of the explosion and broke loose from the buggy. Plaintiff was either thrown from or jumped from the buggy and sustained injuries which form the basis of the action. The negligence complained of was that the workmen did not give warning that the dynamite was about to be exploded. The trial court sustained the demurrer, for the reason, among others, that the evidence showed no negligence on the part of the Southwestern Utilities Corporation, of Delaware, the sole defendant in the case. The first question before us is, was that ruling correct? We must hold that it was. The defendant in this case had nothing to do with the laying of the pipe line, nor with the blasting. The persons performing that work were not servants or employees of defendant. Appellant argues that inasmuch as defendant had the lease upon the premises it was liable for the negligence of any other person, firm or corporation it permitted to come upon the premises to do anything which might be done under the lease. With this contention we cannot agree. Certainly if the owner of the lease contracted with a well driller to drill a well by the foot, or upon any other terms, the lessee would not be liable for the negligence of the employees of such driller.
The evidence disclosed that the Southwestern Utilities Corporation, of Delaware, owned 70 per cent of the capital stock of the Southwestern Gas Company; that one of the officers of the Southwestern Utilities Corporation was an officer of the Southwestern Gas Company; that the main office in Kansas of the Southwestern Utilities Corporation was in the same building and on the same floor with the main offices of the Southwestern Gas Company; that the Southwestern Utilities Corporation sold the gas it produced from the wells on leases held or operated by it at the wells to the Southwestern Gas Company; that the Southwestern Gas Company piped and marketed the gas, and after paying all expenses of conducting its business, paid 70 per cent of its net profits to'the Southwestern Utilities Corporation. From these facts it was argued by appellant that the Southwestern Gas Company was simply the distributing agent of the Southwestern Utilities Corporation, and that this relationship made the Southwestern Utilities Corporation responsible for negligence of the servants and employees of the Southwestern Gas Company. In support of this Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, is cited. That case does not sustain appellant’s position. Here the Southwestern Utilities Corporation had no authority, under the evidence, to direct and control the time, manner or means of executing the work then being done. It did not employ, pay or discharge the workmen. They were not employees or servants of the Southwestern Utilities Corporation. Appellant also cites State, ex rel., v. Flannelly, 96 Kan. 372, 154 Pac. 235, and State, ex rel., v. Litchfield, 97 Kan. 592, 155 Pac. 714, in support of an argument that the Southwestern Gas Company was the agent for the purpose of distributing gas of the Southwestern Utilities Corporation, but in those cases the producing company did not part with title to the gas at the wells, as is the case here. In the case before us the Southwestern Utilities Corporation sold the gas at the wells and was paid for it on the measurement there made. It was no longer the owner of the gas, and'the Southwestern Gas Company, conveying and marketing the gas, was acting for itself and not for the Southwestern Utilities Corporation. Appellant points out that because of its ownership of a part of the capital stock of the Southwestern Gas Company, the Southwestern Utilities Corporation had certain rights in selecting directors and other officers of the Southwestern Gas Company, and received 70 per cent of its net profits; but these are no more than the rights of a stockholder in any corporation. This conclusion makes it unnecessary for us to determine another interesting question in the case, and that is whether any negligence on. the part of the employees of the Southwestern Gas Company was shown.
After the court sustained a demurrer to plaintiff’s evidence she filed a motion for a new trial. It has been previously determined in this court that the ruling of a trial court upon a demurrer to the evidence is a ruling upon a question of law, and that a motion for a new trial, under the statute, is neither necessary nor proper (Schubach v. Hammer, 117 Kan. 615, 232 Pac. 1041); but since a court, exercising its ordinary judicial functions, independent of statute, may at any time during the term at which a judgment is rendered sustain a motion addressed to his judicial discretion to set aside or modify the judgment rendered, it was proper for the court to consider the motion in that light. In reviewing the ruling of the court on such a motion, we determine only whether the court abused its discretion in overruling the motion. Upon the hearing of this motion, .plaintiff offered record evidence tending to show the relations between the Southwestern Utilities Corporation, of Delaware, and the Southwestern Gas Company. This evidence upon that question added but little to the testimony received at the trial. The showing, if anything, emphasizes the separate functions of the two companies and furnishes no reason for holding that the trial court abused its discretion in overruling the motion.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued for a divorce on the ground of extreme cruelty. The defendant denied the allegations of plaintiff’s petition and asked for divorce on the ground of gross neglect of duty. In his answer, he set up a cause of action against the plaintiff in which he asked compensation for services rendered by him for the plaintiff on her property for a period of seven years at the rate of $5,000 a year. Judgment for divorce was rendered in favor of the plaintiff. No relief was granted the defendant on his cause of action against the plaintiff. The defendant appeals.
The court made extensive findings of fact, among which were the following:
“(24) That during all of his married life, the defendant has been addicted to the use of profane language, and on numerous occasions became angry, and used profane language extensively in the home, and in the presence of the plaintiff, and on a few occasions cursed her, and called her ‘A God-damn son of a bitch.’
“(25) That from the time shortly subsequent to their marriage until the date of their final separation, plaintiff and defendant, from time to time, engaged in violent quarrels, and on one occasion, about the year 19191, the defendant attempted to choke the plaintiff; on another occasion about the year 1919, threw a hair brush at the plaintiff, and on another occasion about the year 1921, struck her.”
“(27) That during the time the parties lived on the farm the quarrels and disagreements continued, and on or about the first day of September, 1922, the plaintiff rented a house in the city of Liberal and moved into the same, intending at the time to separate from the defendant, but shortly after she moved to town, the defendant also moved to the same house, and the plaintiff consented to resume her marital relations with him, and they continued to live together as man and wife until the 5th day of October, 1923, the expenses of the household being paid entirely by the plaintiff, and the quarrels and profanity growing more frequent and severe.
“(28) That about the latter part of August, 1923, the plaintiff and defendant became engaged in a violent quarrel, and in the yard adjacent to the residence occupied by them in Liberal, the defendant, in anger, and in a tone sufficiently loud to be heard by the lady sleeping in the adjoining house, threatened to beat the ‘God-damn shit out of the plaintiff,’ and pursued about the yard, apparently, attempting to strike her.
“(29) That about the first of September, 1923, the plaintiff'concluded that she could not live in peace and harmony with the defendant, and concluded to separate from him, and entered into negotiations with him for the purchase of a surrender of the lease upon her land (farm) held by him, and as the result of such negotiations it was agreed between the parties that the defendant should seed said farm to wheat and then surrender the farm, with the growing crop thereon, all rights which he had under the lease, and all farming implements and other personal property owned by him on said farm, for the sum oi $14,000.”
“(31) That during the period between October 5, 1923, and the date of the filing of this suit, defendant talked with the plaintiff on business matters at the Stoufer home a number of times, and on several occasions she went with him in the daytime to the farm occupied by him, and on two occasions spent the night and occupied the same bed with him, at the home of her brother, in Seward county, Kansas.”
The court made another finding as follows:
“(11) That the parties lived and kept house in Liberal, until about the first of October, 1918, and during said time the defendant, sometimes voluntarily, and sometimes at the request of the plaintiff, assisted her in making improvements upon her farm lands in the vicinity of Liberal, looking after the purchasing of materials and the employment of laborers, and also assisted her in the marketing of her share of the crop received from her lands, and in making settlements and adjustments with her tenants. And such services were of the value of more than $100.”
Another finding reads:
“(39) Except as in these findings specifically stated, the court finds the facts generally in favor of the plaintiff, and against the defendant.”
The defendant requested a number of findings of fact, among which was the following one:
“Plaintiff requested the defendant to look after her separate property, as heretofore stated, and promised and agreed to pay him the reasonable value of his services, and that defendant performed said work under said agreement, and fully carried out all the terms of said agreement, and rendered such services to her as heretofore stated for a period of six years, and that such services were reasonably of the value of $5,000 per year. The services performed by defendant were not the usual and customary services required by the marriage contract, but were extraordinary services performed in building up plaintiff’s separate estate and property.”
The court did. not make any of the findings requested by the defendant.
The defendant says that “the trial court erred in failing to make findings of fact upon material issues, as requested by appellant.” The defendant introduced evidence which, if it had been believed by the court, tended to support the findings requested by him. The evidence of the plaintiff supported the findings made by the court. The evidence concerning the extreme cruelty of the defendant, the gross neglect of duty by the plaintiff, and the contract for compensation to be paid by the plaintiff to the defendant for services rendered to the former by the latter, was so contradictory it could not be reconciled. Upon that contradictory evidence the court made the findings on which the judgment for divorce was rendered in favor of the plaintiff. The court failed to find that there had been a contract between the plaintiff and the defendant concerning compensation to be paid for services performed by the defendant for the plaintiff. The court did find in favor of the plaintiff on all issues not specifically covered by the findings of fact. Under these circumstances this court cannot say that the court committed error in failing to make the findings of fact requested by the defendant.
The defendant urges that “the trial court committed error in overruling defendant’s demand for a jury.” This is a divorce action, not an action for the recovery of money. The defendant sought to recover money under a cause of action set up by him. The plaintiff demurred to that cause of’action on the ground o* misjoinder. The court overruled the demurrer. It probably should have been sustained, but it is not necessary to decide that question at this time. Section 60-1506 of the Revised Statutes of 1923 provides for the control and equitable division and disposition of the property of parties to an action for divorce when the parties appear to be in equal wrong. Section 60-1511 provides for alimony or division of property when a divorce is granted. What division of property shall be made is largely within the discretion of the trial court. (Deeds v. Deeds, 108 Kan. 770, 773, 196 Pac. 1109.) In determining the division of property between the plaintiff and the defendant, it was proper for the court to consider how the property of each was acquired and how improved or augmented in value. For that purpose, evidence to show the services rendered by the defendant for the plaintiff in enhancing the value of her property was competent, but recovery for the,value of those services as such, independent of any division of the property between the parties, could not be had in this action. In an action for a divorce involving a division of property between the parties, a jury trial is not a matter of right. If the defendant desired a jury trial on the issues presented by him, he should have instituted a separate action therefor. It was not error to refuse to submit this issue to a jury.
The defendant urges that “the trial court .erred in failing to find that as a matter of law the plaintiff had condoned the conduct and words alleged to be extreme cruelty.” The defendant contends that the acts of extreme cruelty complained of by the plaintiff had been condoned by her. That issue was submitted to the court, and the court made finding No. 31. With that finding must be considered finding No. 39, which negatives the contention of the defendant that the plaintiff had condoned his extreme cruelty. There was evidence from which the court could find that voluntary sexual relations had not existed between the plaintiff and the defendant for a long time previous to the commencement of this action.
What is condonation? 1 Bouvier 585 defines the term as follows:
“The conditional forgiveness or remission, by a husband or wife, of a matrimonial offense which the other has committed.
“ 'A blotting out of an imputed offense against the marital relation so. as to restore the offending party to the same position he or she occupied before the offense was committed.’ ”
In 19 C. J. 93 the term condonation is defined as follows:
“Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness.”
In 2 Bishop on Marriage and Divorce, 6th edition, section 33, in discussing condonation it is said:
“Ordinarily, at least, and for the purpose of definition we may assume in all cases, condonation in the law of divorce is a mere inference of law from proven facts. It is the remission, by one of the married parties, of an offense which he knows the other has committed against the marriage, on condition of being afterward treated by the other with conjugal kindness. While the condition remains unbroken, condonation, on whatever motive it proceeded, is a bar to the remedy for the particular injury condoned. The doctrine is founded in natural justice, and it prevails in most civilized countries.”
The evidence relied on by the defendant to show that there had been a condonation of the offenses committed by him was that which tended to prove that he and the plaintiff had occupied the same bed after their separation. That fact tended to prove that there had been a 'condonation of those offenses, but the evidence which showed how théy_ came to occupy the same bed and all the circumstances surrounding that act were consistent with the fact that there had been no condonation. Defendant argues that sleeping with each other established that the plaintiff and the defendant had resumed marital cohabitation. The presumption is that when they occupied the same bed they had sexual relations. The defendant could have testified that he and the plaintiff then had sexual relations with each other if there had been such relations, but he did not so testify. There was evidence which tended to prove that after the separation of the plaintiff and the defendant they had not cohabited as husband and wife.
In 1 Bouvier 519 cohabit is defined as follows:
“To live together in the same house, claiming to be married.”
In 11 C. J. 952 cohabitation is defined thus:
“The act or state of dwelling together, or in the same place with another; living together as husband and wife; a living together as man and wife. A condition or status of the parties, a status resembling that of the marital relation. Cohabitation is not a sojourn, nor a habit of visiting, nor even a remaining with for a time; the term implies continuity. It is said that cohabitation in its usual sense implies publicity, since two persons cannot secretly live together. The term is of large signification. Cohabitation may be lawful ok it may be illicit. The term as sometimes employed has a veiy disgraceful meaning. Although it has been held that the term implies sexual intercourse, it seems that, according to the weight of authority, sexual intercourse is not necessarily implied, as the word does not even include necessarily the occupying the same bed.”
In 1 Bishop on Marriage and Divorce, 6th edition, section 777, the term is defined in the following language:
“To cohabit is to. dwell together. Matrimonial cohabitation is the living together of a man and woman ostensibly as husband and wife.”
The evidence was such that different conclusions could have been reached from it. The court could have found that there had been a condonation of the offenses committed by the defendant against the plaintiff, but the evidence was entirely consistent with the finding of the court that there had been no condonation. The evidence tended to prove that there had been no forgiveness, no taking back of the defendant by the plaintiff as her husband, no cohabitation, no agreement, express or implied, to resume the relation of husband and wife. The finding that there had been no condone ment was supported by evidence, and that finding cannot be disturbed by this court.
The defendant insists that “the trial court committed error in holding that the conduct of the defendant described in the findings constituted extreme cruelty towards the plaintiff as contemplated by the statute.” On this question, the findings of the court were sustained by evidence. There was evidence which tended to show that the defendant cursed the plaintiff and called her vile ñames; that he choked her and struck her; and that he accused her of having sexual relations with other men. That evidence, if believed, justified a finding of extreme cruelty.
Two other matters complained of are that “the trial court committed error in finding that plaintiff and defendant acquired no joint property,” and that “the trial court committed error in adjudging that defendant was not entitled to any share of the property.” These matters have been carefully examined. The finding complained of was supported by evidence, and there was no error in denying to the defendant any share of the property owned by the plaintiff. It is not necessary to discuss further these propositions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the payee of a check against the maker. The defense .was failure of consideration and fraud which induced its execution. Tlie court sustained a demurrer to defendant’s evidence and! rendered judgment for plaintiff. The defendant has appealed.
The sole question before us is whether there was sufficient evidence in support of the defense alleged to take the case to the jury. The circumstances under which the check was given are in substance as follows: The defendant, Broadhurst, owned certain oil and gas leases, by assignment. He entered into a contract to sell the leases to one Clark and the plaintiff Balph, and received a cash payment of $500. He assigned one of the leases to Clark and Balph. The contract provided if the balance of the purchase price was not paid within a stated time the lease was to be reassigned to Broadhurst. Clark and Balph recorded the assignment to them. Later they executed an assignment of the lease to Mr. Hickman, the father-in-law of Balph. The balance of the purchase price was not paid to Broadhurst, and he asked that the lease be- reassigned to him. Balph declined to do this unless the $500 paid should be returned, which defendant agreed to do. Balph procured an assignment of the lease from Hickman to defendant, and sent it to a bank at .Arkansas City, where defendant resided, with a draft for :$500.attached and with instructions to deliver the assignment to defendant on payment of the draft. Broadhurst advised Balph he would not pay the $500 draft unless he could get a release signed by Clark. He went to Ponca City, where both Clark and Balph resided, taking with him a release prepared by his attorneys which he desired to have Clark sign, and there met Balph by appointment at his office. Clark was called by telephone. Defendant talked to him, read the release to him, and asked if he would sign it. Clark replied that he would. Balph listened to this conversation over an extension telephone, but himself made no representations nor promises as to Clark’s signing the release. The instrument which •defendant desired Clark to- sign released defendant of any and all liability growing out of a certain contract in writing made and entered into on November 17, 1924, and further warranted and guaranteed to protect and indemnify defendant against any lease, claims, •or liability of any nature which then existed or should arise by reason of such contract. After this conversation defendant and Balph went down to a bank in Ponca City, where defendant gave Balph his check for $500, and at his request Balph wired the Arkansas City bank to deliver to defendant the assignment of the lease then .at such bank. Defendant then went to see Clark to have him sign the release which had been read to him. Clark declined to sign it unless he got part of the money. Defendant then tried to find Balph, but was unable to locate him, and returned to Arkansas City, went to the bank, and obtained the assignment of the lease without •paying the draft, in accordance with Balph’s telegram, and had the assignment recorded to him the same day. He also gave his bank at Arkansas City instructions to stop payment on the check which he had given to Balph at Ponca City. This is the check sued on in this action.
This evidence did not tend to show fraud on the part of Balph which induced defendant to execute the check. He made no promise or representation at any time that Clark would sign the release, nor did he at any time concede that such a release was necessary. On the other hand, he attempted to make it clear that the assignment of the lease should not be delivered to defendant until the $500 was paid.
The question of failure of consideration is not so easily disposed of. Defendant plead a total failure of consideration. It is clear this defense was not sustained, but under an allegation of a total failure of consideration a party may show a partial failure of consideration. (McMillan v. Gardner, 88 Kan. 279, 128 Pac. 391.) A partial failure of consideration is a defense pro tanto, whether the failure is an ascertained or liquidated amount or not. (R. S. 52-305.) The written instrument sued on imports a consideration, and one who defends on the theory of a partial failure of consideration has'the burden of establishing that fact. (Fontron v. Kruse, 103 Kan. 32, 34, 172 Pac. 1007.) Defendant did not show in this case' to what extent, if at all, he was injured by his failure to obtain the signature of Clark to this release. The contract of November 17, 1924, is not in the record, and why, or to what extent, a release thereof executed by Clark would be of any value to defendant is not shown. From such references to it as there are in the record it would seem to become of no force by its own terms upon the failure of Clark, or of him and Balph, to make the further payments. The statute provides that a partial failure of consideration is a defense pro tanto, but this does not relieve one relying upon such a defense from the burden of showing to what extent, if at all, there has been a partial failure of consideration. No such showing was made in this case, and hence there was nothing upon which the jury could have based a judgment of partial failure of consideration, or could have made any estimate of the amount of such partial failure. While the question whether there was a failure, or partial failure, of consideration is naturally a jury question (National Bank v. Williams, 117 Kan. 501, 503, 232 Pac. 252), there is nothing to submit to the jury unless there is some substantial evidence to support the defense. (Melhop v. Costa, 26 N. M. 337; Merchants’ State Bank v. Streeper, 48 N. D. 583; Titman v. Cooper, 103 Neb. 599.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is another chapter of a case which was here before. (Wamberg v. Hart, 114 Kan. 906, 221 Pac. 547.)
It appears that at some time prior to the commencement of this action, the plaintiff, J. W. Wamberg, a single man, conducted and maintained a real-estate office in Tribune. He had a good deal of office furniture and equipment and had a living room adjacent to or near his real-estate office. In this living room plaintiff had some chattels for housekeeping. Some of his office furniture and equipment was not paid for, and the parties who had supplied him therewith held his title notes evidencing their reserved interest in those chattels.
It also appears that most of the personal property levied on by the sheriff was covered by a chattel mortgage executed in 1921 by Wamberg to Clement L. Wilson, interpleader. Wilson sought to keep his mortgage alive by filing renewal affidavits in the office of the register of deeds, and he claimed a chattel lien on the property which the sheriff had seized and was attempting to sell when halted by an injunction issued at the inception of this action.
In his amended petition, filed June 4, 1923, plaintiff alleged ownership of the chattels seized by the sheriff and claimed that they were exempt from execution.
In defendant’s answer, filed February 4, 1924, it was alleged that since the filing of 'this action “the plaintiff has. absconded from Greeley county and from Kansas and is no longer a resident of Kansas and his whereabouts are unknown to this defendant, but the defendant is informed and believes that he now lives in the state of California.”
Wilson, interpleader, filed an answer and cross petition setting up a note of plaintiff held by him, dated January 15, 1921, for $319.80, secured by a chattel mortgage covering most of the chattels levied on by the defendant sheriff. He alleged that the chattel mortgage had been recorded on January 17, 1921, and that a renewal affidavit had been filed for record on April 28, 1921, and a still later renewal affidavit had been filed for record on January 5, 1923. Copies of these renewal affidavits were attached to Wilson’s cross petition. Appended to the first was the following recital:
“Renewal Affidavit. Filed and attached to mortgage April 28, 1921, at 8 o’clock a. m. Faith Owen, Register of Deeds."
The second affidavit bore the following indorsement:
“Chattel Mortgage. From J. W. Wamberg to Clement L. Wilson, renewal affidavit filed and attached to mortgage Jan. 5, 1923, 11 o’clock a. m.
Hope Owen, Deputy.”
Defendant’s demurrer to Wilson’s cross petition was overruled, and he then answered with a general denial.
Trial by the court; findings in favor of interpleader as chattel mortgagee, and in favor of plaintiff, that all the seized property was exempt except one chattel, a davenport or folding bed. Judgment was entered accordingly, and the defendant sheriff appeals.
Under various errors assigned it is first urged that plaintiff filed no reply to defendant’s answer, so the allegation that plaintiff was not a resident of Kansas at the time the answer was filed must be taken as true. But subject to some exceptions not here pertinent, the 'rights of a plaintiff in an action at law are those to' which he is entitled when his action is begun (Reynolds v. Thomas, 28 Kan. 810; Robertson v. Howard, 83 Kan. 453, 112 Pac. 162; 1 C. J. 1149), and there was no issue raised on the verified allegation of plaintiff’s petition that he was then a resident of Tribune. The fact that ere this protracted litigation had progressed far enough to require defendant to file an answer, plaintiff had become a nonresident, if such was the fact, is immaterial. His rights were those which existed when his action complaining of the unlawful invasion of his exempt property was duly begun. In the early case of Urquhart v. Smith, 5 Kan. 447, where exempt property of a debtor had been attached, and where his motion to discharge the attachment was denied, this court said:
“It seems to us that this motion ought to have been granted. The defendant, as the testimony shows, was a resident of the state of Kansas and the head of a family at the time of the seizure of his property, and as such he was entitled to the benefit of the exemption laws, notwithstanding and independent of the fact that at some future time he might have intended to become a nonresident. Such intention might never have been carried into effect; and until it was, he was, and would be, fully within the protection of the laws referred to. It is provided in the exemption act that no exempted property shall be liable to seizure and sale upon any attachment, execution or other process issued from any court in this state; and it scarcely needs to be stated that it is incumbent on the courts of the state to give force to these provisions whenever properly and lawfully called upon so to do. If, then, any. such exempted property was taken on the attachment in this case, it was the duty of the -justice to have ordered the release of the same so soon as the fact was brought to his knowledge and lawful demand thereof made by the owner. This, we think, was accomplished by the motion of the defend ant and the evidence which had been submitted.” (p. 451. See, also, Bank v. Sesler, 113 Kan. 656, 216 Pac. 274; 25 C. J. 19.)
It is next argued that plaintiff was not entitled to exemption on all his office' furniture. Defendant argues that plaintiff’s business, which was that of a real-estate dealer, was' negligible, that he had no real need for .a duplicating machine, a check writer, an envelope sealer, an addressing machine, a filing cabinet, nor for two typewriters and two or three desks. The statute says:
“The following property only shall be exempt from attachment and execution, when owned by any person residing in this state, other than the head of a family:- . . . third, the necessary tools and instruments of any mechanic, miner or other person, used and kept for the purpose of carrying on his trade or business, and, in addition thereto, stock in trade, as provided in the last preceding section; fourth, the library, implements, and office furniture of any professional man.” (R. S. 60-3505.)
It was a fair question for the district court, as trier of the issues of fact, to determine whether all the chattels, especially the duplicates, were necessary tools and instruments in plaintiff’s business as a real-estate dealer. This court cannot say that there was no evidence to support the trial court’s determination of this disputed issue of fact, so the judgment on this point will have to stand.
Defendant criticizes the attention given by the trial court to the facts pleaded by plaintiff concerning the claims of the unpaid vendors of the office furniture under their reserved title notes. It is argued that plaintiff has to establish his cause by the strength of his own title, and that contention is correct. Perhaps the fact that third parties held an interest in those chattels as evidenced by these notes was given unnecessary consideration. But until those chattels were seized by the sheriff, plaintiff had possession of them, and possession itself has a certain quality of title, good against everybody except those having a better claim thereto (I Cooley’s Blackstone, 3d ed., 401; 2 Kent, 14th ed., 500, 560); and Wamberg could protect his right — such as it was — against unlawful invasion by the defendant.
Passing next to that phase of the judgment which dealt with the rights of the chattel mortgagee, defendant makes this concession and contention:
“The chattel mortgage was perfectly good when it was filed on January 17, 1921, and it would be perfectly good against all creditors or purchasers until January 17, 1923. And then the lien-would immediately cease, except as to the mortgagor, unless renewed as the statute requires.”
Defendant then proceeds to argue that the renewal affidavit filed on April 28, 1921, was without legal significance, because the note secured thereby was then only thirteen days overdue, whereas the statute merely says that a mortgage shall be void unless a proper renewal affidavit is filed within thirty days next preceding the expiration of the term of two years after maturity. The statute reads:
“Every mortgage so filed shall be void as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of two years after the filing thereof, unless, within thirty days next preceding the expiration of the term of two years from such filing, and each two years thereafter, the mortgagee, his agent or attorney, shall make an affidavit exhibiting the interest of the mortgagee in the property at the time last aforesaid, claimed by virtue of such mortgage, and, if said mortgage is to secure the payment of money, the amount yet due and unpaid. Such affidavit shall be attached to and filed with the instrument or copy on file to which it relates.” (R. S. 58-303.)
It would therefore appear that no legal significance can be attached to the filing of the renewal affidavit on April 28, 1921, and this conclusion accords with the rule stated in 11 C. J. 545-546, where it is said:
“The time within which a chattel mortgage must be refiled or renewed is fixed by the statutory provision requiring such refiling or renewal. Such provisions must be strictly complied with. Where a certain period, such as thirty days, is given within which to refile a mortgage, any effort to renew the record before the period commences is ineffectual.”
But what about the renewal affidavit of January 5, 1923? The note secured by Wilson’s chattel mortgage was dated January 15, 1921, and was due on April 15, 1921. The chattel mortgage was duly filed for record on January 17, 1921, and it continued to be valid and enforceable for two years thereafter without any renewal affidavit being filed. The interpleader’s second renewal affidavit was filed on January 5, 1923, which was “within thirty days next preceding the expiration of the term of two years from such filing” of January 17, 1921. This renewal affidavit was timely made and filed, and it preserved and continued the validity of the chattel mortgage covering the chattels against seizure by the sheriff on January 19, 1923, unless it was vitiated by the following incident: It was pleaded and well supported by evidence that the chattel mortgagee, according to his custom in handling renewal affidavits of chattel mortgages held by him, caused his stenographer to prepare a renewal affidavit in duplicate — one original for filing and the other for use as an office copy — and he executed one of these before a notary, and his stenographer took them both to the register of deeds. That officer made the usual filing indorsement, quoted above, on both papers, and one was left with the register of deeds and the other carried back to the business office of the mortgagee. Inadvertently it was the original which the stenographer carried away, and it was the office copy which was left with the register and attached to the chattel mortgage; and not until some time in February, a few days after the chattels were seized by the sheriff, was the transposition of the copy for the original affidavit discovered. Should that incident suffice to defeat the rights of the chattel mortgagee? We think not. The original affidavit was in fact duly filed. It was indorsed by the register of deeds as being duly filed and attached to the mortgage on January 5, 1923. The fact that after-wards it was inadvertently transposed for the mortgagee’s office copy did not vitiate the actual filing. No one was wronged or misled by the transposition. The copy itself was a virtual duplicate. It, too, bore the register’s indorsement. It gave fair warning to all concerned that the chattel mortgagee had invoked his statutory privilege to preserve and continue his lien on the chattels as security for the debt due him. The trial court did not err in holding that the interpleader’s mortgage lien held precedence over the levy by the sheriff.
There is no error in this record of sufficient gravity to justify a reversal of the judgment, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The Charles Wolff Packing Company, as intervener, appeals from an order approving the report of C. A. Kline, receiver, from an order discharging him as such receiver, and from an order overruling objections to his discharge:
On October 11, 1922, C. A. Kline was appointed receiver of the Stewart-Peck Southwestern Sand Company, and afterward qualified and acted as such. Under an order of the court, the receiver entered into a lease contract with the Charles Wolff Packing Company, the intervener, by which that company leased to the receiver certain real property occupied by a railroad track and used by the receiver in the operation of the plant under his control. By the lease, the receiver was to pay an annual rental of $250. On July 29,1925, the receiver was by the court ordered to sell the property in his hands free of encumbrances except $1,500 receiver’s certificates which had been ordered issued by the court and which had been made a lien on the property ordered sold. On August 24, 1925, the property was sold to the holder of the certificates for $1,500. On the approval of the sale, the court ordered the receiver to accept the $1,500 receiver’s certificates in payment for the property sold. On September 12, 1925, the receiver filed his application for final settlement and discharge. He stated that he had filed with the court a report of the sale of property, which report disclosed the disposition of the proceeds of the sale, as above outlined. He further stated that he then had no funds in his hands for the.payment of claims against the receivership estate or for the payment of compensation to the receiver or his attorney. Thereafter the Charles Wolff Packing Company filed an objection to the application of the receiver in which objection the packing company stated that the property had been leased and that there remained due as rent the sum of $458.30. The intervener also stated that all of the proceeds arising from the sale of the property sold by the receiver had been applied to the satisfaction of one claim. The packing company asked that the report of the receiver be not approved; and that he be not discharged until he pays the claim of that company.
The order discharging the receiver recites a number of outstanding accounts incurred during his receivership, among which is included one for the Wolff Packing Company of $333.36. The order also recites—
“That there are no funds in the hands of the receiver with which to pay said claims.
“That the receiver has filed his final report herein and has submitted therewith vouchers for payments made during said receivership, and where vouchers are missing has satisfied the court that the same were regularly paid, and the court finds that said report should be approved.
“The court further finds that there are no funds in the hands of the receiver with which to pay compensation to the receiver or to his attorney for their services; that there is no property in said receivership out of which same can be paid, and by reason thereof no allowance should be made for payment to the receiver for his services or for the services of his attorney.
“That the court costs in this case should be taxed against the defendant and that the receiver herein should b'e discharged and his bondsmen discharged from further obligation in this matter."
The objection to the discharge of the receiver was overruled, and he was discharged in accordance with the finding of the court. Under the circumstances, it was not error to overrule the objections of the intervener and to discharge the receiver.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch,'J.:
The action was one for damages resulting from delay in transporting live stock to the Kansas City market. Plaintiff recovered, and defendant appeals.
The transportation was interstate, and was governed by federal law. The petition was an old-style, common-law petition for negligent delay. Defendant sought to introduce in evidence the shipping contracts as a part of the cross-examination 'of plaintiff. The court held the contracts were matters of defense, and they were not admitted until regularly offered by defendant. Since the petition counted on an interstate shipment, the shipping contracts were not mere matters of defense, but were fundamental to the relation of shipper and carrier. To base recovery on the common law was to claim discrimination in favor of plaintiff, something which congress has taken much pains to eradicate. (Abell v. Missouri Pac. Rld. Co., 120 Kan. 362, 243 Pac. 1031.) Since the contracts finally came into the case and it was determined with reference to them, the error in treating them as matters of defense was not prejudicial.
The petition contained two causes of action, one based on a shipment made in November, 1923, and one based on a shipment made in February, 1924. Each cause of action was predicated on the fact the shipment arrived too late for the market on the day of arrival, and plaintiff was obliged to hold his stock in the yards for the next day’s market. The November shipment was unloaded at 12:10 p. m., and was on the market about 1 p. m. The February shipment was unloaded at 10:40 a. m., and was on the market about noon. The rule is that the market is open from 8 a. m. to 3 p. m. In actual practice, market transactions are concluded in the forenoon, and most of them early in the forenoon. Buyers fill their orders, and leave the yards. Only traders are left, and generally stock must be held over or sold at a sacrifice. In case of negligent delay in delivery, market conditions and practices govern rather than rule hours, and injurious consequences of delivery in fact too late for market on the day of arrival, are to be regarded as consequences of delivery for the next day’s market.
The November shipment included hogs and cattle. The petition made the following claim for damages for holding 129 head of hogs from November 22 to November 23:
“25$ per cwt. decline on 129 hogs, weighing 14,190 pounds............. $35.47
5 pounds per head shrink on 129 hogs, at $5.25..................... 33.86
5 bushels extra feed, account holding over......................... 6.50”
One hundred head of hogs were sold on arrival. There could be no shrinkage for holding until the next day hogs sold on the day of arrival. The price of those hogs was not cut because they were stale and the proof wasi the feed was given to the entire lot of 129 head. A motion to withdraw the evidence relating to damages occasioned by holding over 100 head of hogs was denied.
The petition made the following claim for damages for holding the November cattle from the day of arrival until the next day:
“250 per owt. decline from the morning market of the 22d to morning market of the 23d, 23,610 pounds............................. $59.02
250 per cwt. decline, account stale condition........................ 59.02
225 pounds alfalfa, extra feed....................................... 3.94
6 bushels of corn ............................................... 7.80
40 pounds per head shrink 24 cattle, at $6.50 per cwt................ 62.40”
There was no decline in market price from the morning market of the 22d to the morning market of the 23d, and the shrinkage was only twenty-five pounds per head.
The February shipment was a carload of cattle. The claim stated in the petition for holding these cattle from February 27 to February 28 follows:
“To extra shrink of 25 pounds per head on said cattle, 65 head, to wit, 1,625 pounds, at $5.68 per hundred............................... $92.30
To 25 cents decline, account stale condition of said stock, on 49,090 pounds, the weight of cattle.................................... 122.72
To extra hay, 400 pounds, and 160 pounds of alfalfa, and four bales of straw.......................................................... 10.80
To one cow, crippled through the carelessness and negligence of defendant ....................................................... 12.50”
The shipment comprised fifty-six stockers and nine cows, one of them being a cow crippled in transit. The cows were all sold on arrival, and there could be no damages for holding them until the next day. They did not shrink, or become stale in appearance, or consume extra feed. A motion to strike out the evidence relating to damages occasioned by holding over the cows, was denied.
The shipping contract contained the following provision:
“Sec. 4. (c) Before the live stock is removed from the possession of the carrier or mingled with other live stock, the shipper, owner, consignee or agent thereof shall inform in writing the delivering carrier of any visible or manifest injury to the live stock.”
Written notice was not given of the visible injury to the crippled cow. The court instructed the jury as follows:
“You are instructed that, if you find and believe from the evidence herein that the cow of said shipment was crippled, as alleged in the first cause of action of plaintiff’s amended petition, and for which plaintiff claims damages in the sum of $12.50; and you further find and believe from the evidence that a representative of defendant was present at the unloading, no notice to defendant of such injury would be necessary.”
The instruction was applicable to contracts merely requiring notice to the earner, but was not applicable to contracts requiring written notice.
The court denied a request for an instruction framed by defendant relating to measure of damages, and gave an instruction on that subject, of which defendant complains.
It is not necessary to discuss the assignments of error bearing upon the subject of amount of recovery. The jury allowed nothing for the 100 head of hogs, or for feeding hogs, or for market decline 'in price of the November cattle, and allowed but twenty-five pounds per head shrinkage of those cattle. The jury allowed nothing for eight of the nine head of cows in the February shipment, but did allow $12.50 for the crippled cow. Aside from the crippled cow, the items included in the verdict were, shrinkage in weight and depreciation in price on account of staleness of the stock held over, and feed of the cattle held over. These items were duly proved, and defendant does not specifically complain of them. According to the court’s computation they amounted to $319.42. Adding to this sum the damages on account of the crippled cow, $12.50, the total is $331.92, which is ten cents more than the verdict. The difference may be accounted for by the part played in the computation by third-place decimals.
The contention that plaintiff was not the proper party to sue is unsound, and other matters discussed ,in plaintiff’s brief do not require special mention.
The judgment of the district court is reduced, by deducting the sum of $12.50, to $319.32. As modified, the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is one for $90,656.80 on a bond given to the plaintiff to secure the deposit of county funds made by the plaintiff in the Lake State Bank. Judgment was rendered in favor of the defendant on the verdict of a jury, and the plaintiff appeals.
Minutes of the proceedings of the board of county commissioners of Barber county were introduced in evidence over the objection of the defendants. Minutes showing action taken on February 3, 1919, were as follows:
“Motion, was made, seconded and carried that the offer of 414 per cent on daily balances for county money, submitted by the Lake State Bank be accepted for a term of two years.”
The minutes also showed the following action taken on February 4,1919:
“Moved, seconded and carried that Lake State Bank be designated as county depository for two years and bond submitted by them be accepted.”
The bond given contained the following:
“The conditions of this obligation are such that: Whereas, The Lake State Bank above named has been duly designated as a county depository for said county of Barber by the board of county commissioners of said county of Barber, in regular session on February 3, 1919, under section 2788 of the General Statutes of Kansas, 1915.
“Now, in consideration of the contract of said county commissioners with said the Lake State Bank, and in consideration of the appointment of said the Lake State Bank as a county depository and of the depositing of funds of said county with said the Lake State Bank, the conditions of this bond is that if the said the Lake State Bank shall well and truly pay all checks properly drawn upon it, as such depository bank, and faithfully account for any and all moneys so deposited with it, and all interest thereon upon daily balances, at four and one-fourth per cent (414) as agreed upon in the appointment of said the Lake State Bank, then this obligation shall be null and void, otherwise to remain in full force and effect. Dated February 4, 1919.
“A. T. Groendycke.............................■..........$50,000
The Lake State Bank, by Dave Freemyer, president (seal) ;
Clara Groend3rke, asst, cashier....................... 10,000
The Pioneer Cattle Loan Co., by Dave Freemyer, president, 30,000
Dave Freemyer, Dorothy V. Hargis...................... 30,000
Fred Lake............................................. 15,000
M. M. Shigley.......................................... 30,000
H. S. Buck............................. 10,000
C. D. Hogard........................... 20,000
H. Gilbert ............................................. 15,000
C. F. Bucher........................................... 40,000
J. N. Tincher........................................... 25,000
Seward I. Field......................................... 20,000
J. H. Rea.............................................. 10,000
H. D. Fair............................................. 100,000
H. W. Skinner.......................................... 500,000”
Minutes of the proceedings of the board of county commissioners on April 4, 1921, were introduced in evidence over the objections of the defendants. Those minutes were as follows:
“It is ordered that the Lake State Bank contract shall continue to January 10, 1922. That the 1921 tax shall be deposited in the Home State Bank of Medicine Lodge, Kan., said bank to be general depository of Barber county, Kansas; the said depository shall retain approximately 25 per cent of the average deposits. The said remaining money to be apportioned among the banks desiring to participate at the same rate of interest, which shall be 414 per cent. Said contract to run four years. This money is to be apportioned by the county treasurer according -to the capital and surplus of said banks. The banks desiring to participate shall file with the board of county commissioners on or before October 1, 1921, a statement requesting a right to participate in the county funds, also a statement as to the manner in which their certain deposits are guaranteed.”
On the trial it was admitted that—
“Commencing with February 4, 1919, the county treasurer made deposits of county funds coming into his hands in the Lake State Bank, beginning with the sum of $10,000 on February 5, 1919. And that he made deposits of various other sums from time to time. It is also agreed that the total deposits made by him of county money from February 4, 1919,. down to and including February 4, 1921, was $865,754.25. It is also agreed that during that period of time of two years mentioned, from February 4, 1919, down to and including February 4, 1921, the county treasurer withdrew from the Lake State Bank the sum of $719,378.75. It is also agreed that at the close of business on February 4, 1921, there was on deposit to the credit of the county treasurer in the Lake State Bank the sum of $146,375.50. It is further agreed that from February 4, 1921, until and including April 5, 1921, the county treasurer de posited in the Lake State Bank $13,856.22. It is also agreed that between February 4, 1921, down to and including April 5, 1921, the county treasurer withdrew from the Lake State Bank $24,919.43, and that at the close of business on April 5, 1921, the county treasurer had on deposit to his credit in the Lake/ State Bank of money belonging to Barber county, $135,312.29. Commencing April 5, 1921, and running down until the bank was closed the total deposits by the treasurer was $210,715.77, and after April 5, 1921, down to the date when the bank was closed the county treasurer withdrew from the bank the sum of $255,371.26. And it is further agreed between the parties that at the time of the closing of the Lake State Bank on November 18, 1921, there was a balance on hand in the bank to the credit of the county treasurer of money belonging to the county of $90,656.80.”
One of the principal questions discussed is whether or not the bond given by the Lake State Bank continued after the expiration of two years until the failure of the bank. The bond was given in consideration of the contract between the county commissioners and the Lake State Bank. That contract was disclosed by the minutes of the board of county commissioners and was for two years from February 4, 1919.
In 9 C. J. 36 it is declared that—
“It may be stated generally that where a bond and another contract or instrument relate to and form one and the same transaction, or the bond refers to such other instrument or is conditioned for the performance of specific agreements set forth therein, such instrument with all its stipulations, limitations or restrictions becomes a part of the bond and the two should be read together and construed as a whole.”
A number of cases are there cited to support the text. The defendants also cite and quote from a number of cases which declare the same principle. Following these authorities, but without quoting further from them, the court holds that the bond secured deposits made during the full period of two years beginning on February 4, 1919, but did not secure deposits made after that time.
The plaintiff in its specifications of error says that—
“The court erred in refusing to give to the jury the appellant’s special instruction No. 1;
“The court erred in refusing to give to the jury the appellant’s special instruction No. 2;
“The court erred in refusing to give to the jury the appellant’s special instruction No. 3;
“The court erred in instructing the jury at all, except that it should have given to the jury each of appellant’s special instructions Nos. 1, 2 and 3;
“The court erred in refusing to set aside the verdict of the jury and to render judgment for the appellant upon the pleadings and the evidence in the case; and
“The court erred in rendering judgment for the appellees in said action."
The instructions requested were as follows:
“I. The jury are instructed that under the law and the evidence in this case they should return their verdict in favor of the plaintiff and against the defendants, the Lake State Bank, R. C. Nance, as receiver of the Lake State Bank, A. T. Groendyeke, Dave Freemyer, Dorothy V. Hargis, Fred Lake, H. S. Buck, C. D. Hogard, H. Gilbert, C. F. Bucher, J. N. Tincher, Kendall Field as administrator of the estate of Seward I. Field, deceased, J. H. Rea, H. D. Fair and H. W. Skinner. The amount of the verdict against each of said defendants should be as I have otherwise instructed you.
“II. If you should find a verdict for the plaintiff, then you will find in the verdict and against each of the several defendants in the amount set out as follows, after the name of each respectively, with interest at the rate of six per cent per annum on each of the said several sums respectively from November 18, 1921, to this date:
A. T. Groendyeke ................................... $50,000.00
The Lake State Bank................................ 10,000.00
Dave Freemyer ..................................... 90,656.00
Dorothy V. Hargis .................................. 30,000.00
Fred Lake .......................................... 15,000.00
H. S. Buck.......................................... 10,000.00
C. D. Hogard....................................... 20,000.00
H. Gilbert .......................................... 15,000.00
C. F. Bucher........................................ 40,000.00
J. N. Tincher....................................... 25,000.00
Kendall Field, as administrator of the estate of Seward
I. Field, deceased................................. 20,000.00
J. H. Rea.............".............................. 10,000.00
H. D. Fair.......................................... 90,656.00
H. W. Skinner ...................................... 90,656.00
“III. If you find a verdict for the plaintiff, then you will find generally in its favor in the sum of $90,656.80 with interest at the rate of six per cent per annum from November 18, 1921, to this date, and the amounts of the verdicts against each of the several defendants should be as I elsewhere instruct you.”
The admitted facts showed that on February 4, 1921, there was on deposit to: the credit of the county treasurer in the Lake State Bank, $146,375.50; that thereafter, and until April 5, 1921, there was deposited an additional sum of $13,856.22, and there was withdrawn $24,919.43, leaving at that time a balance of $135,312.29; and that commencing on April 5, 1921, and continuing until the bank closed, there were additional deposits of $210,715.77. Out of this, checks were paid, until at the time the bank closed there remained on deposit, $90,656.80. These facts were admitted. It was not necessary to submit them to the jury. The consequences flowing from them were questions of law that should have been determined by the court. If they compelled judgment in favor of the plaintiff, judgment should have been so rendered. Nothing in the pleadings, admitted facts or evidence tended to show any ap plication of payments made on checks by the county treasurer on .the funds in the Lake State Bank. The application of payments must be made as the law directs. In State v. Guaranty Co., 81 Kan. 660, 106 Pac. 1040, in an action on a bond given by a bank to secure deposits made by the state treasurer, this court said:
“In running accounts where there are items of debit and credit, and there has been no appropriation of payments by the parties, the ordinary rule is that the first debit items are extinguished by the first credit items, but that is subject to the other rule that where a debtor owes debts, some secured and others unsecured, and neither debtor nor creditor has directed the application, the law will apply the payments on the unsecured debts.” (Syl. ¶ 5.)
That rule was first declared in this state in Shellabarger v. Binns, 18 Kan. 345, where this court said:
“Where a debtor who owes to his creditor several distinct debts makes a payment to his creditor, the debtor may apply such payment to any one of such debts which he chooses. If he does not make the application, then the creditor may do so. If neither makes any such application, then the law will make the application in the manner which is most equitable; and in doing so, the law will generally apply the payment to the oldest debt, or to the earliest item of the same debt, or to a debt that is due in preference to one that is not due; and generally, where one debt is secured and the other is not, the law will apply the payment to the debt which is not secured.” (Syl. If 2.)
The rule was referred to in Medical Co. v. Hamm, 89 Kan. 138, 141, 130 Pac. 650. Under the rule declared in these cases, payments made by the bank after February 4, 1921, should have been applied on the unsecured deposits made after that date.
All matters urged by the defendants to avoid the consequences of this rule of law have been considered.
In Barber County v. Bank Commissioner, 113 Kan. 180, 213 Pac. 1054, it was held that the deposits here in controversy did not come within the bank guaranty law. Because the deposits did not come within the provisions of that law, the bond sued on is not invalid.
It is urged that by the conduct of the board of county commissioners on April 4, 1921, the county is estopped to maintain this action. There cannot be an estoppel to recover from the bondsmen what was due at the expiration of the period for which the bond was given. The board could not do anything to prevent it from recovering from the bondsmen what was then owing to the county by the bank.
It follows that the plaintiff was entitled to judgment on the admitted facts, and the instructions requested by the plaintiff should have been given.
The judgment is reversed, and the trial court is directed to render judgment in favor of the plaintiff for $90,656.80 and interest thereon.
Burch and Dawson, JJ., dissenting. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action oh a written contract wherein defendant bound himself to pay to plaintiff the sum of $3,000 to settle a claim for civil damages for the seduction of plaintiff’s wife.
The contract was executed on August 13, 1940. In its terms it was recited that—
“Whereas, party of the first part [plaintiff] has a cause of action against party of the second part [defendant], growing out of certain circumstances with reference to party of the first part’s wife, and family, including sexual relations and affections of the wife of party of the first part, and the alienations thereof by party of the second part, and,
“Whereas, the parties hereto have mutually agreed each with the other, to enter into a fair and amicable settlement of their differences, and party of the first part has agreed not to commence suit in said cause of action as against party of the second part.”
In consideration of the foregoing and subsequent recitals the' parties agreed and stipulated that—
“Party of the first part agrees that he will not file in any court in this state or elsewhere any cause of action as against party of the second part, for the alienation of the affections of the wife of party of the first part, and in consideration therefor, and for other good and valuable considerations, party of the second part agrees to pay to party of the first part, the total sum of three thousand dollars ($3,000) . . .”
The agreed amount was to be paid thus: $500 in cash, the receipt, of which was acknowledged, and $2,500 on or before November 15, 1940, without interest if paid when due, otherwise to draw interest at 10 percent per annum.
The contract finally stipulated—
“That said parties do hereby release and discharge any and all debts, causes of action, claims, or damages, as each may have as against the other and this contract shall constitute a full, final and complete settlement of any and all their disputes. . . .
(Signed) Jacob F. Winger»,
Arthur Foley.”
Defendant made default in the payment .of the $2,500 balance due on the contract, and this action followed.
Plaintiff’s petition alleged the pertinent facts and set up the written contract.
Defendant’s answer contained a demurrer to the sufficiency of plaintiff’s petition, likewise a general denial, and then pleaded in substance as follows: That defendant signed the contract sued on, and paid $500 on the date thereof, but there was no legal consideration for the contract; that plaintiff and plaintiff’s wife and counsel employed by them entered into a fraudulent conspiracy to extract money from defendant, and that plaintiff made an agreement with his counsel to pay to the latter one-third of any amount which might be extracted from defendant; that in furtherance of such conspiracy—
“Plaintiff and said counsel misrepresented to defendant many matters of fact and law and threatened defendant with civil action, exposure, public ridicule and disgrace. That . . . being influenced by the threats and duress used by. said plaintiff and said counsel, this defendant signed said contract not of his own voluntary will and accord, but solely because of said misrepresentations, threats and duress, . . . That the wife of said plaintiff was a party to said conspiracy . . . that plaintiff, a short time prior to the signing of said written agreement sued on herein, accused him of improper associations .with plaintiff’s wife and so accused him in the presence of defendant’s wife, and . . . threatened defendant and insisted upon a settlement of the damages which plaintiff claimed to have sustained by reason of the indiscretions with plaintiff’s wife with which plaintiff accused defendant.
“That, for the purpose of avoiding publicity and buying their peace and quiet, and for the purpose of settling with plaintiff for all wrongs committed by defendant, imaginary or otherwise, defendant and defendant’s wife solemnly agreed with plaintiff that each, any and all claims which plaintiff might have against defendant because of any transactions or relationships between defendant and plaintiff's wife should be forever settled by the payment to plaintiff of the sum and amount of $400 cash. That a full and complete accord and satisfaction as to the damages claimed by plaintiff to be due from defendant because of association of defendant with plaintiff’s wife was had, . . .
Defendant’s answer further alleged that on the day following the foregoing agreement plaintiff and defendant went to Kingman (at some distance from Lansdown where the parties resided) to carry their agreement into effect, and that they went to the office of plaintiff’s counsel, and after a private conference between plaintiff and his counsel, the latter told defendant that the agreed amount would not be accepted, and that defendant then signed the agreement for the larger amount under the circumstances above.
Defendant concluded his answer with a prayer that plaintiff take nothing by his alleged cause of action, and in a cross petition defendant prayed for the return of the $500 plaintiff had wrongfully obtained from him as shown above.
Plaintiff’s reply contained a demurrer, a general denial, and a plea of. ratification which in substance alleged that although the contract sued on recited that the $500 was paid in cash, yet it was in fact paid by a bank check which defendant requested plaintiff not to present for payment until he could procure sufficient funds to meet it, and that plaintiff complied with that request, and that defendant had ample time and full opportunity—
“To consider all of the facts and circumstances involved, and the results and effect of said contract, [and] did make arrangements for said funds and did pay check, and did thereafter make no objection to said contract of the nature and character set.forth in his answer herein, ...”
Plaintiff’s reply further alleged that not long after the contract was made defendant began to urge the plaintiff to accept a less amount than the contract stipulated—
“To avoid bringing an action thereon and thereby subjecting plaintiff and plaintiff’s wife to the disadvantage of bringing and maintaining an action on said contract, and suffering the humiliation and embarrassment that would result therefrom, and . . . said defendant should not now be permitted to change his position and assert, as his reasons for refusing to perform said contract, matters wholly inconsistent with the reasons and methods heretofore adopted and practiced by him, but should be held to have ratified and endorsed said settlement and contract and be bound thereby.” ,
When the cause was called for trial before a jury, counsel for both parties made extended opening statements, after which idefendant assumed the burden of the evidence which followed and enlarged upon the facts pleaded in defense.
It was shown without dispute that by the terms of the alleged original settlement pleaded in defendant’s answer the amount $400 was an error of the pleader and should have been $800; also that by defendant’s plea of “accord and satisfaction” it was intended to plead “compromise and settlement” and an account stated.
When defendant rested, plaintiff demurred to the evidence and moved for judgment. That motion was sustained and judgment was entered for the amount due on the contract, and for interest' and costs. •
Defendant appeals, contending first that there was no consideration for the contract. On this point it is argued, in part, that there was no evidence of illicit relations between defendant and plaintiff’s wife. We think the circumstances surrounding the alleged compromise and settlement for $3,000 clearly showed that defendant’s invasion of plaintiff’s conjugal rights was taken for granted, and the written contract contains admissions which tacitly conceded that plaintiff had a colorable cause of action, at least, against defendant which would serve as sufficient consideration for the contract. In Reed v. Kansas Postal Telegraph & Cable Co., 125 Kan. 603, 264 Pac. 1065, 57 A. L. R. 275, it was said:
“Where one in good faith asserts a claim not obviously invalid, worthless, or frivolous, and which might be thought to be reasonably doubtful, the forbearance to prosecute such a claim will furnish a sufficient consideration for a promise of settlement and compromise of such claim.” (Syl.)
In Sawtelle v. Cosden Oil & Gas Co., 128 Kan. 220, 277 Pac. 45, it was said:
“It does not take a legal cinch to form a sufficient consideration for a settlement; a fairly debatable point is quite enough.” (p. 228.)
But it is argued that the invasion of a husband’s conjugal rights is not actionable in Kansas. We have held that a husband has an action for damages for the alienation .of his wife’s affections; and circumstantial evidence tending to prove illicit relations between a defendant and the plaintiff’s wife had probative force sufficient to establish the cause of action. (Warnock v. Moore, 91 Kan. 262, 137 Pac. 959.) We have also held that a parent has an action for the seduction of his grown daughter based upon the incidental family shame and mortification, and that the common-law theory of loss of the daughter’s services as the basis for the action was not essential to a recovery. (Anthony v. Norton, 60 Kan. 341, 56 Pac. 529, 72 A. S. R. 360. See, also, note in 76 A. S. R. 659-682.) Thus reasoning, we could not hold that the husband’s shame and mortification incidental to the seduction of his wife or criminal conversation with her was not actionable. Although there are decisions to the contrary, some of which are based on statutes, the weight of authority supports this view. In 27 Am. Jur. 135 it is said:
“A fundamental right which flows from the relation of marriage, and one which the well-being of society requires should be maintained inviolate, is that of one spouse to have exclusive marital intercourse with the other, and whenever a third person commits adultery with either spouse, he or she commits a tortious invasion of the rights of the other spouse, from which a cause of action for criminal conversation arises. At common law such a cause of action exists in favor of the husband against one who commits adultery with his wife, which is not affected by the married women’s property acts.”
In the same work, -at page 143, it is said:
“The plaintiff in an action for criminal conversation may recover substantial damages for the adultery itself, independent of his or her loss of consortium of his or her spouse. The plaintiff may also recover for all direct and proximate losses occasioned by the tort, including loss of love and consortium, and he or she may recover for any physical pain, mental agony, lacerated feelings, wounded sensibilities, etc.”
See, also, 13 R. C. L. 1484-1489, and 5 Perm. Supp. 3502, 3503; 30 C. J. 1153; Restatement, Torts, § 685.
It is .next contended that because of the oral contract between plaintiff and defendant that plaintiff would accept $800 in full settlement of plaintiff’s claim for damages for defendant’s wrongdoing, such settlement constituted an account stated, and a binding compromise and settlement. So far as the facts of that oral contract were concerned, the trial court was bound to believe defendant’s evidence, since it ruled adversely to their sufficiency as a defense to the contract. However, in summarizing the evidence and reasoning to the conclusion that judgment should be entered for plaintiff, the trial court stated that it gave full credence to defendant’s testimony. The record, in part, reads:
“By the Court: Well, the way I look at this, here we have a Written contract ... is a solemn obligation between the parties. This contract just about recites what the evidence shows here. ... I think Mr. Foley is to be complimented for adhering very closely to the truth of these transactions. I don’t have any difficulty whatever to believe Mr. Foley’s testimony. . . . but he doesn’t show anything to set aside this contract, . . . there is nothing to show there was any misrepresentation about anything. About that duress, that is necessarily something more than mere solicitation, argument or opinion. Duress must go to the extent of destroying a man’s volition, his ability and capacity to act. Nothing here to show that Mr. Foley was so overpowered that he didn’t have his free will to the end to act. I don’t find that he was threatened with any criminal prosecution or any imprisonment or any corporal punishment. None of those mentioned. ... As to this $400 contract which you plead, that I think Mr. Foley and Mrs. Foley both very readily admitted that never was consummated. That there was an offer and tacitly agreed upon an amount, but when they went to write it down they both said they couldn’t agree on what to put in the contract and so they came to Kingman to get it done, so up to that time there hadn’t been any meeting of the minds as to what this $400 or $800 was to compensate for, and as to the consideration, I can’t see but what you must rely upon the contract. As I say, it imports a consideration. Nothing here to show that the consideration recited in the contract was lacking, or was lacking at the time, so I wouldn’t know how to instruct the jury as to what they were to decide. As to the facts they would find, if they believed everything that Mr. and Mrs. Foley and the other witnesses have testified to there is no defense to the written contract, accordingly the demurrer will be sustained.”
What is relied on to prove duress was the conversation between defendant and plaintiff’s attorney at a meeting in the latter’s office. Defendant testified that when he and plaintiff tried to reduce their contract of settlement for $800 they discovered that they did not. know what language to put into that contract. They had agreed on the amount defendant was to pay, but what consideration he was to get for paying that amount had not been definitely determined, nor was it agreed between the parties as to the terms of payment. When they went to Kingman to employ a lawyer and informed him what was wanted plaintiff said it was to be a contract for “hush money.” That was indefinite and capable of various meanings. There is little doubt that defendant was tricked into going to that particular attorney’s office. He was the county attorney and an acquaintance of plaintiff. Defendant did not know him, but believed he and plaintiff were calling on a lawyer who would be fair to both of them. The county attorney invited defendant to step out of the room while he talked to plaintiff privately, and they soon agreed on a course of strategy—that the oral agreement to settle for $800 should be repudiated, and that the attorney should open negotiations with defendant for a better settlement, and that he, the attorney, should receive for his services one-third of whatever that amount should be. Accordingly defendant was called in and the attorney told defendant that $800 was mere chicken feed, that he had committed a terrible offense, that he was in as grave a mess as some local person named Davenport, which had cost him a farm; and the attorney demanded to know if defendant didn’t have a quarter section of land he would give to settle. On receiving a negative reply the attorney then named $5,000- as a suitable figure for settlement, then fell to $3,500, and eventually to $3,000, which defendant agreed to pay, and that agreement became the basis of the contract sued on.
Was there any evidence of duress? Possibly so, although the evidence .much more clearly shows fraud and deceit on the part of plaintiff in leading defendant to believe that the attorney would simply reduce the $800 contract to writing in lawyerlike terms, and that he “would be fair to both parties.” It is only fair to add, however, that while the record shows that the attorney was aggressive and sought to drive a hard bargain with defendant, there is no evidence that the attorney pretended “to be fair to both parties” or that he even knew he was expected to be other than the hired partisan of plaintiff in the negotiations. There is no pretense that the attorney was employed by defendant, or that defendant was expected to pay or did pay for his services.
, But assuming that the attorney’s aggressive attitude and his alarming language gave color of duress to defendant’s assent to the written contract, how long did that duress last? He appeared somewhat shaken when he rejoined his wife, and on the return journey to their home at Lansdown she drove their automobile, but that was not a rare thing for her to do. Plaintiff had agreed to hold the $500 check given as down payment on the $3,000 contract until defendant could arrange for funds to meet it. Plaintiff did hold it for seven days-before presenting it for payment. Defendant had that considerable interval to repudiate the contract and stop payment of the check if he had signed the contract under duress. There is no evidence that the alleged duress continued for that period of time. Moreover, about a month ■ after the contract was made, defendant began to urge plaintiff to reduce the. amount, but not on any pretense that it was signed under duress. Inferribly defendant’s repeated requests for a reduction • were based on the theory that plaintiff had as much1 to lose in the way of mortification and humiliation as the defendant if the contract should become the subject of a lawsuit. Conceding without deciding that the circumstances attending the making of the written contract had some color of duress, it is too clear for controversy that defendant ratified it by his subsequent acts'of affirmance and by refraining to repudiate it promptly..
In view of the conclusion, just reached .we deem, it needless to recapitulate the substance of our many decisions touching the essentials of duress which must be proved to avoid the binding force of a written instrument for the payment of money, but among our recent cases on this subject, see Western Paving Co. v. Sifers, 126 Kan. 460, 268 Pac. 803; Fritchen v. Mueller, 132 Kan. 491, 498, 297 Pac. 409; Brane v. First National Bank, 137 Kan. 403, 20 P. 2d 506; Ogle v. Freeman, 150 Kan. 864, 96 P. 2d 670.
Plaintiff cross-appealed oh the dverruling of his motion for judgment on the pleadings and defendant’s opening statement, but the conclusion we now reach renders that point immaterial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This was an action for personal injuries. Judgment was recovered against the defendants Martin and Madison. The appeal is by the defendant Martin.
On the date of the injury the defendant Madison owned and operated a storage garage in the city of Wichita. The plaintiff was a customer of this garage and on the date of the accident her car was in the garage for a wash job. At the time she was injured she was waiting at the side of the front door of the garage for her car to be delivered to her.
The defendant Martin was also a customer of the garage. He had been storing his car at this garage prior to the time Madison acquired the business and continued to store his car there after Madison took possession.
It was a part of the storage service to' deliver the patrons’ cars to the respective owners at the front door of the garage. On the day of the accident the plaintiff came to the garage at the appointed time to get her car. She followed Madison back into the garage, but Madison asked her to go back and stand by the front door and the car would be delivered to her.
Madison had in his employ one Mitchell, a garage attendant, whose duty, among other things, was to drive cars from their parked position in the garage to the front door for waiting patrons.
While plaintiff was standing by the front door of the garage awaiting her car, the defendant Martin appeared and told the garage attendant Mitchell to bring out his car. Plaintiff testified that defendant Martin used the following language: “I want my car and I am in a hurry, step on it.” As Mitchell was driving the car of defendant Martin through the front door of the garage the door of the car came open and swinging out struck the plaintiff. Plaintiff testified Mitchell drove the car through the door “at a terrific speed with the car door swinging open.” A witness for plaintiff, who saw the accident, stated:
“The car was traveling probably 10 or 12 miles an hour as it came through the door. It might have been making 15. It was in low gear. Mitchell was not driving the car any faster than usual.”
The impact of the swinging door of the car inflicted serious injuries to plaintiff, for which the action was brought.
Various errors are assigned. We have outlined above the evidence on the part of the plaintiff and will consider the contention that the court erred in overruling defendants’ demurrer to plaintiff’s evidence.
In testing the sufficiency of the evidence as against a demurrer, we are to consider all of the plaintiff’s evidence as true; we are to consider that favorable to the plaintiff and disregard that which is unfavorable; we are to consider all inferences as favorable to the plaintiff, and not weigh any part that is contradictory. (Robinson v. Short, 148 Kan. 134, 79 P. 2d 903.)
The theory upon which the action of plaintiff against Martin is predicated is thus stated by counsel in the brief on behalf of plaintiff:
“The very basis of our action is that Martin had no right to exercise any control over Mitchell except to tell him he wanted his automobile. But Martin did more than this, having a right to tell Mitchell to get his automobile, Martin committed such a tort in exceeding his authority over Mitchell by telling Mitchell he was in a hurry and to step on it, in directing the manner in which Mitchell should deliver his car, and by doing that Mitchell became the servant and agent of Martin in the manner in which Mitchell drove the automobile in obeyance of Martin’s orders, and the injuries to the plaintiff were sustained while Mitchell was so acting pursuant to Martin’s said orders.”
A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant is a persqn employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. (Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552.)
That a servant may be loaned or hired by his master to another for some special purpose and he becomes, the servant of such other person in performing such service is well settled in this state. (See Moseman v. Penwell Undertaking Co., 151 Kan. 610, 100 P. 2d 669, and cases there cited.)
The general rule as formulated in Restatement of the Law of Agency, § 227, reads:
“A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. He may become the other’s servant as to some acts and not as to others.”
Comment b under § 227 reads:
“In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.”
The following illustrations are under the same section:
“1. P, a taxicab company, rents a cab and driver to B for a day, upon the understanding that the driver is to take B anywhere that B wishes to go and is to obey all reasonable commands of B. In the absence of evidence that B is to control the details as to the management of the cab, A is P’s servant while driving the car.”
“2. P, a master plumber, sends one of his journeymen to make such repairs upon B’s premises as B shall point out, B to pay P at the rate of one dollar per hour for the journeyman’s time. In making repairs upon the plumbing, the journeyman is acting as P’s servant.”
“4. During the loading of P’s ship by B, a stevedore, the steam winch upon the ship operated by A, a member of the crew, is used to hoist goods from the dock to the hold. For this service B is to pay P. The servants of B direct A when to start and when to stop the winch. The inference is that in the management of the winch A acts as P’s servant.”
In Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922, the action was for personal injuries caused by the plaintiff being struck in the street by a horse or wagon driven by one Keenan. The facts were stated by the court:
“The defendant 'was engaged in general teaming business in Boston.’ He owned the horse and wagon, and employed Keenan and paid him his wages. Keenan’s only contract of employment was with him. For some time, however, Keenan had been carrying property for the' Boston Electric Light. Company, under some arrangement between the latter and the defendant. The general course of business, or at least that adopted on the day of the accident, was this. Early in the morning Keenan took the horse and wagon from the defendant’s stables and reported to the electric light company. An employee of that company would give him his orders as to what to do and where to go, and he spent the day in carrying these orders out. Sometimes he’ would help pull up arms on the poles, or pull up machinery, and the like. In driving, if he was directed to drive fast, he would drive fast, and if told that he' had time enough, he would take his time, but he chose his own route and had exclusive management of his horse. At night he returned to the defendant’s stables. He harnessed and unharnessed the horse, and fed it at noon. At the moment of the accident he was going to get some arms in pursuance of an order from the foreman of the electric light company.” (p. 417.)
In the opinion of the court, delivered by Holmes, C. J., it was stated:
“But the mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that, person’s servant. More than that is necessary to take him out of the relation established by the only contract which he has made and to make him a voluntary subject of a new sovereign—as the master sometimes was called in the old books.
“In this case the contract between the defendant and the electric light company was not stated in terms, but it fairly could have been found to have been an ordinary contract by the defendant to do his regular business by his servants in the common way. In all probability it was nothing more. Of course in such case's the party who employs the contractor indicates the work to be done and in that sense controls the servant, as he would control the contractor if he were present. But the person who receives such orders is not subject to the general orders of the party who gives them. He does his own business in his own way, and the orders which he receives simply point out to him the work which he or his master has undertaken to do. There is not that degree of intimacy and generality in the subjection of one to the other which is necessary in order to identify the two and to make the employer liable under the fiction that the act of the employed is his act.
“In cases like the present, there is a general consensus of authority that, although a driver may be ordered by those who have dealt with his master to go to this place or that, to take this or that burden, to hurry or to take his time, nevertheless in respect to the manner of his driving and the control of his horse he remains subject to no orders, but those of the man who pays him. Therefore he can make no one else liable if he negligently runs a person down in the street.” (pp. 418, 419.)
See, also, Charles v. Barrett, 233 N. Y. 127, 135 N. E. 199; Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480.
The evidence on the part of the plaintiff disclosed that Mitchell was employed by Madison, the owner of the garage, and that it was the duty of Mitchell to drive cars from their parked positions to the front door for waiting patrons. In driving the car of the defendant Martin to the front door of the garage, Mitchell was carrying out the orders of Madison. In order to fasten liability on Martin, it must appear that the legal relation of master and servant existing between Madison and Mitchell had been suspended for the time and that a new like relationship between Martin and Mitchell had been created. It was the duty of Mitchell to deliver the' car of Martin at the front door and there is no evidence that in performing such service he was not acting under the orders of and in allegiance to his employer Madison. The fact that Martin in requesting his car stated that he “was in a hurry—step on it,” did not translate Mitchell into a servant of Martin. See Driscoll v. Towle, supra. We do not think Mitchell was in the service of Martin at the time of the accident.
We have carefully examined the testimony submitted on the part of the defendant arid find no evidence that would cure the defects in plaintiff’s evidence above shown. It follows that the court erred in overruling defendant’s demurrer to plaintiff’s evidence. The judgment is reversed and the cause remanded with instructions to enter judgment in favor of defendant.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Harvey, J.:
A testator in his will named appellant to act as executor, expressed the hope he would accept and not resign, but if otherwise he named another person to be his executor. The probate court, upon the record noted herein, refused to appoint appellant and appointed the other person named. On appeal to the district court the rulings in the probate court were affirmed. Appellant contends these judgments were erroneous.
The record may be summarized or quoted from as follows: On September 4, 1941, there was filed in the office of the probate court of McPherson county the petition of Bernardine Grattan and Ernst F. Pihlblad for the probate of the last will and testament and three nuncupative codicils thereto of G. F. Grattan, deceased, and for letters testamentary. This petition alleged that Bernardine Grattan resides at 120 South Maple street in McPherson and Ernst F. Pihlblad in Lindsborg; that G. F. Grattan, a resident of McPherson county and a citizen of the United States, died August 30, 1941, survived by Bernardine Grattan, his niece and sole heir;
“That said decedent left a last will and testament dated August 9, 1941; that said decedent in-his last sickness made three nuncupative wills which are in fact codicils to the aforesaid will, on August 27, 1941, and which were reduced to writing and subscribed by two competent and disinterested witnesses on September 3, 1941; and that said will and said three nuncupative codicils thereto are filed herewith and hereby presented for probate. That said will and said three nuncupative codicils thereto are genuine and valid; that said decedent was of sound mind and not under any restraint at the time of the making of the same, and that said will and said three nuncupative codicils thereto are entitled to probate.”
The petition named the heir and beneficiaries of the will, estimated the value of the property of decedent to be $150,000, and alleged:
“That in said will said decedent named the petitioner Ernst P. Pihlblad as executor thereof; that in the first nuncupative codicil said decedent named the petitioner Bernardine Grattan as the executor thereof, but ’under the statute the same is valid only in respect to personal property; that each of the petitioners is willing to accept and undertake the trust confined [confided] to him and her by said decedent; that each of the petitioners is a proper and suitable person to whom to grant letters testamentary; that the appointment of executors is necessary for the conservation, collection, and administration of said property according to law and the will and codicils of the decedent, and that it is for the best interests of said estate and all persons concerned that both of the petitioners be appointed as coexecutors of the will and codicils of said decedent and letters testamentary be granted and issued to them as coexecutors.”
The prayer was that the will and the three nuncupative codicils thereto be admitted to probate; that both of the petitioners be appointed as coexecutors, and that letters testamentary be granted to’ them as such. The will filed with the petition, after formal parts, stated:
“My last blood relative, Martha Grattan-Sigler a widow died in Feb. 1941 childless excepting children of her foster son . . .” Past financial benefits to these people are referred to and their kindness remembered, but no devise or bequest is made to them.
“If Bernardine Grattan the daughter of my brother John M. Grattan, survives me and the probate hereof I give and bequeath and devise unto her' all of my undivided one half” of certain real property which the testator and his brother had owned together, and the executor was charged with the duty of paying taxes upon that property for the year of his death and during the administration of the estate.
“If Bernardine Grattan shall not so survive as above set forth, then the bequests and devises are void and pass into the rest and residue.”
Provision is made that the federal estate tax and the state inheritance tax should be paid from the residue.
“The duties of the executor are neither exacting nor burdensome—they ought not be delayed; I nominate and appoint Ernst F. Pihlblad executor hereof, and hope his acceptance and no resignation, but if otherwise I nominate and appoint Jay Crumpacker of McPherson, executor. Bonds of either waived unless required by statute. I give the executor or the successor, and to any one acting as such all power and authority needed or required, and this power is without exception.”
The will recited:
“I have lawfully distributed much property and hope hereafter to distribute much more.”
That as soon as the federal and state taxes were paid:
“I give and bequeath and devise subject to all of the above and foregoing unto the McPherson College of McPherson, Kansas, and unto the Bethany College of Lindsborg, Kansas, and unto the Bethel College of Newton, Kansas, all of the net residue and remainder and undivided one-third in and to such said net residue and remainder to each of them and to their successors and assigns forever to create additional endowment fund for each said above named colleges and to be used exclusively for educational and scientific purposes and not for profit or gain. In the event there be any lien or liens upon said net residue and remainder each said college shall pay the one-third thereof and clear all' the same from such lien or liens before they may enter into possession thereof. Each said college is organized and existing under and by virtue of laws of the state of Kansas: Each sa-id. college shall not- in any wise defeat, said endowment funds aforesaid. Each said college aforesaid were in the community where I earned said properties and they and their friends and acquaintances greatly aided me to so attain from the early years of my life.
“This entire instrument is drafted and typed by myself without the aid of any human being. I have given to other colleges and to the churches who might seem to have any claim upon me or my property and I have discharged any duty on my part.
“I hope, if I have a right to do so-, that the courts, will sustain all this will, and speedily at an early date make early distribution and close the estate.”
The form of the will indicates due execution.
Also filed with the petition were the three following instruments:
“NUNCUPATIVE WILL OP 0. P. GRATTAN
“State of Kansas, County of McPherson, ss:
“I, J. R. Rhoades, a resident of McPherson, Kansas, do hereby certify that on August 27, 1941, at about 8 o’clock p. m. a telephone call came to my office from Bernadine Grattan saying that Uncle Prank wanted to see me, and that I should come down right away, and I immediately went to the home of Mrs. Leaetta Grattan at 120 South Maple Street, McPherson, Kansas, and when I arrived there I found G. P. Grattan in bed and also present were Martha M. Kaufman, a nurse, Mrs. Leaetta Grattan, and Bernadine Grattan; and I, Martha M. Kaufman, of McPherson, Kansas, do hereby certify that at the aforesaid time and place I was the nurse attending Mr. G. F. Grattan; and I, Leaetta Grattan, of McPherson, Kansas, do hereby certify that at the aforesaid time and place I was in my home as aforesaid and attending Mr. G. P. Grattan.
“And we, the undersigned, do hereby certify that at the aforesaid time and place, the said G. P. Grattan, being in his last sickness, in the presence of the undersigned, and after calling upon the undersigned to bear witness thereof, did state' and declare that he had made his last will and testament, that Bernadine Grattan knew where the same had been placed, and that he now desired to make a nuncupative will to be taken as a part of the same and disposing of part of his personal property.
“He did further sta-te and declare as follows:
‘I have given Bernadine Grattan $2,033 in money, and it is my will that she have the same.’
‘I give. Bernadine Grattan, my brother John’s only child', my bonds, there are $24,000 and $25,000.’
‘I have, given Bernadine Grattan m.y keys and she is to take charge of and have the' management of my estate. I have ample and sufficient money to pay all. taxes and same are to be paid therefrom.’
‘You, J. R. Rhoades, are to be the attorney for my estate and are to have reasonable and' just compensation for my services, but the same is to be, taken out of the other real estate and not the real estate' which I own with my brother John and have willed to Bernadine Grattan.’
“And we, the undersigned, do hereby further certify that at the time' the foregoing testamentary words were spoken by the said G. F. Grattan he was in his last sickness, of sound mind and memory, and not under any restraint, and that he called upon the undersigned, who were then present and in the presence of each other, to bear testimony to said disposition as his nuncupative will.
“Reduced to writing and subscribed by us as witnesses this 3d day of Saptember, 1941.
“J. R. Rhoades, Martha M. Kaufman, R. N., Mrs. Leaetta Grattan.”
“SECOND NUNCUPATIVE WILL OF G. F. GRATTAN
“State of Kansas, County of McPherson, ss:
“On August 27, 1941, at about 9 o’clock p. m., G. F. Grattan, being in his last sickness, at the home of Mrs. Leaetta Grattan at 120 South Maple street, McPherson, Kansas, in the presence of the undersigned witnesses, did make a nuncupative will to be taken as a part of his will, and disposing of part of his personal property, as follows:
‘I want her (pointing to Mrs. Leaetta Grattan) to have $5,000. In my pants pocket you will find a diamond ring. I want her to have that. At the office in my wallet there are some big bills that amount to $100. I want her to have that. I have $65 more. I want her to have that. I want her to have the lawn mower in the basement.’
“At the time that the foregoing testamentary words were spoken the said G. F. Grattan was of sound mind and memory and not under any restraint, and he called upon the undersigned who were then present and in the presence of each other to bear testimony of his disposition thereby made of a part of his pei'sonal property.
“Reduced to writing and subscribed by us as witnesses this 3d day of September, 1941.
“Martha M. Kaufman, R. 1ST. Bernardine Grattan.”
“third NUNCUPATIVE WILL OF G'. F. GRATTAN
“State of Kansas, County of McPherson, ss:
“On August 27, 1941, at about 9 o-’clock p. m., G. F. Grattan, being in his last sickness, at the home of Mrs. Leaetta Grattan at 120 South Maple street, McPherson, Kansas, in the presence of the undersigned witnesses, did make a nuncupative will to be taken as a part of his will, and disposing of part of his personal property, as follows:
‘I want her, Bernadine (pointing to Bernadine Grattan) to have $5,000 in addition to the $5,000 she receives under my will'.’
“At the time that, the foregoing testamentary words were spoken the said G. F. Grattan was of sound mind and memory and not under any restraint, and he called upon the undersigned who were then present and in the presence of each other to bear testimony of his disposition thereby made of a part of his personal property.
“Reduced to writing and subscribed by us as witnesses this 3d day of September, 1941.
“Martha M. Kaufman, R. N. Mrs. Leaetta Grattan.”
September 26, 1941, was fixed for the hearing of the petition, and due notice was given to all interested parties. On September 25, 1941, the three colleges named as beneficiaries of the residuary estate in the will of August 9, 1941, filed an answer to the petition in which they alleged that the instrument dated August 9, 1941, is the last will and testament of G. F. Grattan, deceased; that it was duly executed on that date when the testator was of full age, of sound mind and not under any restraint, and that the same should be admitted to probate; that the three instruments purporting to be nuncupative wills were invalid for reasons stated and were not entitled to probate, and that Jay Crumpacker of McPherson, named in the will of deceased as executor, is a proper person to act as such, and prayed that the instrument of August 9, 1941, be admitted to probate and that letters testamentary be issued to Jay Crumpacker as executor thereof, and that the purported nuncupative wills be declared invalid and not entitled to probate. On September 26, the petitioners appeared in person and by their attorneys, Johnson, Rhoades & Lehmberg; Bernardine Grattan and Leaetta Grattan appeared by W. D. P. Carey, their attorney, and the three colleges appeared by their respective presidents and by E. R. Sloan, James H. Cassler and L. H.' Ruppenthal, their attorneys. Bernardine Grattan and Leaetta Grattan made an' oral application for a continuance of the hearing to October 27, 1941, which application was granted, and upon an oral application the court appointed Paul E. Sargent as special administrator and fixed his duties, and also appointed the firm of Johnson, Rhoades & Lehmberg as attorneys for the special administrator. On October 24, 1941, upon the application of the attorneys for Bernardine Grattan and Leaetta Grattan the hearing set for October 27 was continued until November 4, 1941. On November 3, 1941, J. H. Rhoades and George R. Lehmberg (the only active members of the firm of Johnson, Rhoades & Lehmberg) filed in the probate court the following:
"withdrawal op attorneys
“Come now J. R. Rhoades and George R. Lehmberg, attorneys of record for Bernardine Grattan, one of the .petitioners in the petition for probate of will and codicils and for letters testamentary in the above entitled matter, and state that they withdraw as attorneys for the said petitioner, Bernardine Grattan.”
On the same date and on behalf of Ernst F. Pihlblad they filed a petition in which he stated—
“. . . that he withdraws as a petitioner for probate of the alleged three nuncupative wills made on August 27, 1941, and alleged to be codicils to the written will of said decedent made on August 9, 1941, and as a petitioner for the appointment of Bernardine Grattan as a coexecutor and letters testamentary to her.
“Wherefore, said petitioner continues to ask that the written will of said decedent, dated August 9, 1941, be admitted to probate, that the petitioner be appointed as executor of said will, and that letters testamentary be granted and issued to the petitioner, Ernst F. Pihlblad.”
On November 4, 1941, Bernardine Grattan, as petitioner, and her attorneys, Williams, Martindell, Carey & Brown, filed a petition and withdrawal from petition for the probate of the will and codicils and for letters testamentary. This recites that she had joined with Ernst F. Pihlblad in the petition for probate filed September 4, 1941, and states—
“. . . that at the time she joined in said petition she had not employed, counsel to represent and advise her with reference to her rights as sole and only heir at law of G. F. Grattan, deceased, and her rights under the laws of the state of Kansas and her rights under the purported will of G. F. Grattan, deceased, or the three instruments attached to the above mentioned petition as nuncupative wills, and that she was, therefore, not fully advised in respect thereof. . . . that she desires to, and does hereby, withdraw from said petition for the probate of will and codicils and for letters testamentary, filed herein as aforesaid, without prejudice as to future action in respect thereof by your petitioner.” . . . and “states to the court that she is entitled to 'have her name withdrawn and stricken from said petition wherever her name occurs therein, including her signature to, and her verification of, said petition, . . . all without prejudice and with the right reserved to your petitioner to make application for admission to probate of said instruments attached to said petition as nuncupative wills at any time within six months after the death of G. F. Grattan, deceased.”
The prayer was. in harmony with these allegations. At the hearing on November 4 the court recognized, without disapproval, the petition of Ernst F. Pihlblad, filed November 3, to withdraw as petitioner for the probate of the three instruments designated nuncupative wills and for the appointment of Bernardine Grattan as coexecutor and remaining solely as petitioner for the probate of the will dated August 9, 1941, and for letters testamentary thereon to himself, and of the withdrawal of the attorneys, Rhoades & Lehmberg, on November 3, 1941, as attorneys for the petitioner, Bernardine Grattan, and their authority to remain solely as attorneys for the petitioner, Ernst F. Pihlblad. Bernardine Grattan and Leaetta Grattan appeared in person and by their attorneys, Williams, Mar tindell, Carey & Brown, and the three colleges referred to appeared by their respective presidents and their attorneys, Sloan, Hamilton & Sloan and Cassler & Ruppenthal. The court considered the petition of Bernardine Grattan, filed November 4, to withdraw from the petition for the probate of the will and the three instruments designated nuncupative wills and granted the petition, “but that part of said petition pertaining to the withholding or withdrawal of the three instruments designated nuncupative wills for admission to probate is by the court denied.” The court found these three instruments, designated nuncupative .wills, were in the custody of the court, and ordered that the testimony in respect to them be presented in connection with the testimony of the witnesses to the will “in order that the court may determine whether said instruments should be admitted to probate.” Upon consideration of the evidence pre.sented in behalf of the petition of Ernst F. Pihlblad and the cross petition of the residuary legatees for the probate of the will dated August 9., and for letters testamentary thereon, the court found that the instrument was duly executed according to law; that the testator was .at the time of sound mind, of legal age, and under .no restraint or influence; that the will is valid and genuine, and should be admitted to probate, and 'made an order admitting it to probate. The court then heard the evidence respecting the three instruments designated nuncupative wills and made an order refusing to admit them <to probate. Also a hearing was had upon the petition of Ernst F. Pihlblad and the cross petition of the residuary legatees and devisees for the appointment of an executor, and having heard the evidence and argument of counsel the court on its own motion reserved judgment. Thereupon Bernardine Grattan made oral application to the court for the appointment of herself, as the sole and only heir of decedent, as administratrix with the will annexed. On November 5, 1941, the court, having considered the matter of the appointment of an executor, found “that the application of Ernst F. Pihlblad for such appointment should be refused, that the oral application of Bernardine Gratton, ... for appointment as administratrix with will annexed, should be refused, and that Jay Crumpacker should be appointed as such executor.” An order was made in harmony with these findings.
On November 6, 1941, Mr. Jay Crumpacker duly qualified, and letters testamentary were issued to him. On November 7, 1941, Ernst F. Pihlblad served and filed his notice of appeal to the dis trict court from the orders and judgment of the court of November 5, refusing to appoint him and appointing Jay Crumpacker executor of the estate.
In the district court the hearing was had January 16, 1942. The appellant, Ernst F. Pihlblad, appeared in person and by Mr. Lehmberg, of Johnson, Rhoades & Lehmberg, his attorneys, the three colleges appeared by E. R. Sloan and L. H. Ruppenthal, their attorneys, and Jay Crumpacker, as executor, appeared by L. H. Ruppenthal, his attorney. The complete record of the proceedings in the probate court was presented for the court’s consideration.
Ernst F. Pihlblad testified in his own behalf that he resides at Lindsborg, where he has lived since he was eleven years of age; that he was now sixty-eight; that he-was graduated from Bethany College and received his religious training at Augustana Theological Seminary, has a B. A. degree and a degree which corresponds with a B. D. degree; that he was president of Bethany College from 1904 until June, 1941, and is now president emeritus, and has a church in Saline county; that he was appointed a member of .the .state board of education, which position he resigned to be elected state senator, serving one term, and later was appointed a member of the state civil service board and is its chairman; that .since he was a boy he has known G. F. Grattan, had visited him in his hotel room and his office, and Mr. Grattan had visited the witness at his home; that he did not know Mr. Grattan had made a will, or had named him as executor, until after Mr. Grattan’.s death; that about September 4,1941, Mr. Rhoades and Bernardine Grattan .came to his home, showed him the written will and the three nuncupative wills, and a petition which had been prepared for the admission of the wills to probate; that the witness signed the petition shown by the record; that in doing so he relied upon Mr. Rhoades,, who had been attorney for the -college for many years; the witness had come in close contact with him, and naturally depended on him; that witness never h-ad an occasion to use an attorney, had been ‘in district court but ¡once before in any capacity; that he had never been charged or- convicted of a crime; that he now is and at all times has been willing, to accept the trust imposed upon him by the will and to act as executor; that if he were appointed and it became necessary to'bring suit against Bernardine Grattan because-of her claims to certain bonds he would file the suit for their possession; that he is willing to perform all the duties imposed uj)ón him by law, and to act as executor; that prior to November 4,1941, he gave instructions to file a withdrawal from the petition so that he would appear solely as petitioner for the admission of the written will and of his appointment as executor. He further testified that he had no interest in the estate except to be executor, at Mr. Grattan’s request; that he thought he was accepting the trust when he filed the petition in which he alleged there were three nuncupative wills, and that they were genuine and valid; knowing that the claimed noncupative wills disposed of some $50,000 worth of property which under the original will had gone to residuary beneficiaries; that, naturally, he wanted to carry out Mr. Grattan’s desires; he didn’t know—in fact, the first time he ever heard of the term “nuncupative will” was when Mr. Rhoades used it at his home when Bernardine Grattan was with him; that the witness then understood that Mr. Rhoades was Miss Grattan’s attorney; that she was the beneficiary of the nuncupative wills, and with that knowledge signed the petition, thinking that was a part of his trust; that he thought he was carrying out the trust when he asked the court to appoint Bernardine Grattan as coexecutor; that Mr. Rhoades explained it to the witness; that he knew Bernardine’s claim under the nuncupative will was not consistent with the written will. “I was desirous of Mr. Grattan’s wishes to be carried out. I wasn’t thinking of the will; I was thinking of his desires. I didn’t know the force of a nuncupative will.” That in signing the petition he acted upon the advice of Mr. Rhoades, and since then has been following his advice; that Mr. Rhoades continues to represent the witness, who intends to continue to follow his advice; that on two or three occasions he had specifically asked Mr. Rhoades and Mr. Lehmberg to act as his attorneys.
Mr. J. R. Rhoades was called as a witness for appellant. Counsel for appellees objected to his testimony. The objection was sustained, but for the purpose of making a record he was asked and answered many questions. On motion of appellees his testimony was stricken out and not-considered by the court.
Jay Crumpacker was called as a witness for appellees, whereupon it was admitted by appellant’s counsel that the witness is a person qualified to act as executor, but not under the circumstances of this case.
“The Court : In other words, if Dr. Pihlblad is in fact disqualified, then this gentleman is aualified? ■;
“Counsel for Appellant: Ves. 'We are not raising any question as to his qualifications.”
The court ruled as follows:
“The memorandum decision of the court is that the judgment and decision and order of the probate court of McPherson county is affirmed and that Jay Crumpacker be appointed as executor of the last will and testament of G. F. Grattan, deceased, is affirmed; that the court is of the opinion that under the constitution of Kansas that the probate court, being a court of record, has the inherent power to disregard a nomination by a testator and appoint as executor or as administrator with the will annexed a person whom the probate court finds suitable, the effect of the probate court’s refusal to appoint the nominee being that the nominee is unsuitable. The court further finds that in the absence of the showing of an abuse of discretion that it is a matter that should not be inquired into too strongly by other courts, the probate court being the court who has the constitutional and statutory power under the probate code of directing and controlling the acts and conduct of the appointee, and such appointment is a judicial function which may not be controlled by the testator. The nomination of the testator should be considered only as a request for appointment.”
On January 17, 1942, the appellant filed a motion for a new trial upon the grounds: First, erroneous rulings of the court; second, the decision and judgment is in whole or in part contrary to the evidence; third, abuse of discretion by the court. This motion was considered by the court and overruled January 23, 1942. Notice of appeal was served and filed March 9, 1942, from the judgment of January 16, 1942, and from the overruling of the motion for a new trial.
We turn now to the legal questions involved. We wish to make it clear that no question is presented to us at this time respecting the validity of any or all of the so-called nuncupative wills, nor respecting the construction of or force to be given to any of them, if valid. Appellant naturally recites and relies strongly on -our statute (G. S. 1941 Supp. 59-701), which reads:
“Letters testamentary shall be granted to the executor, if any is named in the will, if he is legally competent and shall accept the trust; otherwise letters of administration shall be granted with the will annexed.”
Taken originally from Missouri, this statute, in slightly different wording, always has been a part of bur law. (Stat. of Kan. Ter. 1855, ch. 1, § 9; Laws 1859, ch. 2, § 8; Gen. Laws 1862, ch. 91, § 8; Gen. Stat. 1868, ch. 37, §§ 2 and 7; G. S. 1935, 22-302, 22-307.)
We cannot agree with the reason given by the trial court for its holding, namely, “The nomination of the testator should be considered only as a request for appointment.” It is' much more than that; it is a part of the testator’s will. While the right to make a will is statutory, it is well established as the general rule that one who has the right and capacity to make a will has the right to name from among his acquaintances who are legally competent the person to act as executor of his estate. (See 33 C. J. S. 903; 21 Am. Jur. 404, and authorities there cited.) Some earlier authorities took note of the difference in language used by the testator where it was simply a nomination or a request on the one hand or an appointment on the other; but this distinction appears no longer to be regarded as important, and in any event has no force here, for the testator used the phrase “nominate and appoint.”
A difference should be noted in the authority of the court to appoint an executor and its authority to appoint an administrator of an intestate -estate. In the appointment of an executor the authority -of the court comes from the will and the' statute (G. S. 1941 Supp. 59-701); in the appointment of an administrator the authority of the court comes wholly from the statute (G. S. 1941 Supp. 59-705). With respect to the appointment of an administrator our statute (G. S. 1935, 22-312), in effect prior to the enactment of the probate code, designated classes of persons having priority of rights of appointment, and although the -imperative word “shall” was used, this court in several cases held the probate court had a measure of discretion with respect to the appointment, governed by the thought of having a competent, well-qualified administrator. (Brown v. Dunlap, 70 Kan. 668, 79 Pac. 145.) In the new probate code t'he former sections of our -statutes pertaining to this question were rewritten so as to make more definite, and perhaps enlarge, the discretionary power of the probate court in making the appointment (G. S. 1941 Supp. 59-705). No such enlargement of the discretionary power of the court was made with reference to the appointment of an executor.
We take note of the fact that the old doctrines that an executor derives his sole authority from the will, that he might act if not appointed by the court, or if appointed that he could act under the will without his acts being supervised by the court, and without being required to give bond or to report to the court, or to permit the court to settle his accounts, if the will so provided, have gradually given way, and it is now the settled law of this state that the authority of an executor given by the will can be exercised only in a limited measure prior to his appointment by the court, and his due qualification (G. S. 1941 Supp. 59-704); that he must render his accounts to the court, and ultimately have them approved by the court. (G. S. 1941 Supp. 59-1201; 59-1401; 59-1501.) There is very little difference under our present law in the manner in which an estate shall be handled by an executor or by an administrator, aside, perhaps, from such provisions in the will as the vesting of title in the executor and giving him specific authority to sell.
Instances may and do arise when the owner of a property desires it to be distributed in harmony, with the law of descent, but the condition of the property is such that he thinks a particular person can best administer it, and he makes a will for the sole purpose of naming an executor. He has a perfect right to do that, and the court should carry out his will in that regard, if it is in harmony with our statute (G. S. 1941 Supp. 59-701).
While it is deemed proper to set out the general rules of law above mentioned they are not seriously controverted in -the briefs before us. The statute above quoted (G. S. 1941 Supp. 59-701) uses the word “shall” in the imperative sense, that it is the -duty of the probate court, when a will is admitted to probate in which the testator has named an executor., to appoint the executor so named if he is legally competent and accepts the trust.
Generally, it is said that one is legally -competent to act as executor if he- is legally competent to make a will. In '2 Blackstone’s Commentaries, 503, it is said:
“An executor is he to whom another man commits by will the execution of that his last will and testament. And all persons are capable of being executors that are capable of making wills, and many others besides; as femecoverts and infants; ...”
Under this broad doctrine lack of education, or of business experience, old age, illness, dissolute habits, the conviction of crime not involving moral turpitude, indebtedness to the estate, or the fact that the one named claims property as his own which is disposed- of by the will, have been held not to render one legally incompetent to act as an executor. Even though the condition of the person named as executor in the will, or his habits or his relation to the estate or one or more of the beneficiaries to the will., are such that the court with reason might think that the appointment would be an improvident one, many of the authorities say he should be appointed, for if he does not handle the estate properly he can be removed, and in determining whether an .executor should be removed the court has discretion. Under the common law .about the only persons who were disqualified to act as executors were imbeciles, or persons adjudged insane, or those who had been convicted of heinous crime. Since the following of this doctrine to its fullest extent at times brought undesirable results, the legislatures of some of the states have enacted statutes moré specifically specifying those 'who may be appointed executors, as New York. (Surrogate’s Court Act, § 94.)
In Minnesota, the, supreme court, in In re Estate of Betts, 185 Minn. 627, 240 N. W. 904, 243 N. W. 58, construing a statute similar to ours, held the statute to be mandatory even though the executor named in the will was a debtor or a creditor of the testator, or had interests hostile to others interested in the estate. Following that decision, the legislature amended the statute so as to provide:
. . If any executor named in the will is found by the court to be suitable and competent to discharge the trust, he shall be appointed. . . .” (Laws 1935, ch. 72, § 58.)
Since it is important in the administration of an estate to have a competent executor, the courts of some states have taken the view that the section of the statute which authorizes the removal of an executor and clearly gives the court discretion should be read in connection with the statute for the appointment of an executor to the extent that the court may exercise its. discretion upon the question of whether the person named in the will is suitable for the trust (In re Estate of Cachelin, 124 Neb. 556, 247 N. W. 422, and authorities there cited); and some courts have taken the view that the appointment of an executor by the testator should stand unless it is shown that the appointment would not have been made by the testator if he would have had knowledge of the condition existing at the time the court is asked to confirm such appointment. (In re Estate of Schneider, 224 Ia. 598, 277 N. W. 567.)
In a note, 95 A. L. R. 828, where many cases are annotated, it is said: .
“The rule is well settled that' ordinarily courts have no discretion in respect to the issue of letters to the persons nominated in the will, unless such persons are expressly disqualified or such discretion is created by statute; . .
Later cases on the same point are: Estate of Lawrence, 53 Ariz. 1, 85 P. 2d 45; In re Workman’s Estate, 151 Ore. 475, 49 P. 2d 1136; Estate of Svacina, 239 Wis. 436, 1 N. W. 2d 780; Robinson v. Robinson, 178 Md. 623, 16 Atl. 2d 854; Nonnast v. Northern Trust Co., 374 Ill. 248, 29 N. E. 2d 251.
The only specific statutes we have relating to competency of an executor are G. S. 1941 Supp. 59-702, regarding minors; 59-706, requiring residence; and 59-1701, relating to corporations. This court heretofore has not had occasion to pass upon the question of the discretion of a probate court in the appointment of an executor. If other disqualifications are to be added the legislature should do it rather than the court.
Considering our statute (G. S. 1941 Supp. 59-701) in the light of the authorities above discussed, when the testator makes a will in which he names an executor the probate court should appoint the executor so named and is not authorized to exercise any discretion respecting the appointment if the person named as executor in the will is legally competent and will accept the trust.
The well-established general rule is that one is “legally competent” to act as an executor if he is legally competent to make a will; but it appears always to have been the rule that peculiar and abnormal facts disclosed may make it clear that the person designated is not a suitable person. (1 Bartlett’s Kansas Probate Law and Practice, § 533, p. 545.)
No one in this case contends that Ernst F. Pihlblad is not legally competent to make a will. In their brief appellees argue that the signing of the petition, hereinbefore set out, for the probate of the will of August 9 and of the three instruments denominated nuncupative wills of August 27, in which it was alleged that all of them were valid instruments and should be admitted to probate, and asking for the appointment of Miss Grattan and himself as co-executors, which petition was signed upon the advice of Mr. Rhoades, attorney for Miss Grattan, who is now acting as attorney for Doctor Pihlblad, who testified his intention was to continue to follow Mr. Rhoades’ advice, is substantial evidence that he is not legally competent. The point is not well taken. Ignorance of law or of legal procedure, when applied to an executor of a will, never has been regarded as constituting legal incompetency; otherwise, laymen as a rule would be excluded from acting as executors. An executor is entitled to have an attorney, and normally is expected to follow the advice of his attorney. The evidence discloses that Doctor Pihlblad has and for many years has had a high standing, not only in his home county but throughout the state, as an educator and theologian. No one attributes any intentional bad motives to him.
One who is named by a testator as the executor of his will is not bound to accept the trust. He may refuse to accept by some in strument to. that effect filed with the court, by his long delay in asking the- court to appoint, him, or by his refusal to qualify if appointed ; or he. may be shown to. have declined to accept the trust by acts in pais. (See: 33 G. J.. S. 917-920.) Whether he is legally competent, or whether he has declined to accept the trust, are matters which must be determined by the probate court when called upon to make an appointment. (State, ex rel., v. Holtcamp, 267 Mo. 412, 185 S. W. 201.)
It- is argued on behalf of appellees’ that the filing by appellant of the petition above mentioned, and his request that Miss Grattan be appointed coexecutor with him, was an effective and complete renunciation on his part of his right to be appointed sole executor of the will in which he was named as executor; that Doctor Pihlblad’s only interest in the matter, and his only duty, was to petition for the probate of the written will of August 9 and for his appointment as sole executor. The court cannot agree with this contention. In that petition Doctor Pihlblad and Miss Grattan specifically alleged “that each, of the petitioners is willing to accept and undertake the trust confided to him and her by said decedent.” In view of that language we think it impossible to say that the petition as a whole should be construed as a renunciation or a refusal on his part to accept the trust imposed by the- will in which he was named executor. It is true the petition might have been framed differently; perhaps i't should have been; but even had the petition been limited to the written will of August 9, in fairness to the court and the parties in- interest, the- petition should have advised the court of the claimed nuncupative wills; perhaps should have set them out and asked the court to determine their validity, and if any of them was' found to be valid, the effect upon the written will of August 9.
Even though the signing and filing of that petition might have been construed, as a refusal on the part of Doctor Pihlblad to accept the trust imposed upon him by the will of August 9, he withdrew that part of the petition on November 3 before the- hearing on November 4. It is the general rule that where an executor named in a will at first refuses to accept the trust he may withdraw that refusal before an executor or an administrator with the will annexed is appointed. (See 33 C. J. S. 919;- 21 Am. Jur. 431, and authorities there cited.) As the pleadings stood on November 4, Doctor Pihlblad was not asking for the probate of the instruments denominated nuncupative wills; neither was he asking that Miss Grattan be appointed as coexecutor.
Counsel for appellees contend that since the probate court had before it for judicial determination the question whether Doctor Pihlblad had refused to accept the trust imposed upon him by the written will of August 9, and also the question whether there had been a good faith withdrawal of that refusal, the court was called upon to exercise its general powers with respect to the hearing of controverted matters, including the appearance and conduct of witnesses and the weighing of their testimony, and if there was any substantial evidence to sustain the ruling of the court, that ruling should not be disturbed. The difficulty with giving force to this contention in this action is that the court is unable to find from the record any substantial competent evidence that Doctor Pihlblad refused to accept the trust imposed upon him by the written will of August 9, or that he had any intention of refusing to do so, and having joined in filing a petition, which might possibly be otherwise construed, effectively made it clear before the hearing upon the petition that he asked only for the probate of the will in which he was named as executor and that he be appointed' as executor of the will.
The result is that the reasons given by the district court for its ruling cannot be approved, and we find no substantial evidence in the record which would have authorized or justified the probate court in refusing to appoint Doctor Pihlblad executor. Appellees point out that Mr. Crumpacker also had been named by the testator as. a person to be appointed as executor of his will. But the naming of Mr. Crumpacker was clearly in the alternative. The testator first named Doctor Pihlblad as executor and expressed the hope that he would accept and' not resign. It was only in the event that Doctor Pihlblad declined to accept, or resigned, that Mr. Crumpacker was to be appointed.
The judgment of the court below is reversed' with directions that the-appointment of Mr. Crumpacker be set aside and that Ernst E. Pihlblad be appointed executor of the will.
Dawson, C. J., dissents. | [
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The opinion of the court was delivered by
Dawson, C. J.:
Dr. E. H. Dellinger, a regularly practicing physician and surgeon of Anthony, performed eleven surgical operations upon indigent residents of Harper county, and thereafter presented to the county welfare board his bill for those services, $1,100 with interest. The county welfare board rejected the bill. Hence this lawsuit.
In his amended petition plaintiff alleged the pertinent facts—that "between the dates of February 4, 1938, and September 7, 1939, he performed the proper and necessary surgical services on eleven indigent residents of Harper county, to wit, four operations for acute appendicitis, two for gangrenous appendix, four for ruptured appendix, and one for cancer of the breast; that none of those indigent patients could pay for his services; that C. M. Scott, the county director who was duly authorized by the defendant board to direct the welfare work in Harper county, knew that each of the alleged operations was necessary and all were emergency cases and that “in each and every case said C. M. Scott . . . directed and authorized said operations.”
Plaintiff also alleged that he had presented to the defendant board his verified voucher for the alleged services, that his charges of $100 for each of them were reasonable, and that the defendant board “had failed to allow or disallow said claims.” Then followed eleven specific causes of action, with a prayer in each for $100 with interest from the date the particular service was rendered.
Attached to plaintiff’s petition was a copy of the verified claim he had presented to the county welfare board for payment. It is a document extending to three printed pages, one paragraph of which reads:
“That the county social welfare board of Harper- county, Kansas, has never entered into any agreement with the physicians and surgeons of Harper county, Kansas, as to who should perform professional services for indigent persons of Harper county, Kansas, nor has it made any arrangements for the payment of such services either with individual physicians or surgeons, or with the Harper County Medical Society, or otherwise.”
In its answer the defendant board made some general admissions and denials and alleged that since long prior to 1938 it had been the policy of the board of county commissioners of Harper county (on whom the duties of the county social welfare board afterwards devolved by subsequent legislation) “to allow no claims for major surgery- for indigent persons for the reason that such services had always been available without expense to said county.”
The answer further alleged that at the time C. M. Scott was employed as county director he was familiar with the aforesaid policy and that his authority was limited accordingly. It was further alleged—
“That defendant specifically denies that the said C. M. Scott, county director, at any time authorized plaintiff to perform any of the operations set forth in any of the causes of action in plaintiff’s amended petition and further alleges and states that the said C. M. Scott, county director, was without authority to authorize any of such operations and that had he done so the same would have been beyond the scope of his employment and not binding upon defendant.”
Defendant also raised the two years’ provision of the statute of limitations against the first five causes of action, the last of which was for a surgical operation performed on August 1, 1938, and this action was not begun until August 26, 1940.
The cause was tried by the court which made findings of fact, two of which read:
“5. That there is no county hospital or county physician or surgeon employed by said board, and clients were expected to select their own physician or surgeon.
“6. That it has been the policy of the county social welfare board since its organization, and prior thereto was the policy of the board of county commissioners of Harper county, to pay no bills to local physicians and surgeons, for major surgery performed upon poor and indigent persons,- residents of said county. That the basis of such policy seems to have been that since the surgeons of Harper county would perform major surgery rather than let the patient die, irrespective of whether compensation therefor was promised or paid, therefore, there was no necessity for the county assuming any burden for major surgery to Harper county doctors. Such policy seems to have been more or less generally known among the physicians and surgeons of the county, including the plaintiff. While such physicians and surgeons did not volunteer their services in such cases, they did render their services as a matter of professional ethics and with only occasional complaints.”
To these findings the trial court appended an extended memorandum opinion which limits of space forbid us to reproduce, but the substance of which was. that the county social welfare board was merely the local administrative agency of the state board of social welfare, and that it had no statutory power to contract or to sue or to be sued. In its conclusions of law the trial court held that defendant, being merely an agency of the state, could not waive a question of jurisdiction, and that its demurrer to plaintiff’s evidence should be sustained.
Judgment sustaining defendant’s demurrer and dismissing the action followed, and the cause is brought here for review.
At the outset we note that the.record contains no motion for a new trial, nor ruling thereon, nor is there any exception to the findings of fact nor any motion for judgment in favor of plaintiff on the findings of fact, nor is there any specification of errors upon which this court might center its attention to determine whether some material error of law may inhere in the judgment.
However, agreeably to the wishes of the court that these obstacles to a review be laid to one side, to the end that the broader aspectS’■of the appeal may be considered so far as practicable, the brief for .appellant first suggests that the action was “brought in the nature •of a declaratory judgment joined with the claims for services.” Further along in his brief appellant says “this suit may be continued in the. appellate court as one in mandamus to compel the •county welfare board to carry out . . . findings' of the lower •court.” Still later in his brief appellant says: “The case here is in the nature of a contractual case. There was an actual contract between the doctor and the board, by its executive and administrative •official, Mr. Sc.ott, to perform the operations, which was an implied ■contract on the part of the board to pay for the services.” (Italics ■ours.)
The instances must be rare where such a confusion of theories has been presented for the recovery of money alleged to be due on quantum meruit. In Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619, it was said:
“The plaintiff must frame his petition upon a distinct and definite theory, .and upon .that theory the facts alleged must state a good cause of action. If the petition is not drawn upon a single and definite theory, or there is such a ■confusion of theories alleged that the court cannot determine' from the general-.■scope of the petition upon which of several theories a recovery is sought, it is insufficient.” (Syl. f 1.)
This rule has often been applied. (McDowell v. Geist, 134 Kan. 789, 8 P. 2d 372; Davis v. Union State Bank, 137 Kan. 264, 20 P. 2d 508; Long v. Prairie Oil & Gas Co., 141 Kan. 47, 40 P. 2d 446; Lofland v. Croman, 152 Kan. 312, 317, 103 P. 2d 772.) It is true, •of course, that if a pleader plainly states a cause of action on any tenable theory, his cause will not fail because he may have misconceived the nature of his action or the relief to which he may be entitled. (Wellington v. Insurance Co., 112 Kan. 687, 212 Pac. 892; Parkhurst v. Investors Syndicate, 138 Kan. 7, 10, 11, 23 P. 2d 589; United Brethren, etc., v. Mount Carmel Community Cemetery Ass’n, 152 Kan. 243, 246, 103 P. 2d 877.) Here, however, a patient, study of the record and appellant’s brief reveals no tenable theory on which he could recover. While appellant alleged that he had contracted with the county director to perform the eleven operations and that he did so at the latter’s request the evidence did not sustain that allegation; quite the contrary. Moreover, the county director had no authority to make such a contract nor to authorize such expenditure. (G. S. 1941 Supp. 39-712; 59 C. J. 172, 173.) Neither does our new statute, Laws of 1937, chapter 327, as amended, G. S. 1941 Supp. 39-701 et seq., creating a state board of social welfare, providing for its articulation with the federal social security authority, and for the creation of county boards of social welfare over which it has supervisory authority, authorize the county social welfare board on its own independent responsibility to obligate itself to pay such an account as this one for which appellant seeks a recovery. Nor does the statute contemplate that the county social welfare board shall be harassed with litigation. It is not even an independent governmental agency, but is subordinate to the state board. (G. S. 1941 Supp. 39-708 b, d, s.) The powers and duties of the county social welfare agency are to be exercised and discharged according to rules and regulations prescribed by the state board. (G. S. 1941 Supp. 39-711.) The fact that the statute expressly declares that the state board may sue and be sued (G. S. 1941 Supp. 39-708 k) and is silent on the same theme in respect to the county board, justifies an inference that such want of capacity for litigation was intended. Expressio unius est alterius exclusio.
In one controlling respect the instant case is like our recent cases of Melencamp v. Stanton County Comm’rs, 152 Kan. 571, 106 Pac. 1059, and Lewis v. Scott County Comm’rs, 152 Kan 579, 106 P. 2d 1061, in which it was held that the board of county commissioners was not liable to a physician for his professional services to an indigent person “unless some duly authorized official of the county .approved and directed the performance of the service for which recovery is sought.” (p. 581.)
Appellant complains because the trial court ruled that jurisdiction is a matter which cannot be waived by an agency of the state. He contends that this point was not fairly presented by the pleadings, and that jurisdiction is a matter which can be waived. It is ordinarily true that jurisdiction of the person may be waived, so far as private litigants are corícerned. (Meixell v. Kirkpatrick, 29 Kan. 679, 683; King v. Ingels, 121 Kan. 790, 250 Pac. 306; Suter Bros, v. Hebert, 133 Kan. 262, 299 Pac. 627.) But that rule does not •apply to governmental agencies, especially when they have no legal capacity to conduct or defend litigation—which is precisely the status of the county social welfare board. In the case of In re Richards, 106 Kan. 105, 186 Pac. 1025, a question of jurisdiction arose in an appeal from the probate court to the.district court. The latter court dismissed the appeal. On review by this court, we said:
“If the question were one which only concerned jurisdiction of the person, an informality might be waived; but the want of a statutory prerequisite to the conferring of jurisdiction of a cause cannot be waived. In Tucker v. Tucker, 97 Kan. 61, 154 Pac. 269, it was said;
“ ‘This jurisdiction is vested by statute only, and no estoppel, laches or informality of a party can confer it. Neither, does failure to raise the question relieve us of the duty to decline, even of our own motion, the exercise of jurisdiction which we do not possess.’ (Citing cases.) (pp. 62, 106.)”
See, also, Construction Co. v. Board of Administration, 105 Kan. 291, 182 Pac. 286; Purity Oats Co. v. State, 125 Kan. 558, 264 Pac. 740; 14 Am. Jur. 380-381.
It is finally urged that the social welfare statute makes it the duty of the county board to make rules and regulations regarding aid, assistance or service to persons in need within the county. This contention is too broadly stated, since the statute repeatedly vests the primary control of all such matters in the state board, and it promulgates the general rules under which the county board operates ; and it is not shown that either board has made any rule which authorized any official functionary to employ the appellant to perform the services nor to bind the county board to pay for them.
The judgment is affirmed.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for personal injuries alleged to have been sustained when plaintiff, who was a passenger on a bus being operated by defendant, was thrown from her seat on account of the bus coming to a sudden stop. Judgment was for. the plaintiff. Defendant appeals.
The petition, after the formal allegations, alleged that plaintiff was a passenger on a bus of defendant traveling from Garden City to Topeka via Wichita; that shortly before daylight on July 17, 1939, the driver of the bus, with sudden and unexpected violence, brought it to a violent and sudden stop; that plaintiff was thrown from her seat in a cramped and twisted position and injured. The petition then set out various specific particulars in which the defendant was negligent and that the plaintiff could not state the exact particulars in which the bus was defective for the reason that she did not know them, but that she did know that it was an old bus used only for relief purposes and that by reason of its age and general worn-out condition it jerked and stopped with unusual violence when the brakes were applied.
The answer of the bus company was a general denial and a specific denial that on the morning in question the bus was brought to a sudden stop between Dodge City and Wichita or that plaintiff was thrown forward and injured. The answer also specifically denied all the allegations of the petition as to the negligence of the defendant or the defective condition of the bus.
The insurance company which carried the public liability insurance on the bus made substantially the same answer.
The reply was a general denial of all new matter.
The plaintiff testified that she boarded the bus at Garden City July 16 at eleven o’clock in the evening with her children. “I observed the bus when I started to get on it. There were not plenty of seats. There were two vacant seats, one on the back seat next to the long seat on the back, and the other directly behind the driver. My two boys took the farthest seat back and the baby and I sat in the front seat directly behind the driver. The driver was in uniform and I had conversation with him. He looked very much like the middle man back there in the court room, but I don’t know for sure, I said to him: ‘This is certainly a dilapidated bus. You must have gotten it out of the Ark.’ He said: ‘Lady, I am just as sorry as you are that we have to travel on this bus tonight.’ ” She testified further: “I was sitting in as relaxed a position as I could with Beverly asleep with her head in my lap, and I was about half asleep, when suddenly the bus stopped with an awful jerk; it'just rattled and sounded like the bus was falling apart and it frightened me and threw me forward until I lunged, and Beverly fell clear off the seat. I held my right foot on something that was built up between the other seat and the long back seat, and I twisted myself in a position trying to catch her, and it threw me this way and in so doing I felt something pop down in this region inside of me, and my back began hurting me terribly.” She testified further: “I saw him go around the bus and climb up on the bus right back of where we were on a ladder and then he came back down again, came in, and started the bus, and we went on our trip.” She also testified: “When I got on at Garden City, at the Hotel Warren, all the bus seats were taken except two. I boarded the bus on the night of July 16, 1939. All I know about the bus stopping is that it stopped violently. It was in the country, before daylight, and completely dark.”
Her twelve-year-old son testified to the same general effect.
It was stipulated that the bus was due out of Garden City at 10:52 p. m. and due in Wichita at 5:50 a. m. on July 17, and that it was not a new bus and was kept at Lamar to take the place of-any bus that went out between certain points.
The demurrer of defendant to the evidence of plaintiff was overruled.
At this point the defendants moved the court to require the plaintiff to elect whether she was proceeding under the doctrine of res ipsa loquitur or under the theory that she had established specific acts of negligence against defendant.
The trial court reserved its ruling on this motion until after the introduction of the evidence of defendant-.
On account of the argument made by defendant on this appeal we have very little concern with the evidence of defendant. There was evidence, however, as to repair work that had been done on this-particular bus. The bus driver testified that he knew nothing about a sudden stop that night and if there had been such a stop as that about which the plaintiff testified he would have remembered it.
At the close of defendant’s evidence the motion of defendant to require plaintiff to elect was sustained. She elected to stand upon the doctrine of res ipsa loquitur. Motion of defendants for an instructed verdict was overruled.
The jury returned a verdict for plaintiff. Motion for a new trial was overruled. Hence this appeal.
Because of plaintiff’s argument that the scope of the appeal is limited, the steps taken subsequent to the return of the verdict will be noted in some detail. This matter will be disposed of before considering the merits.
The verdict was returned on May 14, 1941. Within due time the motion for a new trial was filed. On September 10, 1941, the trial ■court overruled the motion for a new trial. The journal entry of judgment was filed September 10,1941. On September 23, 1941, defendants served notice of appeal fronrthe judgment rendered on May 13,1941. There was no appeal from the order overruling the motion ior a new trial.
The plaintiff argues that this court is without jurisdiction because the notice of appeal was not filed within two months from the date ■of the judgment from which the appeal was taken.
In this connection plaintiff cites G. S. 1935, 60-3117. That section :reads as follows:
“When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special or the court order the case to '.be reserved for future argument or consideration.”
There were no special questions and no order was made reserving .any question for future consideration. The clerk did notnhter judgment on the day the verdict was returned, but plaintiff argues that the statute made it mandatory for him to enter the judgment on that ■date and his failure to do so did not affect the rights of the parties.
The time within which an appeal may be taken commences to run from the date of the judgment. (See G. S. 1941 Supp. 60-3309.) It •does not follow that because the statute required the clerk to enter judgment when the verdict was returned that the date of the verdict was the date of the judgment. As a matter of fact, no judgment was actually rendered that day. The judgment is the final determination ■of the rights of the parties in an action. (G. S. 1935, 60-3101.) The ■clerk could not enter judgment until the court had rendered it. The parties in this action did not regard the judgment as having been rendered on May 13. We know this because the journal entry recites that after the motion for a new trial had been overruled the plaintiff moved for a judgment in her favor on the verdict and that ■this motion was sustained on September 10, 1941. In view of this the plaintiff cannot be heard to say now that the judgment was rendered on May 13, 1941, just because the statute made it the clerk’s duty to enter judgment on that day. Our attention is called •to the fact that the notice of appeal specified that the appeal was from the judgment rendered on May 13, 1941. The judgment was ■not rendered on that date, however. It was not actually rendered until September 10, 1941, when the plaintiff asked for it. There was no doubt in the mind of any one as to the judgment from which the .appeal was taken. It follows that the appeal was taken in time.
There remains the question of the effect of the appeal being taken from the judgment and not from the order overruling the motion for •a new trial. The appeal from the judgment gave us jurisdiction to review the action of the trial court in overruling the demurrer of the defendant to the evidence of plaintiff. This action of the trial court is one of the grounds relied upon by defendant for reversing the judgment. (See G. S. 1941 Supp. 60-3314a; also, Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720.)
The defendant also argues that the court erred in giving the instruction on the doctrine of res ipsa loquitur. Plaintiff argues that error in the giving of an instruction was a trial error and cannot be reviewed unless there was a motion for a new trial. Without conceding the soundness of this argument the defendant has filed a motion in this court to amend its notice of appeal by reciting the true date of the judgment and specifying therein the order overruling the demurrer to plaintiff’s evidence and the order overruling their motion for a new trial.
Plaintiff contends that this cannot be done, and cites Salt City B. & L. & S. Association v. Peterson, 145 Kan. 765, 67 P. 2d 564. In that case there had been no effective appeal at all and this court held that under such circumstances a notice of appeal could not be amended so as to permit an appeal to be filed out of time when the appeal that had been taken was a nullity.
Here we have seen there was a good appeal taken. Under such circumstances we have permitted the notice, of appeal to be amended when the only effect of the amendment is to broaden the scope of the review. (See Boss v. Brown, 132 Kan. 86, 294 Pac. 878; Sheridan v. Phillips Pipe Line Co., 134 Kan. 260, 5 P. 2d 817; Vincent v. Werner, 140 Kan. 599, 38 P. 2d 687.)
We have concluded that defendant should be permitted to file the amended notice of appeal under authority of G. S. 1935, 60-3310. ■ Having reached that conclusion we shall proceed to consider the merits of the appeal.
Defendant first argues that the trial court erred in overruling its demurrer to the evidence of plaintiff. The evidence upon which plaintiff relies has already been set out here. Briefly it was that the bus stopped so suddenly that plaintiff was thrown out of her seat and injured. Defendant argues that the above evidence did not prove a set of circumstances so related to each other that the only reasonable conclusion to be drawn therefrom was that the defendant was guilty of negligence.
The argument is not good. The defendant owed plaintiff the duty to use the highest degree of care for her safety. She proved that she was thrown from her seat and injured by a sudden stop. There was but little more she could prove. She had a right to rely upon the defendant not operating its bus in a violent manner. She would not expect such a sudden stop.
In Ewing v. Street Railroad Co., 91 Kan. 388, 137 Pac. 940, plaintiff was thrown to the ground by a sudden jerk of a street car as she was alighting. This court said:
“An unusually sudden or violent jerk or lurch a passenger has no reason to expect, and proof of an injury received by a passenger from the sudden or violent starting of a car as she was alighting is ground for an inference that the carrier was negligent.”
In Clarke v. Cardinal Stage Lines, 139 Kan. 280, 31 P. 2d 1, about all the plaintiff was able to prove was that she was riding in a bus, the front axle broke, the bus left the road and she was thrown out and injured. There was no evidence as to what caused the axle to break. When the defendant argued that its -demurrer to the evidence should have been sustained, this court said:
“It is next contended that the evidence was insufficient to take the case to the jury under the rule of res vpsa loquitur. Plaintiff’s evidence clearly and without dispute established the fact and the ‘character’ of the accident (Chaisson v. Williams, supra), and the ‘manner and circumstances’ of her injury (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 651, and citations, 249 Pac. 599), and certainly the breakdown of a passenger bus on a good road in the daytime with no external cause known or surmised made a prima facie case for the application of res ipsa doctrine.”
See, also, Southern Pac. Co. v. Hanlon, 9 F. 2d 294, also Laible v. Wells, 317 Mo. 141, 296 S. W. 428.
Defendant next argues that the court erred in giving instruction No. 9. That instruction was as follows:
“You are further instructed that the plaintiff in this action relies to some extent on what is known in law as the doctrine of res ipsa loquitur, which is a rule of evidence and means literally ‘the thing speaks for itself.’
“You are further instructed that where the doctrine of res ipsa loquitur, as above defined, is applicable, a presumption of negligence arises from the fact that there is an accident. In other words, the mere fact that an accident occurred, when one ordinarily would not occur, is some evidence that it was due to negligence' on the part of the defendant, and if the plaintiff is not in position to know what caused the accident, she has the right to rely upon the fact of tire accident as proof that it was due to some negligence on the part of the defendant.”
Defendant calls our attention to that portion of the above instruction where the court said:
“You are further instructed that where the doctrine of res ipsa loquitur, as above defined, is applicable, a presumption of negligence arises from the fact that there is an accident. . . . When such situation arises, the burden of going forward with the evidence is upon the defendant, and in order to show that it was not negligence, it may show . . .”
Defendant argues that it was error to instruct the jury that the proof that the accident occurred and that injury resulted created a presumption of negligence. The above is not a fair statement of the entire instruction. The instruction goes on to state that:
“In other words, the mere fact that an accident occurred, when one ordinarily would not occur, is some evidence that it was due to negligence on the part of the defendant.”
Uncontradicted “some evidence” of the negligence of defendant would be sufficient to take the case to the jury.
The instruction next stated:
“And if the plaintiff is not in position to know what caused the accident, she has the right to rely upon the fact of the accident as proof that it was due to some negligence on the part of the defendant.”
This statement, together with what preceded it, is merely another way of saying what this court said in Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599. There this court, in speaking of the doctrine of res ipsa loquitur, said:
. “Rather, in cases in which the phrase is applicable, proof of negligence is made, if at all, by circumstantial evidence; that is, the proof of the casualty and of the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the casualty happened because of the negligence of defendant.” (p. 651.)
The trial court told the jury in this instruction that when the situation described arose the burden of going ahead with the evidence was upon the defendant, and in order to show that it was not negligent it might show it exercised due care in the use and maintenance of its bus. This is just another way of telling the jury that proof of an accident where one ordinarily would not occur, and under circumstances where the plaintiff was not in a position to know what caused the accident, was sufficient to require the submission of the case to the jury; but that the defendant could show what caused the driver of the bus to bring it to a sudden stop or any other evidence which would tend to prove that the bus company was not in fact negligent. Furthermore, the instructions must all be considered as a whole. The jury was instructed in instruction No. 7 that negligence to be actionable must be the proximate cause of the injury,, and in instruction No. 12 that a carrier was only responsible for injuries to its passengers which were caused by its negligence.
The views expressed herein are approved in Woods v. Kansas City, K. V. & W. Rld Co., 134 Kan. 755, 8 P. 2d 404; also, S. K. Rly. Co., v. Walsh, 45 Kan. 653, 26 Pac. 45, O’Keefe v. Street Railway Co., 93 Kan. 262, 144 Pac. 214, Railway Co. v. Brandon, 77 Kan. 612, 95 Pac. 573. We hold that there was no error in the instructions.
The judgment of the trial court is affirmed.
Hoch, J., not participating. | [
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Per Curiam:
The judgment of the district court is reversed on the ground that it had no jurisdiction.
The mandate of this court will issue forthwith. A formal opinion will follow when it can be prepared. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for money. Judgment was for the plaintiff. Defendant appeals. 1
The petition alleged the nature of the parties and that the plaintiff was located in Montgomery county and many years ago had constructed and at the time the action was begun maintained a levee on the north, east and south sides of the district for the purpose of preventing the floodwaters of the Verdigris river from inundating the territory within the district; that about 1921 state highway 169 ■crossed the district from the north to south; that it was then a ■county road, maintained under the jurisdiction of the board of county commissioners of Montgomery county, and that prior to that time floodwaters from the city of Coffeyville would flood this road, making it difficult to maintain; that the board of county commissioners on December 29,1921, entered into a contract with the plaintiff. whereby the plaintiff agreed to permit the county commissioners to cut its levee and install therein a drain and floodgate which would take care of these floodwaters covering this road; that this contract contained the following clause:
“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.”
The petition further stated that the board of county commissioners constructed this floodgate and also constructed a drain from the road in question whereby the water which formerly inundated the road flowed out through this drain; that on April 1, 1929, pursuant to G. S. 1935, 68-418, the defendant state highway commission succeeded to the rights of the board of county commissioners, the county road in question became a part of the state highway system and is now known as state highway 169; that thereafter this floodgate became out of repair, and the plaintiff in August of 1937 made demand upon the defendant to repair it; that the defendant refused to do this, and in December, 1937, the plaintiff caused the repairs to be made and incurred an expense of $1,160.44. The prayer was for that amount.
The answer of the state highway commission was a general denial. The answer then admitted that the plaintiff was an organized district; that the state highway commission was an administrative branch of the government; that it controlled the state system of highways and that the drainage district maintained in 1921 and now maintains the floodgates and levees in question. The answer then alleged that the levees and floodgates were installed to protect the lands of the plaintiff drainage district in the city of Coffeyville. The answer also admitted the making of the contract, a portion of which is quoted in the petition. The answer then alleged that the contract was made without any authority of law; was ultra vires and beyond the power of and authority of the board of county commissioners of Montgomery county; that the drainage of the then county road was a secondary consideration. The answer then contained allegations, the general purport of which was that the floodgate and drains in question were in fact installed and maintained for the benefit of the city and the drainage district rather than the county and later the highway commission.
The reply was a general denial, and contained a further allegation that the floodgate had always served as a drain to protect the road in question and that this road after the passage of G. S. 1935, 68-418, became a part of the state highway system and it became the duty of the highway commission to maintain it.
The case was submitted to the trial court without a jury. The court’s findings, except two which will be noted hereafter, were agreed upon by the parties. The facts are that the drainage district constructed levees on its north, east and south sides shortly after its organization in March, 1907. Part of the city of Coffeyville lay within this district. Drains were constructed and fitted with floodgates at various points to let floodwaters out of the district.
In 1921, and for a long time before that, there was a county road running north from East Eighth street in Coffeyville to Cherryvale, Kan. The south 4,167 feet of that road, which is called Sunflower street, was within the drainage district. The west half of the south 2,425 feet from First to Eighth streets was within the city limits of Coffeyville. The entire road, including that part within the city, had been designated as a part of the county-road system, pursuant to the Laws of 1921, chapter 219, section 1, now appearing as G. S. 1935, 68-506.
In September, 1927, the city extended its limits to include all the drainage system and all of the highway in question except the east half of Sunflower street between First and Sterling streets, a distance of 1,577 feet to the levee on the north.
On December 20, 1921, the drainage district and the county entered into the contract referred to in the petition. Prior to December 20, 1921, the city had constructed a drain from the corner of Fifth and Union streets north and east to Second street, thence east to and ending at the west boundary of what is now Sunflower street. From the corner of Second and Sunflower streets the drain extended south along the west side of Sunflower street to plaintiff’s south levee and out through the floodgate. After the contract in question was executed the county commissioners constructed a ditch connecting this drain to a place on the east where the levee was cut and a drain installed therein. On April 1, 1929, pursuant to G. S.. 1935, 68-418, the defendant succeeded to the rights and liabilities of the county commissioners with reference to the state highway commission. Sunflower street is paved with a bituminous retread surface and it was impracticable for the city to maintain the equipment necessary for that type of surface. Since July 1, 1936, defendant has maintained the bituminous surface on that part of the old county road which is within the city, being the west half of the road from First street north 1,5^7 feet, and also that part of the old county road not within the city, but which is within the drainage district, which is 4,167 feet in length. In 1937 the drain and floodgate in question became out of repair, and plaintiff made the demand upon the defendant that was pleaded in the petition, but the defendant failed to repair it. In December, 1937, the plaintiff expended $1,160.44 repairing the floodgate. This was a reasonable charge for the work done. The itemized statement of this expense was handed the defendant and it refused to pay it..
The following two findings' were not agreed upon. They are as follows:
“16. That at the time the contract sued upon was entered into and for a long time prior thereto, the south part of said county road within the district, in times of heavy rains, would be covered with surface water which came from the west of the road to the extent that it became at times impassable. In addition, water would stand in the ditch at the side of the road. Most of this water, but not all, came from the west through a ditch constructed by the city which ended at the west side of Second and Sunflower streets (the county road). Water from this ditch would flow along the west side of the county road, cover the road, and stand in the ditch on the west side of the road. At that time, whatever drainage the county road had was to the south along the said road to a floodgate in the south levee.
“The county desired to improve that part of the county road within the drainage district, but was unwilling to do so until the road was drained. The county decided the best way to drain this road was to construct a drain from the road, running east through the east levee of the drainage district, with a floodgate installed. The board of county commissioners negotiated with the drainage district, and as a result of those negotiations the contract in controversy was entered into whereby the county obtained consent to cut plain-, tiff’s levee and install therein the floodgate in question. The construction of this drain and floodgate drained this county road.
“17. The facts involved in this action have been the basis of a suit in Montgomery county, from the decision of which two appeals have been taken to the supreme court, and are reported in the eases of the Virdigris River Drainage District No. 1, versus City of Coffeyville, 149 Kan., p. 191, and 150 Kan., p. 765.”
Upon these findings the trial court concluded that the contract in question was a valid one for the draining of the county road referred to; that this contract was taken over and assumed by the defendant pursuant to G. S. 1935, 68-418, and that plaintiff should recover $1,375.10, being the amount expended with interest, together with costs.
The defendant filed a motion for additional findings and for a new trial and to set aside the findings of fact and conclusions of law. These motions were all overruled and judgment was entered in accordance with the above conclusions. The defendant has appealed.
The facts out of which this action arose have been the subject of two appeals to this court. On account of an argument that is made here by the plaintiff those two cases will be noted here.
The first one is Verdigris River Drainage Dist. v. City of Coffeyville, 149 Kan. 191, 86 P. 2d 592. The plaintiff argues that the effect of the holding of this court in that case was to make the highway commission liable. The decision can hardly be given that effect. That action was brought in the district court of Montgomery county by the drainage district against the city of Coffey-ville, Montgomery county, and the state highway commission. The highway commission appeared specially and filed a motion to quash the service of summons upon it in Shawnee county on the ground that the proper venue of such aa action against it was Shawnee county. The trial court overruled this motion and the commission appealed. The drainage district contended that since it had obtained service on the county and the city, who were liable on its claim, its service on the commission in Shawnee county gave the district court of Montgomery county jurisdiction over the commission on the theory that the three defendants were jointly liable. In disposing of this argument this court held, among other things, that on the facts stated in the opinion the highway commission and not the county was liable. This court, however, took pains to say that from what was said in the opinion it must not be inferred that we had determined the question of the city’s liability nor the effect of such liability, if any, upon the liability of the commission. We said:
“No ruling on those issues is now before us for review and we express no views on the question of the ultimate liability of either of those defendants.” (p. 200.)
The drainage district then proceeded with the trial of the action on its merits against the city and the county. The trial court held both the city and the county liable. An appeal was taken to this court. (See Verdigris River Drainage Dist. v. City of Coffeyville, 150 Kan. 765, 97 P. 2d 105.) The case was submitted on an agreed statement of facts and the court awarded judgment against both. The county appealed. This court held that according to the agreed statement of facts the question of the liability of the county had been settled by our decision in the former case—that the state highway commission and not the county was liable on account of G. S. 1935, 68-418, which provided for the taking over of the liabilities of the county by the commission. The effect of the decision was that if the county had been liable in the first instance then the enactment of the above statute relieved it of liability. The question of whether the contract between the county and the drainage district was a valid one was not passed on.
We also held that the city was not liable on the theory advanced by the plaintiff. After that action was disposed of the district commenced this action in the district court of Shawnee county against the highway commission. For the first time in this series of cases the question of the validity of the contract between the county and the drainage district has been raised. Of course, if this contract was invalid as to> the parties who entered into it, then the highway commission was not bound by it when it assumed the liabilities of the county. On the other hand, if the contract between the county and the district was valid, then the state highway commission became liable under the provisions of G. S. 1935, 68-418. (See McCandliss Construction Co. v. Neosho County Comm’rs, 132 Kan. 651, 296 Pac. 720.)
The commission on this appeal contends that the contract in question was entered into, as a matter fact, for the benefit of the city and that the street benefited is really a connecting link between two parts of the state highway system, and the commission does not have the authority to expend its funds for the maintenance of such a connecting link.
This argument is not good for the reason that the stipulation of facts as well as the two contested findings set out a situation where the east half of a considerable part of the highway in question is outside of the city and within the drainage district. The county was charged with the responsibility of maintaining this highway and later when the highway commission assumed the liability of the county such maintenance became their responsibility. The drainage of a highway is an important part of its maintenance. In fact, a highway cannot be maintained at all if sufficient drainage is not provided. The providing of this drainage was clearly the reason the contract, upon which this action was brought, was entered into by the county. At the time it was entered into there was a substantial amount of county road that benefited by the new drain. The fact that a portion of this road was later taken into the city did not relieve the county and later the highway commission from liability on the contract. This was a main-traveled highway and was partly within and partly without the city. The board of county commissioners had the authority to designate it as a part of the county road system. (See G. S. 1935, 68-506.) They had exercised this authority. Hence, when the highway took over the system of county roads in Montgomery county it took over this road as a part of that system.
The defendant next argues that the contract was invalid because it purported to bind the successors of the officers who entered into it. The language in the contract which defendant claims made it void is as follows :
“That it [the county] will forever, during the existence of said levee, maintain and keep in good condition said floodgate,” etc.
Defendant argues that by this provision the officials who signed the contract purported to bind their successors forever regardless of whether the situation might change so that the location of the road would 'be some place where these floodgates would be of no benefit whatever.
We do not have to answer that question because as the situation reaches us the floodgate is of benefit to a portion of the state highway. The general rule is laid down in 7 R. C. L., at page 945, section 21, and is as follows:
“But it is clear that if a board of county commissioner has express power to make a particular contract at any time during its term of office, a contract made by such board, in accordance with the law, a short time before the expiration of its term of office is not contrary to public policy, and, in the absence of fraud, is valid and binding upon an incoming board of commissioners, although it extends far into their term of office. The ground upon which this rule is based is that a board of county commissioners is a continuously existing corporation, and, consequently, while the personnel of its membership changes, the corporation continues unchanged. Its contracts being the contracts of the board and not of its members,' it follows that those contracts extending beyond the term of service of its then members are not invalid for that reason. It has been said that to hold contracts invalid because part or all of a board cease to exercise public functions would be to put these corporations at an enormous disadvantage in making the contracts which are essential to the safe, prudent, and economical management of the affairs of a county. The members of a board of county commissioners cannot, however, contract in reference to matters which are personal to their successors.”
See, also, Ruff v. Shawnee County Comm'rs, 127 Kan. 188, 272 Pac. 189; Alber v. Kansas City, 138 Kan. 184, 25 P. 2d 364.
Both drainage districts and counties are given wide authority by statute to enter into contracts with reference to the legitimate field of their operation. Some of the powers of drainage districts are set out in G. S. 1935, 24-407. This section reads, in part, as follows:
“Fourteenth: To contract with other drainage districts or with public corporations organized for similar purposes in any adjoining state for cooperation or joint, action in constructing levees along the banks or otherwise improving any natural watercourse to prevent its overflow where the same overflow is likely to cause injury or damage to lands situated within the territorial limits of all the districts or corporations so cooperating; also to so contract and cooperate with private corporations and individuals owning lands situated outside of the district or state which are subject to injury by such overflow in common with lands situated within the district; also to contract for and receive aid and contributions from the United States, and from all public corporations the property within which will be benefited and with all private corporations and individuals whose property will be benefited by such improvement, whether such property be situated within the district or within some other district or state.
“Sixteenth: To do all other acts that may be necessary to carry out and execute the general powers hereinbefore or hereinafter granted, although' not hereinbefore specially enumerated. ...”
Also, note G. S. 1935, 24-408, which provides, in part, as follows :
“Third, to contract or otherwise cooperate with any city or other municipal corporation in which the same may be situated, or with any corporation or person, for the construction and maintenance of sewers, drains, or ditches for. the drainage of any drainage district or portion thereof, or to prevent the same from being overflowed by surface water from adjoining lands, and to levy taxes and issue bonds in accordance with and subject- to the provisions of chapter 215 (*), of the Session Laws of 1905, and acts amendatory thereof, to pay for the cost of such improvements.”
Counties are given broad powers with reference to constructing drains and ditches necessary in road construction. (See G. S. 1935, 68-115.) These provisions must be construed to confer on county commissioners the authority to enter into contracts such as we have here to extend beyond the term- of office of the particular officials who made the contract. Were it not so no comprehensive program of road building could ever be carried out.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This is an appeal from an order and judgment of the district court of Leavenworth county denying the petition of appellant for a writ of habeas corpus.
From the record presented it appears the defendant was charged, tried and convicted of burglary and larceny in Cowley county. The record recites that when the cause came on for trial the state was represented by the county attorney, the defendant appearing in person and by H. 0. Janicke, his attorney. The jury found the defendant guilty of burglary in the second degree and with larceny in connection with the burglary as charged in the first count of the information. The jury also found defendant guilty of burglary in the second degree as charged in the second count of the information, and also guilty of larceny committed in connection with the burglary. Defendant filed a motion for a new trial. The record recites that the court, “after hearing argument by both plaintiff and defendant, finds that the motion of the defendant should be and is hereby overruled.”
The record further recites:
“Thereupon the court finds the defendant should be sentenced to the state penitentiary at Lansing, Kansas, to serve a sentence of not less than five nor more than ten years on the first count of burglary in the second degree and not to exceed five years on the count of larceny contained therein, and to serve a sentence of not less than five' years nor more than ten years on the second count of burglary in the second degree and not to exceed five years on the count of larceny contained therein—said two counts to run concurrently.
“Thereupon, the court finds from the evidence and records in this case that the defendant has been previously convicted of a felony and served a sentence in the state penitentiary at Lansing, Kansas.”
No appeal was taken from the judgment.
Upon the record as above outlined the petition of appellant for a writ of habeas corpus was denied.
Upon this appeal appellant contends he was entitled to be present at the hearing upon the application for the writ. The point is not well taken. Presence of the prisoner at the hearing on the preliminary application for a writ of habeas corpus is not a right guaranteed the petitioner either by the constitution or laws of this state. Where the petitioner upon his application for a writ of habeas corpus has made a prima facie showing as to the illegality of his restraint, the writ will issue, and the petitioner will then be brought before the court as the statute (G. S. 1935, 60-2205) directs. See Engels v. Amrine, ante, p. 385, 125 P. 2d 379 (this day decided).
It is asserted the information is insufficient to charge the crimes of burglary and larceny. The defendant was charged with burglary and with larceny in connection with the burglary under G. S. 1935, 21-524. The information is clearly sufficient under the statute. Moreover, the sufficiency of the information may not be considered in habeas corpus. (Engels v. Amrine, supra.)
Petitioner complains that he received two judgments for the same offense. As set forth above, the trial court found the defendant had previously been convicted and that he had served a sentence in the state penitentiary. There was no error in the judgment. (Howell v. Amrine, ante, p. 185, 123 P. 2d 954.)
The petitioner claims that he did not commit the crimes for which he was convicted, and asks that witnesses be subpoenaed so that he may have an opportunity to prove his innocence. Where a person is held in custody under process issued upon any final judgment of a court of competent jurisdiction, the inquiry in habeas corpus is limited to the question: Was the judgment void, or has it been stayed, superseded or otherwise spent its force? No mere errors or irregularities in the proceedings will justify a discharge. (G. S. 1935, 60-2213; In re Rolfs, Petitioner, 30 Kan. 758, 1 Pac. 523; In re Terry, 71 Kan. 362, 80 Pac. 586.) In such case the guilt or innocence of the party in custody is not an issue to be determined. (Jones v. Amrine, 154 Kan. 629, 121 P. 2d 263.) The record discloses the petitioner had a fair trial before a court of competent jurisdiction. No appeal was taken from the judgment and this court has no authority to set it aside.
We have examined other errors 'assigned and find them without merit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This is an original proceeding in mandamus brought on the relation of the attorney general to determine whether the teachers employed by the defendant board of education of Topeka prior to May 15, 1935, had acquired vested rights under the school retirement fund law enacted in 1911. The question is before us on a motion to quash the alternative writ.
Under the issues presented we are called upon to construe the original teachers’- retirement fund law of 1911 (R. S. 1923, 72-1726 to 72-1734, both inclusive) and the law of 1935 covering the same subject (G. S. 1935, 72-1726 to 72-1734, both inclusive). The texts of the two enactments are substantially alike, but differ in certain particulars. The changes made by the 1935 law, here important, are:
1. Under the 1911 act, a maximum of one and one-half percent can be deducted from the salary of each teacher. Under the 1935 act, a maximum of six percent can be so deducted. (R. S. 1923, 72-1726; G. S. 1935, 72-1726.)
2. Under the 1911 act, when a teacher entitled to a pension is retired, the difference between $250 and the amount such teacher has paid in to the retirement fund is deducted from the first year’s pension. Under the 1935 law, the difference between $500 and the amount such teacher has paid in to the retirement fund is deducted from the first year’s pension. (R. S. 1923, 72-1728; G. S. 1935, 72-1728.)
3. The 1911 law required that a teacher to be eligible for retirement must have had fifteen years of teaching experience in public schools of cities of the first class. The 1935 law requires twenty years of such teaching experience. (R. S. 1923, 72-1728; G. S. 1935, 72-1728.)
4. The 1911 law required that the board of education contribute to said fund out of its general fund as much as was necessary to meet the payments provided for in the act. The 1935 law makes the same requirement as to payments, but in addition thereto permits the levy of a special tax of one mill over and above all statutory limitations for that purpose. (R. S. 1923, 72-1726; G. S. 1935, 72-1726.)
The petition alleged:
“5. The defendant, at the time of the passage of the teachers’ retirement fund law in 1911, and at all times since said date, employed, and at the present time employs, a* large number of teachers who teach in the Topeka public schools and Topeka high school. After the passage of the act in 1911, and prior to the enactment of the act in 1935, said defendant by proper action created a teachers’ retirement fund and at all times thereafter has maintained such a fund.
“6. At the time of the creation of the teachers’ retirement fund under the 1911 act, as hereinbefore alleged, a great majority of the teachers employed by defendant failed to file written requests for exemption from the operation of said law, as provided by R. S. 1923, 72-1733, and automatically became subject to the liabilities of and eligible for the benefits under said act. The great majority of the teachers employed by defendant after said time, and prior to the taking effect of the 1935 teachers’ retirement fund law, failed to file written requests for exemption from the operation of said Law of 1911, in accordance with R. S. 1923, 72-1733, and have automatically become subject to the liabilities of and eligible for the benefits under said law.
“7. At the time of the taking effect of said act of 1935, the great majority of the teachers employed by defendant who had become subject to the teachers’ retirement fund act of 1911 failed to file written requests with the board of education asking to be exempted from said Law of 1935, as provided by G. S. 1935, 72-1733, and deductions from the salaries of such teachers have been made by the defendant since 1935, in accordance with the provisions of said 1935 act, up to the time of their retirement or until the present time, if said teachers have not retired.
“8. R. S. 1923, 72-1726, provides that not less than one percent nor more than one and one-half percent of every installment of salary paid to a teacher subject to said law should be deducted from every installment of salary paid to every teacher subject to said law. G. S. 1935, 72-1726, provides that not less than one percent nor more than six percent of every installment of salary paid to a teacher subject to said law should be deducted from every installment of salary so paid. Since the taking effect of the 1935 teachers’ retirement fund law, and on or about the 6th day of March, 1942, said board of education duly and regularly adopted a resolution whereby it was provided that on and after September 1, 1942, there shall be deducted from every installment of salary paid by said board of education to any teacher employed by it, who has not filed a written request for exemption from the operation of said fund, an amount equal to two percent of such salary installment. A full, true and correct copy of said resolution is attached hereto, marked exhibit ‘A,’ and made a part hereof. The scope of said resolution is such that it includes teachers employed by the defendant prior to 1935 and who were subject to the liabilities of and eligible for the benefits from the teachers’ retirement fund created under the law of 1911. The rights of such teachers became fixed and a contract was entered into between such teachers and the defendant when such teachers failed to request exemption from and became subject to the liabilities of and eligible for benefits from said 1911 law, which said contract cannot be and has not been changed or altered in any respect by the repeal of said 1911 law or the enactment, of teachers’ retirement fund law of 1935, and said defendant has no right to deduct an amount in excess of one and one-half percent from each salary installment paid to such teachers.
“10. The rights of teachers employed by defendant prior to 1935, who had become subject to said act of 1911, became fixed and a contract was entered into between such teachers and the defendant when such teachers failed to request exemption from and became subject to the liabilities of and eligible to the benefits from said 1911 act, which said contract cannot be and has not been changed or altered in any respect by the repeal of said law of 1911 or the enactment of the teachers’ retirement fund law of 1935.”
Appropriate relief was asked.
Petitioner contends that when the teachers employed by the defendant board of education prior to 1935 failed to request exemption from the operation of the law as provided by R. S'. 1923, 72-1733, such teachers became subject to the liabilities and eligible for the benefits under law of 1911, and that they acquired a vested interest in the retirement fund which could not be impaired by a subsequent act of the legislature or by the defendant board.
It is generally held that a pension granted by the public authorities is not a contractual obligation, but a gratuitous allowance in the continuance of which the pensioner has no vested right. By the great weight of authority the fact that a pensioner has’ made compulsory contribution to the fund does not give him a vested right in the pension. (See Annotations 54 A. L. R. 943; 98 A. L. R. 505; 112 A. L. R. 1009; 137 A. L. R. 249.)
In the case at bar we find it unnecessary to determine whether the teachers had acquired a vested interest in the retirement fund. The original retirement law, enacted in 1911, was repealed in 1935. G. S. 1935, 72-1733, provides that any teacher could, within one month after the enactment of the 1935 act, file a written request for exemption from the provisions of the law, and that such request, when duly filed, would constitute a waiver of any benefits from the retirement fund. Thus, failure to file such request would make the teachers eligible to participate in such benefits. In other words, under the statute, failure to file a request for exemption is the manifestation of assent on the part of the teacher to participate in the benefits under the law of 1935.
If we assume that there was a contractual relationship between the teachers and the defendant board as to the retirement pay based on the act of 1911, as contended by the plaintiff, then it would seem clear that there was an abandonment of the original contract and the substitution of a new contract between the parties based on the 1935 law.
As a contract is the result of agreement, so an agreement may put an end to a contract. Therefore, a contract may be discharged at any time before performance is due by a new agreement with the effect of altering the terms of the original agreement or of rescinding it altogether. (17 C. J. S., Contracts, § 394.) The agreement to rescind need not be express. Mutual assent to abandon a contract, like mutual assent to form one, may be inferred from circumstances. The promise of one party to forego his rights under the contract is sufficient consideration for the promise of the other party to forego his rights. (3 Williston on Contracts, § 1826.)
We have, then, a new agreement between the same parties, covering the same subject matter as the original agreement, but which contains terms inconsistent with the former contract so that the two cannot stand together. It follows that the new agreement based on the 1935 act was substituted for the original agreement and became the sole agreement between the parties. Any deductions made from the salary of any teacher after 1935 (the teacher having failed to file a written request for exemption from the new act) would be under the act of 1935, although the deduction may have been at the same rate as the deductions that were made under the original act. It follows that the contentions of the plaintiff cannot be sustained, and the application for the writ must be denied. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This was a divorce action. The appeal is from an order denying plaintiff the custody of her child by the marriage.
The pertinent facts shown by the record may be summarized as follows: Plaintiff was reared in Yates Center, Woodson county, and defendant at Toronto, in the same' county. The father of each of them worked for the Missouri Pacific Railroad Company. The parties were married September 3, 1930, when she was fifteen and he twenty years of age. They went to live with his parents. He was employed as a section hand by the railroad. Their only child, Madelene Irene Jones, was born May 6, 1932. They continued to live with his parents for two or three years—the time is not definitely shown. He was a drinking man, would get drunk, and at such times was quarrelsome and abusive. He quit his job, or was fired, and sought work in the oil fields, but was able to hold a place but a short time. They moved frequently, “to a dozen different places, did not stay any place very long.” ■ Left without funds, she would take her baby and go sometimes to the home of her parents, but more frequently to the home of his parents. “We lived practically all the time we were married with his parents, because I never had a home of my own.” (Excerpts from plaintiff’s testimony.) They separated finally in September, 1938, and she sued for a divorce. Pending the hearing plaintiff sought work to support herself. There is testimony of a tentative understanding the child would be left and. looked after for a week or two by plaintiff’s'mother'and then for a. similar time with defendant’s mother, but plaintiff’s mother was in. poor health and most of the time defendant’s mother kept and cared, for the child. The divorce was contested. The trial was had November 29, 1938. There was abundant evidence of gross neglect,, extreme cruelty, and frequent intoxication on the part of defendant. There was no evidence tending to show misconduct of plaintiff. She was asked and answered the following questions:
“Q. And do you have a home at this time to which you could take this-child? A. Well, I have my mother’s home, but my mother isn’t in very good health, and I couldn’t be there all the time, I know, and it is a hard proposition, for a person as old as—that is, not a young person, to be a mother to a child her age.
“Q. Would you like to have the care and custody of this child? A. Yes,, sir; I would.
“Q. And now just tell the court something about the relations or the treatment, if you know, that child is receiving from her grandmother at this time. A. Well, I know she is receiving good care. I know if she got sick she would have the best care in the world, but for the people that are around her, I think she should be taken care of morally as well as in every other way, and I don’t think that all this drinking and quarreling and fighting that' goes on there is-the best for any child, I don’t care who it is.”
At the close of the evidence the following occurred':
“By the Court: The evidence seems to show that this father is not a very good citizen, husband or- father, either one. The plaintiff, of course, has made-out a plain case for divorce. There seems to be nothing against the plaintiff as far as the evidence shows. She seems to be all right. The only thing about it is this child.
“Counsel for plaintiff: As soon as she can get squared around, she will make an application and a showing that she has a home.and a place where she can take this child.
“By the Court: I will continue this matter over until December 6, 1938, at 2 o’clock p.m.”
On December 6 the parties filed with the court a written stipulation by which they agreed “that the care, custody and control of the minor child of said litigants, Madalene Irene Jones, shall be given over to Mabel Jones of Toronto, Kan., grandmother of said child, pending further orders of the court with respect to said child’scare, custody and control.” The stipulation further provided that each of the parties might visit the child, who should be kept in school, and that the defendant, “in conjunction with his mother,”' would provide sufficient money to clothe and maintain the child. Defendant’s mother, Mrs. Mabel Jones, signed the stipulation accepting the duties imposed on her thereby. This stipulation was considered and approved by the court on December 6, 1938. Plaintiff -was granted a divorce, and custody of the child was given to-defendant’s mother, Mabel Jones, pending the further order of the-court.
Early in 1941—the exact date not shown—plaintiff filed in the-divorce action an application for an order modifying the previous-order respecting the custody of the child and asking that she be-granted the care; custody and control of the child. In this she alleged that at the time the divorce was granted she was not financially able to care for the child and for that reason consented the custody be given temporarily to defendant’s mother; that it was not-her desire to be separated from her daughter; that she is now able-to care for the child; that she is married again; that her present, husband is permanently employed, and that she will care for the child and provide for her, for whom she has great love and affection..
This application came on for hearing by the court April 29, 1941,. and was opposed by the child’s grandmother, Mrs. Mabel Jones.. The plaintiff testified that she is the former wife of Manford Jones; that most of her married life was spent at the home of his parents ;• that when her divorce was granted she signed a stipulation permitting her daughter to be left with Mabel-Jones, her grandmother,, with the understanding it was just to be a temporary order; “that, was what they told me.” At that time she was working and providing for herself and had no place established where she could take-care of her daughter. The child has been with her grandmother since they were divorced, and has been well taken care of and going to -school. Since appellant’s divorce she had been working and making her own way. She worked in a dentist’s office in the Commerce-Building in Kansas City and for W. C. Simons, a newspaper man at-Lawrence. “I have seen my child just as often as I could.”
On August 14, 1940, she was married to Louis Blohm, twenty-five years of age, who had lived practically all his life at Piqua (in. Woodson county), where he was a garage mechanic. He went to-Kansas City to school and they sent him to San Diego, Cal., where he is employed by the Consolidated Aircraft Corporation, working in an airplane factory. He helps to build and assemble planes. He has steady employment, and his salary is from $35 to $45 per week. They live at Ocean Beach, Cal., about six miles from San Diego, where he works. They have a four-room, modern home, which they rent. It is neatly decorated, in good repair, all modern throughout, and has a nice yard, and is four blocks from the public school. She had discussed with her present husband the fact that she desired to have her daughter with her and he was very much in favor of it. There are no children by the second marriage. She is not employed, does her own work, and could devote her time to taking care of her daughter, which she would do. “I waited to file this application until I felt I was in a position to properly care for my daughter. I would have filed it sooner had I been in a position to do so.”
Mrs. Mabel Jones testified that Madelene has been with her practically all her life; that she is in school and attends school regularly; that she is making good grades and her grades have been above the average; that she has been engaged in other activities—school operettas; that she has been kept well dressed, and has been cared for and doctored when that was necessary; that she has nervous trouble, which the doctor has diagnosed as St. Vitus’s dance; that “her limbs get so she can’t stand on them and then her hands jump, when she gets one of those nervous spells. She had a spell two weeks ago. She had not had one for better than two years. The little girl helps to wash and dry the dishes and little things like .that. She is singing and laughing and is happy and seems to be a normal child.” She testified she has love and affection for the child and the child’s father has love and affection for the child and the child for the father. “When the mother visited the child at our home she did not say anything to disturb the child whatever. I have done nothing to prejudice the child against her mother. I would be willing for the mother to have her daughter, if her daughter would be happy with her.” The husband of witness wants her to keep the child.
Mrs. Mabel Jones called several witnesses in opposition to plaintiff’s application. A Mrs. Lucas testified:
“I have known Madelene Jones as her Sunday school teacher. She is a regular attendant of the Methodist church. She is well behaved. I have been in the grandmother’s home and the little girl couldn’t have better treatment.”
Neither the little girl’s father nor her grandmother attended church.
A Mrs. Kerr testified that she had known Mabel Jones since before she was married.
“I am acquainted with her home in Toronto. The grandmother has taught the child to behave and she has the reputation of being a well-behaved child. I think Mabel Jones is a fit and proper person to have the control of the child.”
Flossie Bedigrew has lived in Toronto for seventeen years, is well acquainted with the little girl and the Joneses; has visited the Jones’ home real often.
“The little girl receives the very best of care. I think Mrs. Jones, the grandmother, is a fit and proper person to have the care of the child. The child seems happy and contented and living a perfectly normal life.”
The defendant, Manford Jones, testified that he is farming near Toronto; that he was married again in August, 1939, and has one child by that marriage.
“I have had the child out to my home just once during all the time she has been with her grandmother. . . . I go to town practically every night, after I get my chores done and see the girl. ... I think it' is to the best interests of the child to remain with her grandmother.”
He further testified that plaintiff, when the child was quite young, told her that a big, bad wolf would carry her off if she was bad, and that the little girl was obsessed with the fear that someone was going to come and get her.
After hearing the evidence the court took the matter “under advisement for such period of time as would permit the child to finish out her school term.” At some time—not clearly shown-—the parties consented the court might visit the child in the grandmother’s home. On June 10, 1941, the matter was taken up for decision, when the court found generally against the plaintiff, and further found:
“. . . that the health and physical welfare of said child is in a precarious condition, and that it would be unwise and imperil the health of said child to change the care, custody and control of said child at this time, and that the welfare of said child would be best subserved by continuing the care, custody and control of the child in the grandmother’s custody.”
The application of the plaintiff was denied. Remarks of the court made at the time of this decision are brought to us by the counter abstract. In this the court criticized plaintiff for not doing more while she was living with the defendant, even though he was not making a home for her, and stated:
“. . . but the foremost thing that has impressed the court is the fact that this little girl has apparently not any' normal feeling for her mother. She is afraid of her mother. She is deathly afraid of her mother, and I don’t think ■that is due to any action on the part of the paternal grandmother or father. It just seems to be the natural thing, I suppose, because these grandparents have gone ahead and raised this child and assumed all the responsibility in connection with it.”
He spoke of her nervous condition, but said: “It is something, 'however, Lam satisfied that with the proper home environment she will outgrow.” He spoke of the child being bright and of the good -treatment she has received with her grandmother.
Reading this record one should not be criticized for concluding -that on April 29, 1941, when the evidence was concluded, the court was of the opinion plaintiff’s application for an order giving her the •custody of the child should be granted; otherwise, why postpone announcing a decision to “permit the child to finish out her school term.” We are forced also to conclude that, at some time, the court Leard some facts, or supposed facts, not testified to by any witness. Courts, like jurors, should decide questions of fact upon the evidence produced in court. There is no evidence in the record tending to ■show that this little girl Madelene is afraid of’ her mother. Even the “big, bad wolf” story, as related by defendant, contains no intimation the telling of it caused the little girl to be afraid of'her mother. Normally, a child frightened by a story of that kind would look to the mother for protection^ yet the court, in the oral statement, placed the child’s supposed “deathly féar” of her mother as the controlling thing. Clearly, this was error.
Appellant argues the finding of the court that the health of the '“child is in a precarious condition” is not supported by the evidence. The point is well taken. The only evidence on this point was by the ■opponent of the application, that the little girl had spells of nervousness which a doctor at some time had diagnosed as St. Vitus’s dance; but she had not had one of the spells for “more than two years”
_ until about two weeks before the hearing, and there is no intimation In the evidence that was sufficiently severe to need medical treatment, or that a doctor was- called. The testimony of Mabel Jones respecting her work in school, that “she is singing and laughing and - Is happy and seems to be a normal child,” and of her witness, Flos■sie Bedigrew, “The child seems happy and contented and living a perfectly normal life,” are in conflict with the court’s finding on this point. The testimony of no witness supports it.
We note the fact that while appellant’s former husband, Manford Jones, Jr., appears in the caption here as appellee, no one contends the custody of the child should be given to him. The record shows his mother, Mrs. Mabel Jones, the child’s grandmother, appeared in court with her counsel to oppose appellant’s application to change the previous temporary order for the custody of the child, and she is the real appellee here.
At the time the divorce was granted the evidence in that action clearly disclosed that the defendant was not a suitable person to have the custody of the child; that plaintiff in that action—appellant here—was in fact found to be a suitable person to have the custody of the child, and there was no evidence to the contrary upon the hearing of this application respecting either of the parties.
It is firmly established by repeated decisions of this court that a parent who is able to care for a child and desires to do so, and who has not been found to be an unfit person to have the custody of the child, in an action or proceeding- where that question is in issue and upon competent evidence, is entitled to the custody of the child as against grandparents or others who have no permanent legal right to the custody of the child, even though at the time they are giving the child suitable care and have acquired an attachment for the child. See: Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968; In re Hollinger, 90 Kan. 77, 132 Pac. 1181; Pinney v. Sulzen, 91 Kan. 407, 137 Pac. 987; In re Brown, 98 Kan. 663, 159 Pac. 405; In re Zeigler, Petitioner, 103 Kan. 901, 176 Pac. 974; Smith v. Scheuerman, 133 Kan. 348, 299 Pac. 616; Andrews v. London, 134 Kan. 641, 7 P. 2d 91, and cases cited therein.
Counsel for appellee cite In re Bort, Petitioner, etc., 25 Kan. 308, and In re Bullen, Petitioner, etc., 28 Kan. 781, which deal with unusual situations, and cite, also, Chapsky v. Wood, 26 Kan. 650, and Woodall v. Alexander, 107 Kan. 632, 193 Pac. 185. These cases were not overlooked in the consideration of the later- cases, above decided, and while some of them present unusual situations, there is nothing in them contrary to the general principle of law above stated.
Counsel for appellee call attenion to the fact that appellant is now living in California, and if given custody of the child would take her there, out of the jurisdiction of the trial court. In its statement at the time of denying appellant’s application the court adverted to this fact, but apparently gave it but little weight. This was proper. If the father of the child had been found'to be a suitable person, and had been given custody of the child and was properly exercising the responsibilities thereby imposed, and appellant had asked for a change of custody, this point would have some force. As against the appellee here, it has none. In In re Bullen, Petitioner, supra, when Justice Brewer determined that the petitioner, who lived in London, was entitled to the custody of the child, he did not hesitate to order her sent there.
The record clearly shows appellee is a good woman, that she is attached to-the child, and would give her good care, in sickness or health. Appellant freely so testified at each of the hearings, and there is no evidence to the contrary. But, as determined in many of the cases hereinbefore cited, those facts are not controlling; indeed, they are of no weight as against a parent who has not been adjudged to be an unfit person to have the custody of a child, when asserted by one who is not a parent. There is no reason to say this child will not have a good home and be well cared for by her mother.
From what has been said it necessarily follows the judgment of the trial court should be reversed with directions to grant the application of appellant. It is so ordered.
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The opinion of the court was delivered by
Dawson, C. J.:
These actions which were tried together were brought by the plaintiff school districts to recover tuition charges from Clark county, on account of pupils of that county who attended the high " schools maintained by plaintiffs in neighboring counties.
For the high-school pupils residing in the northeastern part of Clark county it is more accessible to attend high school at Bucklin (S. D. No. 40) in Ford county, and for pupils residing in the eastern part of Clark county it is more convenient to attend high school at Protection in Comanche county. The legislature has provided for such situations by authorizing the county superintendent of the county where such high-school pupils reside to permit them to attend some more accessible high school in an adjacent county. Another prerequisite to such attendance is the approval of the governing body of the high school the pupils propose to attend.
The pertinent statute is G. S. 1935, 72-3806. It has been the subject of recent judicial construction. (Gridley Rural High-school Dist. v. Woodson County Comm’rs, 150 Kan. 704, 95 P. 2d 972, and in a second case having the same title, ante, p. 407, 125 P. 2d 383.) In those cases the plaintiff school district, situated in Coffey county, which had received the Woodson county high-school students, failed to recover its tuition charges chiefly because no provision had been made in the Woodson county budget law and cash-basis law to pay them. Here there is no such difficulty. An estimate of the requisite amount needed to pay plaintiffs’ tuition charges was made at $1,000 and a levy to raise that sum was included in the tax levies for the then current fiscal year, 1939-1940.
On or about February 9, 1940, the clerk of the board of district No. 40 presented to defendant his sworn voucher for tuition charges for five Clark county students who attended the plaintiff school for the first five months of the school year, totaling 464 days at 40 cents per day, $185.60; and on or about May 25, 1940, a similar voucher was presented for the remaining four months of the same school year, tuition charges for 393% days’ attendance of the same pupils, $157.40, a grand total demand of $343.
A similar voucher was presented on behalf of the Protection high school for tuition charges for fourteen Clark county students for their entire school year’s attendance, 2,463 days at 40 cents per day, a total of $985.20.
These voucher demands were rejected; hence these lawsuits, which were consolidated for trial. Plaintiffs prevailed, and defendant appeals, contending that the prerequisite requirements to subject Clark county to pay the plaintiffs’ tuition charges were not strictly complied with. The point is urged that the applications of the students with the proper endorsements of the Clark county superintendent and the approvals of the plaintiff school boards thereon were not filed with the county clerk of Clark county until sometime in October (or later), and that date was too late to inform the board of county commissioners and the county clerk of Clark county of the required amount to be raised by a levy for high-school tuition. True, the statute (G. S. 1935, 79-2927) directs the governing body of each taxing district to meet not later than August 1, to make up the budget for the ensuing year. Reasoning thus, it is argued that the applications of the students must be filed with the county clerk prior to August 1. Our first Gridley case, cited above, stressed the practical importance that the taxing authority should know in advance what burden of tuition charges would have to be provided for, but we did not say nor intimate that if the approved applications were not filed with the county clerk until a later date that the tuition charges based thereon could not be paid even if a tax levy based upon the county clerk's estimate of the requisite amount were actually made and the money collected.
There is a rule of statutory construction familiar to all lawyers, which is that when the legislature prescribes the time when an official act is to be performed, the broad legislative purpose is to be considered by the courts whenever they are called upon to decide whether the time prescribed by statute is mandatory or directory. If mandatory, there must be strict conformity. If directory, the legislative intention is to be complied with a nearly as practicable. Instances of the latter sort frequently arise, and' indeed they are particularly applicable in respect to the official mode of procedure in matters of taxation. For example, it is the duty of the board of county commissioners at its meeting on the first Monday in August to order the proper levies of every sort to-be extended on the tax rolls. (G. S. 1935, 79-1802.) Instances are not rare where the board has declined or failed to make a particular levy; mandamus is invoked and a decision may be reached some weeks later holding that the contested levy should be made, and it is then made, although the directory time at which it should have been made has passed. Again, the statute says the county clerk shall prepare and deliver the tax rolls to the county treasurer on or before November 1. (G. S. 1935, 79-1803.) If the work of preparing the tax rolls is not completed by the statutory date (and litigation over the legality of levies or other untoward circumstance sometimes causes delay), the statutory date on which the tax rolls should be delivered to the county treasurer must of necessity be regarded as directory rather than mandatory. Although the tax rolls are not delivered to the treasurer by the time directed by the statute, nevertheless we all have to pay our taxes when the belated delivery is made! See .discussions on mandatory and directory legislation, in Jones v. The State of Kansas, ex rel. Atherby and Kingsbury, 1 Kan. 273; Board of Education v. Barrett, 101 Kan. 568, 570, 167 Pac. 1068; City of Hutchinson v. Ryan, 154 Kan. 751, 121 P. 2d 179.
It is shown in the record that the $1,000 raised by tax levy to pay tuition charges, and an earlier balance of the same character, aggregating $1,967.40, have been transferred to the general fund of the county, and consequently it is suggested there is now no money in the tuition fund to pay plaintiffs’ claims. But since these transfers were made without legal sanction, indeed in violation of the state constitution (art. 11, sec. 5) the money raised by levy to pay tuition charges must be retransferred to where it belongs. Such in principle was this court’s ruling in Hicks v. Davis, 97 Kan. 312, 154 Pac. 1030. In that case the legislature appropriated an item of money to pay the traveling expenses of L. M. Hicks, a state grain inspector. Payment was to be made out of the grain inspection fee fund. Among the defenses pleaded in behalf of the state auditor who had declined to issue a warrant so that Hicks could draw the money was one “that there is no money in the grain inspection fee fund to pay this claim.” On that point this court said:
“We assume that this is because the books for the fiscal year ending June 30, 1915, have been closed, and that any balances then existing in that fund have reverted to the general revenue funds of the state. But the books were open when the petitioner filed this action. That crystallized the status of the fund as of that date, and if there we're moneys in the grain inspection fee fund at that time, the closing of the books will not bar the petitioner. There is no magic in bookkeeping. Books which have been closed in derogation of a lawful outstanding claim which had been'provided for by the legislature must be reopened and the claim paid and the proper entries made to recite the pertinent facts.” (p. 317.)
See, also, Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936.
The judgment is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Hoch, J.:
In an action brought in district court the husband of an insane wife sought authority for execution of an oil and gas lease on land owned by her and held as their homestead. Judgment was entered for the plaintiff, and under order of the court, a trustee, appointed for the purpose, joined the husband, on behalf of the incompetent wife, in the execution of the lease. A motion to vacate the judgment was overruled and this appeal followed.
On February 4,1942, an opinion per curiam by this court was filed reversing the judgment on the ground that the district court had no jurisdiction and stating that a formal opinion would follow later. (Starke v. Starke, ante, p. 1).
The motion to vacate alleged that the judgment was void for two reasons:
1. The court was without jurisdiction of the subject matter.
2. The judgment was in violation of article 15, section 9 of the Kansas constitution, the pertinent provisions of which are:
“A homestead . . . shall not be alienated without, the joint consent of husband and wife, when that relationship exists. . . .”
Insofar as it is necessary to notice, the petition filed at the inception of the action alleged that the defendant, Myrtle E. Starke, acquired title to a tract of about 145 acres in Barton county in 1923, and immediately subsequent to its acquisition she and her husband, the plaintiff herein, established their residence thereon, and that at all times since it has been their homestead; that Myrtle E. Starke and the plaintiff were married on November 8,1908, and have at all times since been husband and wife; that they are the parents of three children, one of whom is a minor, and that their daughter has two children, both of whom are minors, and that no guardian has been appointed for either of said minors; that in February, 1929, Myrtle E. Starke was found to be insane and was committed to a state hospital of which she has ever since been an inmate; and that on January'3, 1941, the defendant, Frank A. Moses, was appointed guardian of the estate of Myrtle E. Starke by the probate court of Barton county, Kansas.
The petition further alleged that the above-described real estate has some indication of being valuable for oil and gas purposes; that wells are being drilled in the vicinity and as a result of any development it is possible that oil from the lands of Myrtle E. Starke. and those persons who may ultimately become the owners of the land by inheritance may be drained away; that the estate of Myrtle E. Starke is not financially able to explore the land for oil and gas and it is to the best interests of her estate that the lands be leased for that purpose; that such lease will not be in contravention of the terms of any will or deed and will produce a revenue that could not otherwise be obtained and would protect the land from drainage and waste; that under the.constitution of Kansas a homestead may not be alienated without the joint consent of husband and wife when that relation exists, and that the supreme court has construed the above provision as preventing probate courts from authorizing the guardian of an insane person to join with the spouse of such insane person in the execution of conveyances or encumbrances against the homestead of such an insane person, and that by reason of this limitation upon the power and authority of probate courts it is impossible for the plaintiff or the guardian of Myrtle E. Starke, or both, or anyone else, to lease the land for oil and gas purposes, and that in view of the foregoing, although Myrtle E. Starke is entitled to the oil and gas underlying her land, she has no way or means of obtaining the benefit thereof and has no adequate remedy at law in order to enforce her rights thereto.
The petition further alleged that plaintiff, as husband of Myrtle E. Starke, is legally liable for her support and is interested in seeing that her property is managed in such manner as to produce an income which may be used for her benefit; that he has a homestead interest in the real estate, and for these reasons is justified in bringing this action, and that he brings the action against the defendants not only in their individual capacities but as representatives of all that class of persons born or unborn who may become owners of the real estate or any portion thereof by reason of becoming heirs at law of Myrtle E. Starke in case of her death; that Myrtle E. Starke has not executed a valid will and probably never will be able to make a will; that the action is brought for the express purpose of procuring the appointment of some person as trustee, for and on behalf of Myrtle E. Starke and all others who in the future may be come interested in said real estate by reason of becoming the heirs at law or the devisees of Myrtle E. Starke in case of her death, to execute an oil and gas lease for the purpose of developing and producing minerals from the real estate in order that the interest of Myrtle E. Starke and her successors in interest may be saved and preserved.
The petition further alleged that neither the said Myrtle E. Starke nor any of the other parties to the action have an adequate remedy at law by which to assert their rights or to obtain the relief sought.
The prayer of the petition was for the appointment of a trustee with power to make an oil and gas lease.
The persons named as defendants were the guardian of Myrtle E. Starke and the children and grandchildren, individually and as representatives of that class of persons born or unborn who may become heirs or devisees of said Myrtle E. Starke in case of her death, as well also an oil company to which reference will later be made. A guardian ad litem was appointed for the defendant, Myrtle E. Starke, and a guardian ad litem for the named minor defendants, each of whom filed answers.
Thereafter, a trial was had and the court found the facts in substantial conformity to the allegations of the petition, and on March 4, 1941, appointed the plaintiff as a trustee with power to execute an oil and gas lease in accordance with the court’s order, the details of which need not be noticed.
On March 7, 1941, the trustee filed a report of his proceedings and submitted an oil and gas lease to the Continental Oil Company for approval, which report and lease the court approved.
The motion to vacate was filed on March 9,1941, by the guardian and guardian ad litem, who here appeal from an order overruling the motion.
Before considering the question of jurisdiction raised by appellants, we note a contention made by appellee that the motion to vacate the orders for the lease came too late. This contention assumes that the orders were either valid or merely voidable. The assumption is untenable. If the court had no jurisdiction of the subject matter, the orders were void rather than voidable and could be vacated at any time. (G. S. 1935, 60-3009; 31 Am. Jur. 71, § 408; 33 C.. J.. 1075, § 36; In re Windell, 152 Kan. 776, 778, 107 P. 2d 708; Taylor v. Focks Drilling & Mfg. Corp., 144 Kan. 626, 62 P. 2d 903; Baker v. Kansas City, Mo., 118 Kan. 27, 28, 233 Pac. 1012; Kelso v. Norton, 74 Kan. 442, 87 Pac. 184.)
We consider now the question of jurisdiction. A guardian of Myrtle E. Starke’s estate had previously been appointed by the probate court. It was the guardian’s duty to look after her interests. Certainly the situation resulting from oil development in the vicinity of her land called for his attention. But instead of proceeding in the probate court, whether by the husband or by the guardian, to secure approval of the lease, relief was sought in the district court through a trustee appointed for the purpose.
The power of probate courts to deal with the property of insane persons roots in the constitution of the state. Article 3, section 8 of the constitution provides that “There shall be a probate court in each county, which shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law.” While the jurisdiction of the probate courts is limited (except possibly as to certain inherent powers [see In re Hanson, 80 Kan. 783, 105 Pac. 694; 21 C. J. S. 538, § 301]) to such powers as are conferred upon it by statute, it has very broad powers over the estates of insane persons (Foran v. Healy, 73 Kan. 633, 640, 642, 85 Pac. 751, 86 Pac. 470; Hill v. Honeywell, 65 Kan. 349, 351, 69 Pac. 334). These broad powers have been further broadened by the provisions of the present probate code which became effective July 1, 1939 (G. S. 1939 Supp. 59-la01 et seq.). In paragraph (6) of 59-301 of the new code it is provided that probate courts shall have power “to appoint and remove guardians for minors and incompetent persons, to make all necessary orders relating to their estates,” etc. (Italics supplied.) The new code specifically provided in paragraph (12), section 59-301, that probate courts “shall have and exercise such equitable powers> as may be necessary and proper fully to hear and determine any matter properly before such courts.” (Italics supplied.) Furthermore, the new probate code contains a number of specific provisions (G. S. 1941 Supp. 59-1806; 59-1807; 59-1808; 59-1809) relative to the power of guardians, subject to approval by the court, to sell, lease or mortgage the property of their wards. (The broad powers conferred in the new probate code over estates of decedents was considered in the recent case of Foss v. Miles, ante, p. 262, 124 P. 2d 438, and in Dixon v. Fluker, post, p. 399, 125 P. 2d 364, this day decided.)
While the delegation, by the constitution, to probate courts of probate jurisdiction and care over the estates of insane persons does not prevent the legislature from also conferring upon district courts certain original jurisdiction to deal with the same subject, matter (21 C. J. S. 731, § 488, note 4; Hill v. Honeywell, 65 Kan. 349, 351, 69 Pac. 334), the legislature has not clothed district courts with the power it assumed to exercise in the instant case. Certainly if any court had jurisdiction to take the action here sought, it was the probate court. The conclusion that the district court was without jurisdiction is further fortified by the well-established rule that even where there is concurrent jurisdiction, the court which first acquires jurisdiction ordinarily retains it to the exclusion of another court which seeks to assume it. (21 C. J. S. 745, § 492; 14 Am. Jur. 435, § 243; Proctor v. Dicklow, 57 Kan. 119, 126, 45 Pac. 86; Watts v. Watts, 151 Kan. 125, syl. ¶ 2, 98 P. 2d 125.)
The conclusion reached on the question of jurisdiction requires reversal of the judgment. It is therefore unnecessary to pass upon the constitutional question and we think inadvisable to do so in this ease.
The judgment is reversed with directions to dismiss the action. | [
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The 'opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the petitioner, an indigent, in a proceeding instituted pursuant to the provisions of K. S. A. 60-1507.
On the 31st day of May, 1963, a complaint was filed in the city court of Independence, Montgomery County, Kansas, charging the petitioner and two others jointly with burglarly in the second degree and grand larceny. The complaint alleged that the offense was committed on or about the 28th day of May, 1963. A warrant was issued for the petitioner s arrest on the 31st day of May, 1963, and he was brought before the magistrate on June 1, 1963.
On the 3rd day of July, 1963, the preliminary examination was held and the petitioner was not represented by counsel. The petitioner was bound over for trial in the district court of Montgomery County, Kansas, sitting at Independence. The information charged the petitioner and the other defendants jointly with burglary in the second degree under G. S. 1961 Supp., 21-520, and larceny in connection with the burglary under G. S. 1949, 21-524.
On the 9th day of September, 1963, the petitioner was brought before the district court for arraignment. At that time counsel was appointed to represent him and later on the same day the petitioner appeared with counsel and entered a plea of not guilty to the charges. The matter was set for trial on the 11th day of October, 1963.
On the 11th day of October, 1963, the petitioner appeared with counsel and the trial of the matter was continued until the 14th day of October, 1963.
On the 14th day of October, 1963, the petitioner appeared with counsel and withdrew his plea of not guilty to the charges contained in the information and entered pleas of guilty to such charges. He was thereupon sentenced by the court to confinement at the state penitentiary for a term of not less than five nor more than ten years for burglary in the second degree, and for a term of not exceeding five years for grand larceny in connection therewith, the sentences to run concurrently.
On the 4th day of March, 1965, the petitioner filed his motion attacking the judgment and sentence pursuant to the provisions of K. S. A. 60-1507 and Rule No. 121 of the Supreme Court. (See, 194 Kan. xxvii.)
The trial court after hearing the matter found: (1) That the petitioner raised no questions or issues in his motion that required his personal presence in court or that required the appointment of counsel to represent him at such hearing; (2) that the allegations of the motion were unsupported and directly refuted by the records and files in the case; (3) that the petitioner entered his plea of guilty to the charges, and that said pleas of guilty were entered by the petitioner while represented by competent counsel, and that said pleas were voluntary in all respects; (4) that the judgment and sentence entered in the criminal proceeding against the petitioner was due and proper in all respects and in accordance with law, and that the same was valid and should not be vacated or set aside; and (5) that the petitioner’s motion to vacate and set aside the judgment and sentence should be overruled.
Appeal has been duly perfected from the order of the trial court overruling the petitioner’s motion, and he is represented by counsel on appeal in this court.
Counsel for the appellant raises three points on appeal.
The first is that the appellant was not represented by counsel at his arraignment and preliminary examination. It is, of course, improper to refer to the reading of the charges to one accused before a magistrate as the arraignment. At the arraignment of the appellant on the information filed in the district court he was represented by competent counsel.
Whether the appellant was entitled to court-appointed counsel at his preliminary examination on the facts here presented has been before this court on numerous occasions. The court has consistently held that an indigent defendant is not entitled to the appointment of counsel at his preliminary hearing. (State v. Talbert, 195 Kan. 149, 402 P. 2d 810, cert. den. 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143; Bergin v. State, 194 Kan. 656, 400 P. 2d 978; State v. Richardson, 194 Kan. 471, 399 P. 2d 799; State v. Jordan, 193 Kan. 664, 396 P. 2d 342; and State v. Daegele, 193 Kan. 314, 393 P. 2d 978, cert. den. 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686.)
The second point raised by the appellant is that the state was out of time in the prosecution of the criminal action which resulted in his conviction. On this point the appellant contends he was arrested on the 25th day of April, 1963; that the record shows the warrant for his arrest in said criminal proceeding was issued on the 31st day of May, 1963, and that he was first brought before the magistrate on the 1st day of June, 1963.
The files and records in the criminal proceeding before the trial court show this contention to be without merit. The information charges the appellant with having committed the offenses in question on or about the 28th day of May, 1963, and that he ultimately entered a plea of guilty to the charges as filed. Obviously, if the appellant was in confinement and under arrest from the 25th day of April, 1963, until the issuance of the warrant on the 31st day of May, 1963, he would not have pleaded guilty to offenses having been committed on or about the 28fh day of May, 1963. He would have had a perfect alibi. The records in the case disclose that the appellant was arrested on the 31st day of May, 1963.
Even if it be assumed there was some delay, it was held in Cooper v. State, 196 Kan. 421, 411 P. 2d 652, that undue delay in bringing one accused of crime before a magistrate is not, of itself, a denial of due process. It is only where a prehminary delay in some way deprives an accused of a fair trial that there can be a denial of due process.
The third point raised by the appellant is that the order of the trial court herein overruling his motion to set aside the judgment, without requiring his personal presence in court and without requiring the appointment of counsel to represent him therein, was erroneous because it was necessary for the appellant to introduce testimony, including the testimony of himself, in order to determine whether he was held a prisoner an unreasonable length of time between his arrest and the issuance of a warrant.
Where the record and files in the criminal proceeding clearly refute the contention of -the appellant, as disclosed above, it is unnecessary to have the appellant before the trial court when the hearing is conducted, or that he be represented by counsel at such hearing.
The pertinent provisions of K. S. A. 60-1507 read:
“. . . Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing. . . .”
In October, 1964, this court implemented 60-1507, supra, by Rule No. 121, which the trial court correctly applied to the facts in this case. (See, Rule No. 121 [/], [g], [h], [i] and [/].)
In State v. Burnett, 194 Kan. 645, 400 P. 2d 971, this court, while recognizing an indigent petitioner’s full opportunity to present substantial matters afEecting the validity of a sentence, said as follows:
“. . . The corollary of the requirement that a full, or plenary, hearing be accorded a prisoner, when substantial questions are raised, is the court’s right to dispense with such a complete hearing and to determine the questions submitted in a more summary fashion whenever ‘the files and records of the case conclusively show that the movant is entitled to no relief.’ ”■ (p. 647.)
We hold the trial court was well within the confines of sound discretion in determining that a full hearing, with the appellant present and counsel representing him, was not required to determine the issues before the court on the basis of the appellant’s motion.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for personal injuries inflicted upon the plaintiff, a pedestrian, as a result of a collision between two automobiles driven by the defendants. The case was tried to a jury which returned a verdict for the plaintiff against defendant Carroll. In its answer to special questions the jury found the defendant Schnebly guilty of no negligence which was a proximate cause of the plaintiff’s injuries. The plaintiff appeals contending she is entitled to judgment against the defendant Schnebly as a matter of law.
The primary question presented is one of procedure under the new code.
The accident in question occurred at an intersection of two one-way streets. Betty L. Carroll (defendant-appellee) drove her automobile in the wrong direction on a one-way street and struck Joseph R. Schnebly (defendant-appellee) who was traveling in his automobile in the proper direction on a one-way through street at a reasonable rate of speed. As a result of the collision a sign at the comer of the intersection was knocked down by Schnebly’s automobile which in turn struck Mary Pat Noll (plaintiff-appellant), age fifteen, who was a pedestrian on the sidewalk near the intersection talking to a girl friend.
Schnebly’s automobile, being driven in an easterly direction, was struck by the automobile driven by Carroll in a southerly direction on the left front comer. The evidence discloses that Schnebly’s automobile could not be guided or controlled after the impact, as a result of which it traveled only about twenty to twenty-five feet over the curb and into the sign which struck the plaintiff on the leg.
The jury returned a verdict in favor of the plaintiff and against Carroll in the sum of $30,350. The jury found in favor of Schnebly. In answer to special questions it found Schnebly was not guilty of any negligence which was the proximate cause or a contributing proximate cause of the collision, and it found Carroll was guilty of negligence which was the proximate cause of the collision in that she was driving the wrong way on a one-way street, and did not maintain a proper lookout when entering a through highway or street.
The trial court entered judgment on the verdict against Carroll and also entered judgment for the defendant Schnebly for his costs.
Thereupon the plaintiff filed a motion for a new trial and for judgment against Schnebly notwithstanding the verdict, both of which the trial court in due course overruled.
The primary contention of the appellant on appeal is that the undisputed evidence discloses Schnebly was guilty of negligence which was a proximate cause of the plaintiff’s injuries as a matter of law, and that by reason thereof the trial court erred in failing to sustain the appellant’s motion for judgment notwithstanding the verdict.
K. S. A. 60-250 (b) provides in part:
“(b) Reservation of decision on motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. A party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; . . ,” (Emphasis added.)
Subsection (b) of 60-250, supra, in the code is the same as the corresponding subsection of Federal Rule No. 50, except that the federal rule imposes a time limit within which to file such motion after the reception of a verdict.
The emphasized portion of subsection (b) in 60-250, supra, is clearly worded. It requires that a motion for a directed verdict at the close of all the evidence be a condition precedent to the filing of a motion for judgment notwithstanding the verdict. Federal courts have construed the corresponding provision in Rule No. 50 (b) of the Federal Rules of Civil Procedure to mean that a motion for judgment notwithstanding the verdict may not be entertained by the trial court, unless the moving party has made a timely motion for a directed verdict at the close of all the evidence. (Indamer Corporation v. Crandon, 217 F. 2d 391 [5th Cir. 1954]; Guerrero v. American-Hawaiian Steamship Company, 222 F. 2d 238 [9th Cir. 1955]; and Tsai v. Rosenthal, 297 F. 2d 614 [8th Cir. 1961].)
The appellant in her statement of points contends the trial court erred in denying her motion to direct a verdict in her favor against both appellees. The court is referred to a statement of counsel in the record made at the time the trial court determined what instructions it would give. The statement is as follows:
“Mr. Dickinson: Suggest this; if there had been error at all in these instructions it is not instructing negligence. That negligence has been established as a matter of law on the part of both defendants, and the only question is how much because there isn’t any question that Betty Carroll was going the wrong way on a one way street. There isn’t any question that she did not see Mr. Schnebly sometime when the evidence is clear that she could have seen him plus other items which are not perhaps as clear as a matter of law with reference to Mr. Schnebly. It is unquestioned under his testimony that he looked neither to right or left and wasn’t interested in doing so; and that he did not see what he clearly could have seen and what a car a half a block behind him saw quite clearly and saw happening, and that was that he made no effort to either stop or turn aside too. I believe that actually as a matter of law there is negligence on the part of both of these drivers, and if there need to be any error here at all it is an error in not sending the Jury out to assess damages only.” (Emphasis added.)
We do not construe the foregoing suggestion of counsel for the appellant as a motion for a directed verdict. Nowhere in these remarks does counsel move for a directed verdict. Furthermore, no motion for a directed verdict is shown in the journal entry, although all other motions made during the trial, and motions made after the entry of judgment on the verdict, are shown.
We therefore hold that the appellant, having made no motion for a directed verdict at the close of all the evidence in the case, was not entitled under 60-250 (b), supra, to have her motion for judgment notwithstanding the verdict considered by the trial court as challenging a review of the evidence which was before the jury.
Another point which the appellant seeks to have reviewed on appeal is the order of the trial court overruling her motion for summary judgment against Schnebly. This motion was filed before trial on the ground that the deposition given by Mr. Schnebly showed his liability as a matter of law.
On appeal the record fails to set forth the deposition given by Mr. Schnebly, and it is therefore impossible for this court to pass upon the question. It is the appellant’s obligation to designate a record sufficient to present her points on appeal to this court. (Supreme Court Rule No. 6 [a], 194 Kan. xrv.)
It is to be observed the motion for summary judgment was presented immediately before trial — before the trial court had heard any of the evidence. In Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, it was held that when there is a good faith dispute over the facts, the parties must be afforded a trial at which the evidence is presented and the live facts determined.
For the reasons heretofore assigned the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
The plaintiffs-appellants, hereafter referred to as plaintiffs, commenced this action on an award of the examiner for the Workmen’s Compensation Director modifying a judgment of the District Court of Cherokee County. The judgment awarded compensation to claimant John Jenkins from defendant-appellee, hereafter referred to as defendant. Included in the award was an order directing reimbursement of sums totaling $997.50 previously paid by plaintiffs to persons furnishing medical and hospital services to claimant.
The facts are not in dispute.
On October 9, 1963, the District Court of Cherokee County entered judgment against Cherokee County, the employer, and its workmen’s compensation carrier, defendant herein, awarding compensation to claimant and directing reimbursement of plaintiffs. On November 7, 1963, on the joint application of the parties, the examiner for the Workmens Compensation Director at Pittsburg approved a settlement modifying the award. The portion of the examiner’s award pertinent to our consideration is as follows:
“AWARD
“The Examiner, after hearing the evidence offered by the parties, and otherwise being advised, finds that the settlement should be approved and an order in conformity therewith made.
“It Is Therefore Ordered that the award of the District Court of Cherokee County, Kansas, entered October 9, 1963, be modified as follows: That in lieu of payments therein provided, respondent and carrier pay to claimant the sum of $7,500.00; that they further pay the Newman-Young Clinic the remainder of the bill for professional service given this claimant by them in the sum of $203.50, and that they also assume the responsibility for reimbursing the Blue Cross and Blue Shield for monies expended by that concern in the payment of the bill of Mercy Hospital in the sum of $598.00, and the sum of $299.50 to the Newman-Young Clinic.”
It is admitted that defendant paid the award of claimant but has not paid plaintiffs.
Plaintiffs filed a petition in the instant action in the district court of Shawnee County on December 28, 1964. The facts as related herein were alleged in the petition and in addition plaintiffs stated that a demand was made of defendant pursuant to K. S. A. 44-512a and defendant has not complied. Plaintiffs prayed for judgment in the amount of the award with interest at 6% per annum from November 7, 1963, and for reasonable attorney fees. Defendant filed an answer in the nature of a general denial and also alleged that payments made by plaintiffs on behalf of claimant were made voluntarily.
Plaintiff next filed a motion for summary judgment supported by an affidavit of an officer of the Blue Cross, Blue Shield. The affidavit was not controverted by defendants. Portions material for consideration herein are as follows:
“2. Said corporations paid Mercy Hospital and the Newman-Young Clinic (Dr. Irby) in August and September in 1961, pursuant to contracts providing such benefits to John Jenkins. The said corporations, their officers, agents and employees, had no knowledge at the time such payments were made that the said John Jenkins had a claim pending under the Kansas Workmen’s Compensation Act or that he was eligible for Workmen’s Compensation benefits providing for full or partial payment of the said bills incurred at said Hospital and Clinic.
“3. The contract issued by said corporations providing coverage for John Jenkins provides in Article IV thereof:
“ ‘D. No payment will be made for services or benefits for which the member would be eligible for full or partial payment under Workmen’s Compensation or other public laws.’”
The plaintiffs’ motion for summary judgment was overruled and a later motion for summary judgment filed by defendant was sustained by the trial court without a written opinion. The plaintiffs duly perfected an appeal from both rulings.
Plaintiffs contend the trial court erred in sustaining defendant’s motion for summary judgment on the grounds that plaintiffs did not have a judgment on which they could sue.
Defendant supports its position by the admittedly “legalistic” argument that since plaintiffs were not parties to the original Workmen’s compensation case they are not entitled to judgment on the award.
It appears that the award to plaintiffs was made by the trial court pursuant to K. S. A. 44-510 (1). This section establishes the duty of the employer to provide the services of a physician and such medical and hospital treatment as may be reasonably necessary to cure and relieve the workman from the effects of the injury. The respondent’s liability to claimant is that of the employer and is based upon the contract of employment which includes the provisions of the act. (Workman v. Kansas City Bridge Co., 144 Kan. 139, 58 P. 2d 90; Johnson v. Skelly Oil Co., 180 Kan. 275, 303 P. 2d 172.) The duty of defendant as respondent’s insurance carrier in this case to pay for the medical and hospital expense of claimant is clear and ■unequivocal. It must be conceded that an award to Mercy Hospital and Newman-Young Clinic could have been made for the total amount of their services furnished claimant.
The plaintiffs, of course, furnished no medical service themselves but merely paid for services furnished by others pursuant to their contract with claimant Jenkins. The plaintiffs were substituted by the court for Mercy Hospital and the Newman-Young Clinic who had furnished hospital and medical services for claimant. Upon such substitution by the court plaintiffs became parties in the case. There was no objection by defendant to such substitution by the trial court nor appeal taken from that judgment. Defendants not only failed to object to the substitution by the district court but jointly with claimant initiated an application to the examiner to approve a settlement modifying the court’s award and then acquiesced in the settlement award by paying claimant the agreed total amount.
The inconsistent position as to the award taken by defendant in this case cannot be maintained. It is well established in this jurisdiction that a party who has complied with a judgment, either partially or in toto, acquiesces in that judgment and is estopped to attack it. (See Hermesch v. Haverkamp, 191 Kan. 365, 381 P. 2d 360, and cases cited therein.)
After failing to object to the substitution of plaintiffs and then acquiescing in the settlement award by paying the agreed sum to claimant, defendants are not now in a position to successfully attack the award in an independent action brought to enforce it.
The general rule is stated in 58 Am. Jur., Workmen’s Compensation § 493, as follows:
“The adjudications and awards of compensation boards or commissions, as well as the judgments of courts, in proceedings for the recovery of compensation, are generally held to be conclusive upon the parties and their privies, as to the matters and issues involved or justiciable therein, so as to preclude, under the doctrine of res judicata, the relitigation thereof in subsequent proceedings. . . .
“In order to bring an administrative determination within the operation of the rule of res judicata, it must, as in other cases, be final and enforceable. Also, to be conclusive, a decision of a compensation tribunal must be within its jurisdiction.”
We have no quarrel with authorities cited by defendants stating the general rule to be that a judgment may not be rendered in favor of or against a person who is not made a party to the action, although it is not without exception in this jurisdiction. (See Lessert v. Krebs, 108 Kan. 752, 196 Pac. 1070.) The rule is not applicable here were plaintiffs were substituted as parties in the award with the compliance and later the acquiescence of defendant.
Under the views expressed herein it would serve no useful purpose to lengthen this opinion by further discussion of points raised by the defendant.
There appearing no dispute as to any material fact the matter may be disposed of by summary judgment. (See Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693.)
The judgment is reversed with directions to enter judgment for plaintiffs.
Fatzer, J., concurs in the result. | [
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The opinion of the court was delivered by
Harman, C.:
This appeal concerns constitutionality of K. S. A. 8-259 (a) as it pertains to a hearing in district court based on an appeal from an order by the vehicle department of the state highway commission revoking a driver’s license for refusal to submit to a chemical test to determine blood alcohol content pursuant to K. S. A. 8-1001.
The facts are not in dispute. Plaintiff, referred to hereinafter as the appellant, was arrested in Shawnee county, Kansas, upon a charge of driving a motor vehicle while under the influence of intoxicating liquor and was requested by the arresting officer to submit to a chemical test to determine the alcoholic content of his blood. He refused the test. The arresting officer made a sworn report of the refusal to the motor vehicle department which first suspended and later, after a hearing, revoked appellant’s driver’s license. Appellant then filed his petition in the district court of Shawnee county, Kansas, against the appellee as the superintendent of the motor vehicle department of the state highway commission seeking a de novo jury trial of the matter of the revocation pursuant to the terms of K. S. A. 8-259 (a). Appellee first filed an answer to this petition, denying certain allegations thereof, and he later filed a motion to dismiss the action upon the ground that K. S. A. 8-259 (a) purports to impose nonjudicial functions upon a court and is thereby violative of the separation of powers’ doctrine of the Kansas constitution.
In a pretrial order the trial court upheld this contention as to unconstitutionality but ruled that it would entertain the proceeding under the provisions of the general appeal statute, K. S. A. 60-2101, and determine as a question of law, without a jury, whether the action of the vehicle department in suspending and revoking appellant’s license was arbitrary, capricious, unreasonable or otherwise unlawful. Appellant brings the constitutional question here for review.
K. S. A. 8-259 (a), with which we are primarily concerned, was enacted in 1937 and provides:
“Any person denied a license or whose license has been canceled, suspended, or revoked by the department except where such revocation is mandatory under the provision of section 8-254 of the General Statutes Supplement of 1961 or any amendments thereto shall have the right to file a petition within sixty (60) days thereafter for a hearing in the matter in the district court in the county wherein such person shall reside, and such court is hereby vested with jurisdiction, and it shall be its duty to set the matter for hearing upon ten (10) days’ written notice to the department, and thereupon to take testimony and examine into the facts of the case, and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this act: Provided, Such petitioner shall file in such court a bond in the amount of one hundred dollars ($100) conditioned that he will without unnecessary delay appear in such court at the time set by the court for hearing said matter and pay all costs in the event the court determines that said petitioner’s license is subject to suspension, cancellation or revocation: Provided further, The trial on appeal as herein provided for shall be a trial de novo and the licensee shall have the right of trial by jury upon demand therefor: Provided further, The court having jurisdiction of said appeal, on proper application being made, may order a stay of any suspension or revocation pending final judgment, and if the license has been surrendered by the licensee said order shall direct the department to return such license to the licensee, and until such license is so returned such stay order shall be deemed equivalent to the operator’s or chauffeur’s license so surrendered.”
A second statute we should notice is K. S. A. 8-1001, which, together with others implementing it, was enacted in 1955, and provides as follows:
“Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given his consent to submit to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood whenever he shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to his arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer. If the person so arrested refuses a request to submit to the test, it shall not be given and the arresting officer shall make to the vehicle department of the state highway commission a sworn report of the refusal, stating that prior to the arrest he had reasonable grounds to believe that the person was driving under the influence of intoxicating liquor. Upon receipt of the report, the vehicle department of the state highway commission shall suspend for a period not exceeding ninety (90) days the person’s license or permit to drive or nonresident operating privilege and, after granting the person an opportunity to be heard on the issue of the reasonableness of his failure to submit to the test, the vehicle department of the state highway commission may revoke the person’s license or permit to drive or nonresident operating privilege.”
The validity of this statute was upheld in Lee v. State, 187 Kan. 566, 358 P. 2d 765. Appellant first asserts that the vehicle department, being an agency of the state, had no standing to challenge constitutionality of legislative enactments, and he cites authority in support of that general proposition. We need not go into the matter because, irrespective of this, we think the constitutional question is properly in the case before us and must be decided upon its merits. The trial court had a duty to examine into the question of its jurisdiction as to subject matter. In Kelly v. Grimshaw, 161 Kan. 253, 167 P. 2d 627, it is said:
“One of the first and continuing duties of a court is to determine whether the court has jurisdiction of the subject matter of the action.” (Syl. f 2.)
And it is the duty of a court to raise and determine such jurisdictional question even if the parties fail to do so (see Williams v. Board of County Commissioners, 192 Kan. 548, 553, 389 P. 2d 795). No matter how initially raised, the constitutional question is brought into focus by the action of the trial court itself in determining the scope of its review in this type of case. The legislative enactment in question did purport to prescribe the duties of the trial court to the extent of affecting the subject matter of the action, and that court thus became directly concerned with the propriety of such legislation and any infirmity therein, including constitutionality, and could rule thereon.
We therefore turn to the principal issue, constitutionality of K. S. A. 8-259 (a) as applied to the instant situation. The trial court ruled that the statute imposed administrative (licensing) duties upon the district court in violation of the separation of powers’ doctrine of the Kansas constitution.
Although we have no express provisions in our constitution concerning separation of powers, this court long ago recognized such doctrine to be inherent therein to the effect that the constitution created three branches of government, namely, executive, legislative and judicial, which are to be maintained distinctly separate in the exercise of their respective powers, and that none may lawfully exercise functions belonging to the others. For an excellent discussion of this doctrine and its application up to that time, see State v. Johnson, 61 Kan. 803, 60 Pac. 1068. Later expressions on the subject may be found in State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537, and State, ex rel., v. State Office Building Commission, 185 Kan. 563, 345 P. 2d 674.
Preliminary to our problem we will not go into the familiar aphorisms as to rules of statutory construction applicable to determining constitutionality other than to quote what was recently said with respect to the particular doctrine involved herein in State v. Latham & York, 190 Kan. 411, 375 P. 2d 788, as follows:
“. . . it is a well-settled concept o£ constitutional law that in distributing the power of government, the constitution of Kansas creates three distinct and separate departments; the legislative, the executive, and the judicial. Their separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, namely, to preclude a commingling of these essentially different powers of government in the same hands. The doctrine of separation of powers of government is to enable the government to control the governed; and also to oblige it to control itself. The latter is as important as the former and more difficult. Its object is the protection of the liberties of the people from the accumulation of too much power in the hands of any person or factions and is essential to the survival of our government. Hence, it is imperative that each department should be kept completely independent of the other — independent not in the sense that they shall not co-operate to the common end of carrying into effect the purposes of our constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to the coercive influence of either of the other departments. . . (p.422.)
It is clear the problem here is to determine just what function is placed upon the district court in this type of hearing. Is it legislative? If so, the statute must be held bad. If it is judicial or quasi-judicial, then the constitution presents no limitation for it provides the legislature can confer upon the district court whatever jurisdiction it may choose (Constitution, Article 3, Section 6).
We state at the outset, and for reasons which should become apparent, that we limit this determination to appeals from suspension and revocation orders based on refusal to submit to chemical tests for blood alcohol content pursuant to K. S. A. 8-1001. The statute calls for a trial de novo with a further provision that the licensee has the right of trial by jury upon demand therefor. This statute has been interpreted by this court as meaning that the only issue before a district court on such an appeal is the reasonableness of the failure of the petitioner to submit to the chemical test (Marbut v. Motor Vehicle Department, 194 Kan. 620, 400 P. 2d 982).
Thus there is a standard or guideline plainly present in the statute — reasonableness of the failure to submit to the chemical test — which must be kept in mind. We recognize that the discretion of a court is not to be substituted for the discretion of an administrative agency, and further, that the business of licensing is generally to be regarded as an administrative function (see State, ex rel., v. Molder, 98 Kan. 465, 158 Pac. 408), and we are not disposed to commit courts to the business of licensing. But here the discretion of those charged with administering the law in the first place is circumscribed by the statutory criterion that the failure to submit to the chemical test must be unreasonable before suspension or revocation is to be applied. Courts and juries deal constantly, in many ways, and have traditionally, with determining in retrospect whether the criterion of reasonableness has been met under the particular circumstances. The term reasonableness is one with a meaning well developed and familiar to courts, and courts and juries cannot be said to be lacking in qualification or expertise to make such determination as is here involved. Such determination does not involve the formulation of policy normally associated with the legislature. The legislative power was exercised when the legislature provided for a review in the district court, the particular scope of the review being within legislative competence so long as it is judicial in nature. The review provided is one appropriate for judicial determination. The statute does no more than empower the court, and the jury when called into play, upon consideration of the evidence, to determine the question of reasonableness of the refusal. The statute further prescribes that testimony be taken and an examination made into the facts. This necessarily calls for a weighing of the evidence pro and con where controversy exists and a determination based on a preponderance thereof. Weighing evidence and determining questions of reasonableness have always been regarded as judicial functions. Everything considered, we believe and hold that the review provided is sufficiently judicial in character, and that the court and jury are not called upon to exercise legislative power in violation of the separation of powers’ doctrine, under the specific facts presented in this case (see 2 Am. Jur. 2d, Administrative Law, § 581; 16 Am. Jur. 2d, Constitutional Law, § 222).
We further hold that K. S. A. 8-259 (a) requires a trial de novo of the particular question at issue, governed by the rules applicable to civil proceedings in district court, with the burden of proof on petitioner as the one seeking affirmative relief, and further, the exercise by the court of an independent judgment, with right of trial by jury under appropriate instructions if demanded by petitioner.
The order of the trial court is reversed with directions to proceed in accord with the views herein expressed.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment rendered in a proceeding, instituted under the provisions of K. S. A. 60-1507, challenging the validity of prior judgments and sentences in two criminal actions.
The facts essential for a proper understanding of the issues involved will be chronologically summarized.
On May 26, 1961, a complaint was filed against Kenneth Wayne Robins and the appellant, Robert Victor Coats, charging them with burglary and larceny on the night of May 24, 1961. A preliminary hearing was held for Coats on June 9, 1961, and he was bound over to the district court for trial. Coats had no counsel at the preliminary hearing and he was held in jail because of his inability to make bond. This proceeding was docketed in the district court of Cowley County as case No. 6001.
On September 1, 1961, a complaint was filed against Coats charging him with the willful destruction of Cowley County property. A preliminary hearing was held on this charge on September 13, 1961, and Coats, not represented by counsel, was then bound over to the district court for trial. This case was docketed in the district court of Cowley County as case No. 6005.
Later, and on September 15, 1961, the parties in case 6001 were called before the district court for arraignment. At the request of the state counsel was appointed to represent both of the defendants in case No. 6001. Subsequently Robins and Coats entered pleas of guilty as charged in that case.
Coats was then arraigned in case 6005 on the charge of willful destruction of county property. With the same court-appointed counsel representing him he entered a plea of guilty to that charge. He was then sentenced in case 6001 for a term of not less than five years nor more than ten years on the charge of burglary and for a term of not to exceed five years on the charge of larceny, the sentences to run concurrently. Thereafter he was sentenced in case 6005 for a term of not less than one year nor more than five years, the sentence to run consecutively with the sentences in case 6001.
On March 30, 1965, appellant filed his motion to vacate the judgment and sentences rendered in criminal case 6001 and the judgment and sentence rendered in criminal case 6005, both in the district court of Cowley County. The motion was filed pro se and was accompanied by a forma pauperis affidavit.
In the foregoing motion appellant contends:
“1. He was unlawfully denied assistance of counsel at his preliminary hearing.
“2. That the state’s witnesses committed perjury at the preliminary hearing.
“3. That false promises were made by the County Attorney in order to entice Coats to confess.
“4. Political corruption.
“5. That Coats was not allowed assistance of counsel until his arraignment, and then for only five minutes prior to the time he pled guilty; thus, Coats contends he was denied effective assistance of counsel.”
On May 20, 1965, the district court of Cowley County filed its order and judgment finding that the files in cases Nos. 6001 and 6005 conclusively showed that the appellant was entitled to no relief. The district court did not appoint counsel for him and did not grant him a hearing on his motion.
Notice of appeal from the order overruling the motion to vacate the judgments and sentences was filed by appellant on July 14, 1965. At the same time he filed a motion for appointment of legal counsel, a motion for production of records, and a forma pauperis affidavit. Thereafter counsel was appointed to represent appellant and on August 9, 1965, the district court entered an order allowing him to proceed in forma pauperis.
At the outset it should be stated that in the instant appeal appellant has abandoned all of the contentions raised by him in the motion filed in the court below except (1) failure to have counsel at his preliminary hearings and (2) that he was denied effective counsel at his arraignments. However, he has added two other contentions wherein he complains of the failure of the district court to appoint legal counsel and failure to allow a full hearing in the proceeding under 60-1507, supra.
Before any consideration is given to appellant’s complaints we should give our attention to a claim, advanced by the state, challenging the right of the appellant to be heard in the present proceeding. In this connection the state asks the following question.
“Was the appellant entitled to consolidate the sentences received in two completely separate and independent criminal actions as a basis for his motion pursuant to K. S. A. 60-1507?”
Under the facts as disclosed by the record we are forced to answer the foregoing question in the affirmative. Both cases involved were before the same district court. The arraignments were on the same day and a plea of guilty was entered in each case. The sentence in case 6005 was to be served consecutively with the sentences imposed in case 6001. The appellant attacked the judgment and sentences in 6001 and the judgment and sentence in 6005 on the same grounds.
Appellant could accomplish nothing by attacking the judgment or sentence in one case if the other remained standing. Rule 121 (c) of this court provides in part:
“(c) When Remedy May Be Invoked. (1) The provisions of section 60-1507 may be invoked only by one in custody claiming the right to be re leased, (2) a prisoner has no right to an adjudication of a motion challenging the validity of a sentence where notwithstanding an adjudication of invalidity of the sentence challenged he would still be confined under another sentence. . . .”
In King v. State, 195 Kan. 736, 408 P. 2d 599, we held:
“A prisoner is not entitled to challenge the validity of a sentence by a motion filed under K. S. A. 60-1507 where, despite an adjudication finding the sentence void, he would still be confined under another sentence.” (Syl.)
We do not believe that Rule 121 (c) of this court or our decision in the King case are to be considered as having application to a situation such as has been heretofore outlined.
Turning now to the appellant’s contentions we first find the complaint that the district court failed to appoint legal counsel and failed to allow appellant a full and complete hearing on his motion to vacate the involved judgments and sentences.
Rule 121 of this court, so far as here pertinent, provides:
“(h) Presence of Prisoner. The prisoner should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which he participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.
“(i) Right to Counsel. If a motion presents substantial questions of law or triable issues of fact the court shall appoint counsel to assist the movant if he is an indigent person.”
It necessarily follows that if there are no substantial issues of fact disclosed by the record a full evidentiary hearing is not necessary and if there are no substantial questions of law or triable issues of fact disclosed by the record the appointment of counsel to assist the movant is not necessary. Whether or not the motion presents substantial issues of fact or questions of law must be determined from an examination of the issues contained in appellant’s motion to vacate and brought to this court for review. The appellant frankly admits as much. He states:
“If, after considering the next section of this argument, the court determines that appellant’s motion to vacate judgment and sentence did present substantial questions of law or triable issues of fact, then we submit that it was mandatory that the District Court appoint counsel to represent appellant on his motion.”
The appellant has now brought to this court, which is all that remains from his original contentions, the claim that he has been denied his constitutional rights for the reason that no attorney was appointed to represent him at the preliminary hearings, and the claim lie was given inadequate opportunity to consult with the attorney appointed to represent him at his arraignments.
It is neither necessary nor required that we give much time or space to appellant’s suggestion that counsel should have been appointed to represent him at the preliminary hearings as we have held to the contrary in numerous cases. See, e. g., State v. Crowe, 190 Kan. 658, 378 P. 2d 89; State v. Naillieux, 192 Kan. 809, 391 P. 2d 140, cert. den. 379 U. S. 864,13 L. Ed. 2d 67, 85 S. Ct. 131; State v. Daegele, 193 Kan. 314, 393 P. 2d 978, cert. den., 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686; Tarr v. State, 194 Kan. 798, 402 P. 2d 309; Powers v. State, 194 Kan. 820, 402 P. 2d 328; State v. Talbert, 195 Kan. 149, 402 P. 2d 810, cert, den., 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143; Chance v. State, 195 Kan. 430, 407 P. 2d 236, cert. den., 382 U. S. 1019, 15 L. Ed. 2d 534, 86 S. Ct. 638; Blacksmith v. State, 195 Kan. 523, 407 P. 2d 486; Cleveland v. State, 195 Kan. 544, 407 P. 2d 488; Shores v. State, 195 Kan. 705, 408 P. 2d 608; Fields v. State, 195 Kan. 718, 408 P. 2d 674.
A preliminary hearing is not a trial. It serves the same purpose as a presentment to a grand jury. Neither serves any purpose but to hold a suspect for a trial by a jury in a district court where all of his constitutional rights are fully protected in this state. Moreover, the well-established rule in this jurisdiction is that irregularities pertaining to a preliminary hearing are waived by a voluntary plea of guilty. (Plasters v. Hoffman, 180 Kan. 559, 305 P. 2d 858; Thomas v. Hand, 184 Kan. 485, 337 P. 2d 651; State v. Daegele, 316, supra; Portis v. State, 195 Kan. 313, 403 P. 2d 959.)
We find no merit to appellant’s contention that he was denied effective assistance of counsel at his arraignments because he was allowed assistance of counsel for only five minutes before his arraignment.
Appellant’s contention that he did not have effective assistance of counsel is positively refuted by the record. In case 6001, at the request of the state, Mr. Robert Bishop, a capable attorney, of Winfield was appointed counsel for both Robins and Coats. After the court informed the defendants of the charges against them the following colloquy took place:
“The Court: You are entitled to subpoena witnesses in your behalf if you desire. Do you understand all your rights and privileges?
“Mr. Robins: Yes, sir.
“Mr. Coats: Yes, sir.
“The Court: Mr. Coats, do you?
“Mr. Coats: Yes, sir.
“The Court: And you do, Mr. Robins?
“Mr. Robins: Yes, sir.
“The Court: Mr. Bishop, have you discussed this matter with these gentlemen?
“Mr. Bishop: I have, your Honor.”
“The Court: Mr. Coats, in case 6001 are you ready to enter a plea?
“Mr. Coats: Yes, sir.
“The Court: Very well, how do you plead to the Information in Case 6001 charging you with burglary in the second degree, guilty or not guilty?
“Mr. Coats: Guilty.
“The Court: And how do you plead to the commission of a larceny in connection therewith, guilty or not guilty?
“Mr. Coats: Guilty.”
In case 6005 Mr. Bishop - was again appointed counsel for Mr. Coats and after the court informed the defendant of the nature of the crime against him the following colloquy took place:
“The Court: You are entitled to subpoena witnesses on your behalf if you desire. Have you discussed tírese matters with your attorney, Mr. Bishop?
“Mr. Coats: Yes, sir.
“The Court: Are you ready at this time to plead to the Information in Case 6005?
“Mr. Coats: Yes, sir.
“The Court: Mr. Robert Victor Coats, are you ready to plead to the Information in Case 6005 charging you with-felonious, wilful and malicious destruction of property in excess of the value of $50?
“Mr. Coats: Yes, sir.
“The Court: How do you plead to the Information charging you with felonious, wilful and malicious destruction of property in excess of value of $50.00, guilty, or not guilty?
“Mr. Coats: I plead guilty, sir.
“The Court: Mr. Coats, do you or your attorney, Mr. Bishop, know of any reason the Court should not now sentence you?
“Mr. Coats: No, sir.
“Mr. Bishop: I don’t.”
A careful examination of the record fails to disclose any substantial justiciable issue of law or fact which would affect the validity of the judgments and sentences in the proceedings before us. The inescapable result is that the trial court was not required to conduct a formal hearing in the presence of the appellant, neither was he required to appoint counsel to assist the appellant. See State v. Burnett, 194 Kan. 645, 400 P. 2d 971; Sanders v. State, 195 Kan. 701, 408 P. 2d 587; Fields v. State, supra; Webb v. State, 195 Kan. 728, 408 P. 2d 662.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a proceeding instituted pursuant to K. S. A. 60-1507, in which the district court of Reno County, Kansas, denied the petitioner’s motion for discharge from the Kansas State Penitentiary. Appeal has been duly perfected.
The disposition of this case turns upon a question of procedure under the foregoing statute. The question is whether the petitioner’s presence is required at the hearing on a motion attacking his sentence where there is a substantial issue of fact as to events in which he participated.
The facts upon which the disposition of this case turns are not in dispute.
The petitioner was originally charged with first degree robbery, second degree burglary and grand larceny, in violation of G. S. 1949 (now K. S. A.) 21-527, 21-520 and 21-524. When the petitioner, an indigent, was called before the city court of Hutchinson, Reno County, Kansas, for a preliminary hearing on the 6th day of June, 1955, he requested the court to appoint counsel for him prior to the commencement of the hearing. This request was denied and the hearing was held with the petitioner conducting cross examination of the state’s witnesses. As a result of this hearing he was bound over for trial to the district court on charges of first degree robbery, second degree burglary and grand larceny.
After the preliminary hearing the district court appointed Robert Upp, an attorney, to represent the petitioner in the criminal proceedings.
On the 6th day of October, 1955, in the district court the state dismissed the grand larceny charge, arraignment was waived, and the petitioner entered a plea of not guilty to each count. The case was tried to a jury, and on the 10th day of October, 1955, the petitioner was found guilty of the charges of first degree robbery and second degree burglary. On the 13th day of October, 1955, the petitioner filed a motion for a new trial, and on the 15th day of October it was overruled.
The journal entry recites that on the 18th day of October, 1955, the petitioner was brought before the court “for sentencing and asked if there was any legal reason why sentence should not be pronounced and no legal reason was given. Thereupon the State introduced evidence showing previous felony convictions of the Defendant, Orville Clyde Brown, as follows: [Listed are the judgment and sentence of five prior felony convictions, all in the state of Oklahoma.]”
Upon this evidence the petitioner was sentenced, for having been previously convicted of three or more felony offenses, under the habitual criminal act (G. S. 1949 [K. S. A.] 21-107a) for a term of thirty years on each count, the sentences to run concurrently.
In his motion to vacate the judgment and sentence the petitioner, among other things, alleges that prior to the date of sentencing on the 18th day of October, 1955, he had no notice whatsoever that the state intended to invoke the provisions of the habitual criminal act.
Prior to the hearing on the petitioner’s motion to vacate the judgment and sentence the trial court appointed Matthew J. Dowd, an attorney, to represent the petitioner, an indigent.
Apparently the trial court was in doubt, after reviewing the files and records in the criminal proceeding, as to whether the petitioner had been given proper notice prior to sentencing under the habitual criminal act. As a result it granted an evidentiary hearing in which it permitted the state to call two witnesses, the former county attorney who prosecuted the criminal case against the petitioner, and Mr. Upp, the attorney appointed to represent the petitioner in the criminal proceeding.
The petitioner was not present at the hearing.
When the motion was called for hearing before the trial court, counsel for the petitioner formally objected to the hearing in the absence of the petitioner. On this point the record shows the following:
“. . . at this time I would like to register a formal objection to proceeding in the absence of the defendant because it is my understanding that the state intends to call at least two witnesses, Mr. John Alden, who was the County Attorney at the time the moving party was tried, and Mr. Robert Upp, who was the defendant’s counsel at the time he was tried. Both of these parties are here to offer testimony on behalf of the state, and what the substance of their testimony is, I do not know at this time, but it will be impossible for me to effectively cross examine either of these gentlemen without the defendant being here to tell me what his side of the story is, because I don’t know the defendant and I wasn’t present at the time, and there is virtually no one here to offer his side of the story as to the facts that existed at the time he was tried and sentenced other than Mr. Upp, and Mr. Upp will, as I understand it, appear as a witness for the state.
“Now I will attempt to cross examine, if the Court wishes to overrule my formal objection, but it will be next to worthless as far as I can see, and further, although we have arrived at a stipulation of facts, there are facts which are still in doubt and still in dispute upon which the moving party, Orville Clyde Brown, wished to offer testimony at this hearing.”
After this argument, and upon inquiry by the court, petitioner’s counsel stated that a fact which was still in doubt and still in dispute was whether the petitioner was given notice prior to sentencing that the state intended to invoke the habitual criminal act. He stated the petitioner wished to offer testimony on this point at the hearing.
The trial court overruled the objection, heard the evidence of the state, and in its memorandum decision found “The evidence clearly shows that the defendant was timely apprised of the proposed invocation of the habitual criminal act upon a conviction.”
Among the conclusions of law made by the trial court in its memorandum decision are the following:
“5. The defendant has failed to sustain the burden of proof on all factual allegations.
“6. The Court conclusively finds that the defendant’s contentions are without merit and that he is not entitled to the relief demanded.”
The petitioner filed a motion for rehearing on the ground that he was not present at the hearing on the 1507 proceeding. This motion was overruled on the 6th day of April, 1965.
Fundamental fairness in judicial procedure requires that the court may impose an enhanced penalty under the habitual criminal act only upon the basis of a supporting judicial determination of the essential facts made after the defendant in the criminal case has been notified and heard upon the issue of his prior convictions. The failure to comply with such procedure is a denial of due process of law and makes the enhanced penalty a legal nullity. This was the holding in United States v. Claudy, 204 F. 2d 624 ( 3rd Cir. 1953), where the court said:
“. . . it is established that even after conviction the due process clause imposes some significant restraint to assure the essential fairness of the procedure by which a judge shall exercise discretion in fixing punishment within permissible limits. Townsend v. Burke, 1948, 334 U. S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690. But cf. Gryger v. Burke, 1948, 334 U. S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683. Such restraint is the more imperative in the present situation where the challenged sentence cannot lawfully be imposed upon the basis of the finding of guilty as charged in the indictment without more. Here there remains after conviction an issue to be tried with facts to be proved in order to elevate the offense to the aggravated class defined and punished by the Habitual Criminal Act.” (p. 628)
This court has said in State v. Woodman, 127 Kan. 166, 272 Pac. 132:
“. . . After conviction, however, and before the allocution the defendant should be timely apprised that a sentence under the act of 1927 [the habitual criminal act] will be demanded against him, so that he may show cause, if he can, why such higher penalty should not be imposed. . . .” (p. 172.)
After quoting the foregoing statement from the Woodman decision, the court said in State v. Messmore, 175 Kan. 354, 264 P. 2d 911:
“The reason for such notice is obvious. The convicted person might be able to successfully refute the evidence of former convictions or the evidence adduced might be in a form inadmissible if challenged by proper objection.” (p. 356.)
The Tenth Circuit Court of Appeals in construing Kansas law has recognized that the determination of the status of the defendant as an habitual criminal is a judicial procedure, and that the defendant is entitled to notice thereof and an opportunity to be heard. (Johnson v. State of Kansas, 284 F. 2d 344, 345 [10th Cir. 1960].) The same court in Browning v. Hand, 284 F. 2d 346 (10th Cir. 1960), said:
. . One convicted of a felony in Kansas is entitled to notice of the hearing held to determine whether he is subject to the provisions of the habitual criminal statute, and due process requires notice. This is, however, a right which can be waived. . . .” (p. 347.)
The penalties which may be invoked under the habitual criminal statute are extremely severe, and those charged are entitled to the protection which the constitution affords when the issue is to be determined. The fundamental requisites of due process, when the statute is to be invoked, are reasonable notice and an opportunity for a full and competent hearing, with the right to the aid of competent counsel.
The fact thus put in issue by the petitioner — whether he received notice that the state intended to invoke the provisions of the habitual criminal act prior to sentencing — is therefore vitally material to the validity of the sentence imposed. This is a substantial issue of fact as to an event in which he participated.
Supreme Court Rule No. 121 (h) (194 Kan. xxvnx) provides:
“(h) Presence of Prisoner. The prisoner should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which he participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.”
It is apparent that the trial court in the exercise of its power of discretion found the claim of the petitioner to be substantial and granted an evidentiary hearing; but it heard only one side of the case, that of the state, and it refused to permit the petitioner to be present over the objection of the petitioner’s counsel. On this point we hold the trial court erred. It should have granted the petitioner a full evidentiary hearing by requiring him to be present at the hearing, before it ascertained the facts placed in issue.
What has heretofore been said is not intended to dilute decisions of this court wherein the defendant in a criminal proceeding convicted of a felony was given sufficient notice that the state intended to seek imposition of sentence under the habitual criminal act, or decisions where it has been held that a defendant waived such notice. (See, State v. Messmore, supra; Sanders v. Hand, 190 Kan. 457, 375 P. 2d 785; Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978; and Thompson v. State, 195 Kan. 318, 403 P. 2d 1009.)
Where the sentencing court in the exercise of its power of discretion has determined that it was necessary to have an evidentiary hearing because the petitioner’s claim was substantial, we hold that it was bound to give the petitioner a full evidentiary hearing and require his presence, because it involved a substantial issue of fact as to events in which he participated.
The order of the lower court is reversed with directions to grant the petitioner a full evidentiary hearing prior to a determination of the substantial issue of fact as to events in which he participated.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order of the district court of Marion County, summarily denying the petitioner’s motion to set aside the sentence imposed on October 29, 1962, upon his plea of guilty to the crimes of second degree burglary and grand larceny. On that date, the district court sentenced him to confinement in the Kansas State Penitentiary for a period of fifteen years pursuant to the Kansas Habitual Criminal Act. (K. S. A. 21-107a.)
On October 5,1962, a warrant was issued out of the county court of Marion charging the petitioner, Clifford LeeRoy Perrin, with burglarizing in the nighttime Wingerd’s IGA Store and Williams Home Oil Company, both in Marion, and unlawfully stealing $100 in lawful money of the United States from the latter place. He was arrested on October 12, 1962, and brought before the judge of the county court of Marion, where he was advised of the charges pending against him and of his right to have a preliminary examination. After being so advised, the petitioner waived his right to a preliminary examination and he was bound over to the district court to stand trial for the crimes of burglary in the nighttime and grand larceny as charged in the complaint and warrant. Bond was fixed in the sum of $5,000, and upon the petitioner’s failure to give bond, he was committed to the jail of Marion County.
An information was filed in the district court by the county attorney, entitled State of Kansas versus Clifford LeeRoy Perrin, Case No. 13,281, charging the petitioner in count one of burglarizing the Wingerd’s IGA Store in the nighttime, and in count two of burglarizing the Williams Home Oil Company and stealing $100 in United States currency therefrom.
On the morning of October 29, 1962, the petitioner was brought before the district court to ascertain whether he had counsel to represent him. The petitioner informed the court he had no attorney and had no funds with which to employ counsel. Upon his request, the district court appointed D. M. Ward, a member of the Marion County Ear, to represent him. The case was continued in order to give counsel an opportunity to confer with the petitioner, and later, but during the afternoon on the same day, the petitioner and his counsel came before the district court for arraignment. Counsel advised the court he had two conferences with petitioner and they were ready to proceed. The petitioner stated he would waive arraignment, but the court required the county attorney to read the information and state in general terms the nature of the charges therein contained. The court inquired of the petitioner and his counsel how he wished to plead and the petitioner stated in open court he was guilty of each count as charged, and that he “just had guilty feeling.” The district court accepted the pleas of guilty and adjudged the petitioner guilty of each felony count alleged against him.
Thereafter, the county attorney moved the court to sentence the petitioner pursuant to the Kansas Habitual Criminal Act (K. S. A. 21-107a), and introduced in evidence a certified copy of petitioner’s conviction on June 6, 1957, in the district court of Washington County, Oklahoma, of burglary in the second degree for which petitioner was sentenced to serve two and a half years in the state penitentiary at McAlester, Oklahoma. The certified record revealed the petitioner’s sentence was suspended, but that on November 8, 1957, grounds for revoking the suspension of the sentence were presented and he was ordered to serve the sentence imposed in the Oklahoma State Penitentiary.
Thereupon, the county attorney presented a certified copy of petitioner’s conviction in the United States District Court for the Northern District of California on February 17, 1960, of the crime of transporting stolen firearms in interstate commerce and that he was committed to the custody of the attorney general for imprisonment for a term of five years. On June 2, 1960, the judgment pronounced against the petitioner was modified when the court found he was a youth offender within the meaning of the Federal Youth Corrections Act (18 U. S. C. Ch. 402), and he was sentenced to the custody of the attorney general for treatment and supervision pursuant to that Act until discharged by the Youth Correction Division of the Board of Parole as provided in Sec. 5017 (c) of the Federal Youth Corrections Act. The certified record also revealed that following his sentence as a federal youth offender, the petitioner was transferred from the Federal Correctional Institution in Lompoc, California, to the Federal Reformatory, El Reno, Oklahoma, on July 13, 1960; that he was released on parole from the latter institution on October 17, 1961, and did not satisfactorily complete the parole inasmuch as a parole violator warrant was lodged against him.
Neither the petitioner nor his counsel made any objection to the certified copies of convictions. The district court found from the records, statements, and evidence that the petitioner had two former convictions of felony which were committed by him and that his present conviction was his third conviction of felony, and, accordingly, adjudged that he be sentenced as an habitual criminal pursuant to the provisions of K. S. A. 21-107a to confinement in the Kansas State Penitentiary for a period of not less than fifteen years.
On October 14, 1964, the petitioner, acting pro se, wrote the judge of the district court of Marion County concerning the validity of the judgment and sentence rendered on October 29, 1962. The letter recited the petitioner’s conviction of burglary and grand larceny and his sentence under the Habitual Criminal Act. It further recited that since being committed, he had spent many hours in the prison legal library and had been in correspondence with several federal agencies, and that:
“From all of this we have established that it is a matter of legal fact, having been ruled on in many cases, both State and Federal, that the Federal Youth Act as a prior conviction, is not applicable towards enhancement of penalty on a later conviction. It has also been established in many Kansas Courts, the latest of an opinion by the Attorney General of Kansas in 1964, that an erroneous sentence may not be corrected by enhancement of the statutory sentence, which denies the court jurisdiction to sentence the defendant consecutively on the two charges in the information which was the courts option at the initial proceeding.
“Now, I do not presume to ask the (court) to act in this matter merely on the strength of my word. I have been urged by my family to allow my attorney to start legal proceedings, but I believe it is to my advantage to simply point out these errors to the court trusting that Your Honor would prefer to adjust the sentence I am now serving voluntarily. I say this because if and when my sentence is corrected I will have to appear before a parole board and I would rather not appear as an antagonist. In addition to having complied a very substantial amount of material to substantiate the above allegations, I have been assured that upon filing the proper motion my Federal Youth Act conviction will be readily ordered inapplicable or null insofar as being used or incorporated into an habitual statute or the enhancement of any sentence therefrom.”
The district court treated the petitioner s letter of October 14, 1964, as a motion filed under K. S. A. 60-1507 to vacate the sentence imposed in Case No. 13,281. The letter was filed and docketed and given Case No. 13,576. On October 30, 1964, the district court prepared written findings of fact and conclusions of law and summarily denied the petitioners motion upon the ground that the files and records in Case No. 13,281 conclusively showed he was entitled to no relief. Counsel was not appointed to represent petitioner in this proceeding. No appeal was taken from that judgment.
The proceedings out of which this appeal arises were commenced by petitioner on January 18, 1965, when he filed a motion pursuant to K. S. A. 60-1507 and Rule No. 121 (194 Kan. xxvn), to vacate the sentence imposed in Case No. 13,281. The motion was in accordance with the form prescribed in Rule No. 121 (e), and was given docket No. 13,608. It alleged that the petitioner was not advised of his rights to a jury; that his court-appointed counsel did not advise him of his rights to appeal to the Supreme Court from his conviction and sentence of October 29, 1962; that the information was fatally defective because it did not allege the proper ownership of the alleged business; that the county attorney “used mental coercion to induce my plea of guilty . . . used my confession (extracted before arraignment without benefit of counsel’s presence) if I had a jury trial.” Further, that he (the county attorney) “would give me 5 to 10 years on both counts to run consecutively and would further file an additional charge of felonious assault with intent to kill and see that I got 10 years consecutively for this crime, because of the seriousness of this mental coercion, I was forced to plead guilty”; that counsel was not appointed to represent him at his preliminary examination, and that no formal written notice was served upon him prior to the imposition of the Habitual Criminal Act.
For his tenth ground, the petitioner alleged the same ground set forth in his letter of October 14, 1964; i. e., that the sentence imposed pursuant to the Federal Youth Corrections Act was not a final conviction and could not be used as a second conviction under the Kansas Habitual Criminal Act (K. S. A. 21-107a), to enhance the penalty of his conviction of October 29, 1962.
Counsel was not appointed to represent the petitioner and on May 3, 1965, the district court considered the motion filed January 18, 1965, and, without making findings of fact and conclusions of law, summarily denied relief. The petitioner timely appealed to this court, and D. M. Ward, who represented him in Case No. 13,281 on October 29, 1962, was appointed to assist him in perfecting his appeal.
It appears from the record the district court summarily denied the petitioner’s motion upon the ground that it was not required to entertain a second or successive motion for relief on his behalf. We think the district court erred in making that disposition of the motion. The instant case is distinguishable from Smith v. State, 195 Kan. 745, 408 P. 2d 647. There, the petitioner filed a motion pursuant to K. S. A. 60-1507 on the form of motion prescribed by Rule No. 121 (e) and alleged as the only ground for relief that the county attorney was unauthorized to file a complaint and prosecute his case in the district court. The motion was denied. Later, he filed a second motion for relief under the statute and on the form of motion prescribed by the rule and alleged additional grounds why his sentence should be vacated. He also alleged in the second motion that the ground stated in his first motion was “frivolous.” This court held that when a prisoner, in answer to question No. 10 of the prescribed form of motion provided in Rule No. 121 (e) alleges a ground or grounds to vacate the sentence, he is presumed to have Hated all of the grounds upon which he is relying, and that when a second or successive motion is filed to vacate the sentence on the form prescribed by the rule, a district court does not err in summarily denying the second motion on the ground that it was “a second or successive motion for relief on behalf of the same prisoner” as provided in Rule No. 121 (d), and constitutes an abuse of the motion remedy.
The district court was justified in treating the petitioner’s letter of October 14, 1964, as a motion to vacate the sentence pursuant to K. S. A. 60-1507. The letter alleged a ground which attacked the validity of the sentence imposed. However, that letter-motion was prepared and mailed to the district court prior to the adoption of Rule No. 121, and before the form of the motion prescribed in subsection (e) was made available to prisoners in the state penitentiary for their use. For this reason we are of the opinion the ends of justice would be served by our holding that the petitioner s motion filed on January 18, 1965, should be set for hearing and findings of fact and conclusions of law be made disposing of its allegations on the merits. It contained additional grounds for relief not alleged in the first motion, and, under the specific facts of this case, we are of the opinion that motion was not a second or successive motion as contemplated by the statute (Sanders v. United States, 373 U. S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068), and does not fall within the rule announced in Smith v. State, supra. In determining the various allegations of the petitioners motion filed January 18, 1965, the district court is not required to re-examine the allegations of paragraph 10 with respect to the use of the Federal Youth Corrections Act sentence as a second previous felony conviction to enhance the penalty under the Kansas Habitual Criminal Act. That point was specifically raised in the petitioner’s first motion and was determined on the merits adversely to his contention. No appeal was taken from that judgment and it became final. The rightness or wrongness of the district court’s decision on that point may not now be inquired into. (K. S. A. 60-1507, Rule No. 121 [d], [1] and [2].)
On reversal, a hearing should be had and findings of fact and conclusions of law be made. We do not say that it will be necessary to produce the petitioner at the hearing to enable him to testify. The statute provides that the motion may be determined “without requiring the production of the prisoner at the hearing.” Not every colorable allegation entitles a prisoner in the penitentiary to a trip to the sentencing court. Neither is the district court compelled to accept all allegations in a motion filed for relief under the statute as presumptively valid, nor accept allegations which are “patently unbelievable.” (Edge v. Wainwright, 347 F. 2d 190, 192.) Flimsy and transparent charges or allegations are insufficient to sustain a justiciable controversy. In Call v. State, 195 Kan. 688, 408 P. 2d 688, it was said:
“We have held in State v. Burnett, 194 Kan. 645, 400 P. 2d 971, that the right to an evidentiary hearing in proceedings brought under K. S. A. 60-1507 does not extend to those instances where the claims advanced are trivial, frivolous or insubstantial. In Webb v. State, 195 Kan. 728, 408 P. 2d 662, we further hold that a sentencing court is vested with discretion in ascertaining whether a claim made under the foregoing statute is substantial before granting an evidentiary hearing thereon and requiring the petitioner’s presence.” (p. 693.)
In passing we note that nowhere in the record does the petitioner name any witnesses or refer to any evidence by which he could substantiate his claims.
Section 60-1507, et seq., follows the language of a federal statute (28 U. S. C. A. § 2255) authorizing postconviction motions to vacate or correct sentences imposed in federal courts, and “it may therefore be said the body of the 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.” (State v. Richardson, 194 Kan. 471, 399 P. 2d 799.)
In considering a motion of a federal prisoner filed pursuant to § 2255, supra, which had been summarily denied by the sentencing court, the Supreme Court of the United States, in Sanders v. United States, supra, said:
“. . . This does not mean that a prisoner can be prevented from testifying in support of a substantial claim where his testimony would be material. However, we think it clear that the sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing. In this connection, the sentencing court might find it useful to appoint counsel to represent the applicant. Cf. Coppedge v. United States, 369 U. S. 438, 446. . . . As we said only last Term:
“ ‘ What has been said is not to imply that a movant [under § 2255] must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner. Whether the petition in the present case can appropriately be disposed of without the presence of the petitioner at the hearing is a question to be resolved in the further proceedings in the District Court.
“ ‘. . .’ Machibroda v. United States, supra, at 495-496. (Footnote omitted.)” (pp. 21, 22.)
The judgment of the district court is reversed and it is directed to proceed in accordance with the views expressed in this opinion.
It is so ordered. | [
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The opinion of the court was delivered by
O’Connor, J.:
Under the provisions of K. S. A. 60-1507, the appellant, Charles R. Hanes, hereinafter referred to as petitioner or Hanes, filed a motion to vacate a conviction and sentence rendered by the district court of Sedgwick county. From the court’s order denying relief petitioner has appealed.
The background of the matter is as follows: On April 7, 1958, petitioner was convicted by a jury of the offenses of forgery and uttering and sentenced to a term in the state penitentiary of not less than twenty years for the crime of forgery and not less than twenty years for the crime of uttering a forged instrument, said sentences to run consecutively. Hanes appealed, and on December 10, 1960, his appeal was dismissed (State v. Hanes, 187 Kan. 382, 357 P. 2d 819) because it had not been duly perfected.
Subsequently, while confined in the state penitentiary, petitioner relates that he filed in the district court of Leavenworth county a petition for writ of habeas corpus, which was denied. He appealed this decision, and on May 29, 1961, the appeal was dismissed for failure of petitioner’s counsel to file an abstract or brief. Thereafter, Hanes filed a petition for writ of habeas corpus in the federal district court. That court also denied the writ on the grounds Hanes had failed to exhaust all remedies under Kansas statutes. In October 1961 Hanes filed a writ of error coram nobis in the district court of Sedgwick county, and this was denied because of lack of jurisdiction. Throughout these post trial matters Hanes was represented by a total of five attorneys.
Petitioner, by his presently retained counsel, filed his motion to vacate and supplement thereto on October 28 and November 19, 1964, respectively, alleging, in substance, (1) illegal arrest, (2) illegal search and seizure, (3) erroneous admission of evidence, (4) the crimes of which he was convicted were committed by a fellow inmate, Delphos L. Snyder, and (5) subsequent to conviction he subjected himself to a polygraph examination, the results of which showed he was innocent. In considering the motion, the trial court stated:
“The Court, after examination of the aforesaid Motions, and the files and records of the case, including the transcript of the trial, finds conclusively that the petitioner is entitled to no relief except on the allegations . . . [that the crimes of which petitioner was convicted were committed by Snyder] . . . which allegations the court finds raise a substantial claim and substantial question of fact requiring the testimony of the petitioner and one Delphos L. Snyder. . . .”
The court ordered that the petitioner and Snyder be returned to Sedgwick county for an evidentiary hearing on the fact question heretofore mentioned. On November 19 the court heard the testimony of Hanes, Snyder and Earl Clarkson, petitioner’s counsel at his trial. The court concluded that the petitioner was entitled to no relief on this point, and Hanes now makes no complaint of the trial court’s finding. In overruling Hanes’ motion, the court found that the “Motion and the files and records of the case conclusively show that the petitioner is entitled to no relief on all the other matters contained in his Motion and Supplement to Motion.”
In his appeal petitioner asserts that the trial court erred in three respects, namely, refusing to determine the constitutionality of Hanes’ arrest, refusing to consider whether or not Hanes had been the victim of an illegal search and seizure, and refusing to determine any of the other issues raised by the motion to vacate other than whether or not Snyder had committed the crime of which Hanes was convicted. The all-encompassing premise of Hanes’ argument is that none of the grounds set forth in his motion to vacate has been determined by an appellate court, since every method he used to obtain a review of his case has been denied upon various jurisdictional or procedural grounds.
The state vigorously contends that the trial court correctly refused to determine the other matters raised in Hanes’ motion for the reason that under Rule No. 121 (c) (4) of the Supreme Court (194 Kan. xxvh) a 60-1507 proceeding cannot ordinarily be used as a substitute for a direct appeal involving mere trial errors, or as a substitute for a second appeal. While acknowledging that the state’s contention has considerable merit, we will briefly consider each of the points of error raised by the petitioner, for in doing so we have no difficulty in concluding that the allegations of the motion, even if true, fail to constitute sufficient legal grounds for vacating the petitioner’s judgment and sentence.
Hanes first asserts his imprisonment is illegal in that he was arrested without a warrant approximately two weeks after the alleged crimes were perpetrated and the officer had no probable cause to make the arrest. Conceding for the sake of argument the absence of probable cause, the validity of petitioner’s sentence is unaffected by reason thereof. The law is well settled that jurisdiction of a court to try a person accused of a crime is not divested by the fact he may have been unlawfully arrested. (Call v. State, 195 Kan. 688, 408 P. 2d 668; State v. Cook, 194 Kan. 495, 399 P. 2d 835.) Furthermore, a 60-1507 proceeding is intended to provide in the sentencing court a remedy commensurate with that which had previously been available by habeas corpus. (Rule No. 121(a) of the Supreme Court, 194 Kan. xxvn.) A habeas corpus proceeding permits inquiry into the legality of a custody order only when the authority and jurisdiction of the court to issue such order is questioned. For the reasons above stated, petitioner’s allegations on this point do not challenge the jurisdiction of the trial court and, therefore, form no basis for relief in a 60-1507 proceeding. (See McGee v. Crouse, 190 Kan. 615, 376 P. 2d 792, and Uhock v. Hand, 182 Kan. 419, 320 P. 2d 794.)
The federal courts, in considering the federal counterpart (28 U. S. C. § 2255) of our 60-1507 statute, have held that illegal arrest is not a ground for vacating a sentence. In Roddy v. United States, 296 F. 2d 9 (10th Cir.), it was stated:
“Assumming that the failure to take the appellant before the United States Commissioner constituted an illegal arrest, an illegal arrest does not void a conviction, nor is it grounds for a collateral attack upon a judgment of conviction.” (p. 10.)
For statements and decisions of like import see Kristiansand v. United States, 319 F. 2d 416 (5th Cir.); United States v. Koptik, 300 F. 2d 19 (7th Cir.), cert. den. 370 U. S. 957, 8 L. Ed. 2d 823, 82 S. Ct. 1609; Plummer v. United States, C. A. D. C., 260 F. 2d 729.
Hanes next contends that he was the victim of an illegal search and seizure in that after arrest one of the officers reached into petitioner s pocket and removed certain articles which were later used as evidence regarding identification in the state’s case in chief. Assuming only for the sake of argument that such evidence was illegally obtained, admission thereof was not error in this state prior to Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A. L. R. 2d 933 (June 19,1961), reh. den. 368 U. S. 871, 7 L. Ed. 2d 72, 82 S. Ct. 23 (October 9, 1961). The former rule in this state was that evidence otherwise competent was not rendered inadmissible because it was obtained by unlawful search and seizure. Cases adhering to the rule are collected in Hatcher’s Kansas Digest, Rev. Ed., Criminal Law, §§ 265, 266 and West Kansas Digest, Criminal Law, §§ 394, 395. Neither was the admission of such evidence ground for collateral attack in a habeas corpus proceeding. (Hayes v. Hudspeth, 169 Kan. 248, 217 P. 2d 904, cert. den. 340 U. S. 835, 95 L. Ed. 613, 71 S. Ct. 17.)
In Linkletter v. Walker, 381 U. S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731, decided June 7, 1965, the United States Supreme Court held that the ruling of the Mapp case, requiring exclusion in state criminal trials of evidence seized in violation of the search and seizure provisions of the fourth amendment, does not operate retrospectively upon cases finally decided prior to the date of judgment in the Mapp case. Petitioner’s appeal to this court in the instant case was finally dismissed on December 10, 1960 (State v. Hanes, supra); therefore, the Mapp rule has no application, and petitioner cannot now complain his constitutional rights were violated by the admission of such evidence.
The other allegations of petitioner’s motion concern matters not properly justiciable in a 60-1507 proceeding. Hanes’ contention that a police officer was erroneously permitted to testify as an expert relates solely to an alleged trial error which could have been raised in a direct appeal, properly perfected. In urging the matter, petitioner is merely attempting to convert this proceeding into a substitute for a second appeal, which is expressly forbidden by the provisions of Rule No. 121 (c) (4), supra. (Miles v. State, 195 Kan. 516, 407 P. 2d 507.) Petitioner’s remaining contention that the trial court failed to consider his allegations concerning the results of a lie detector test has no merit. Under our decisions, an assertion of innocence by one convicted of a crime may not be considered in a habeas corpus proceeding. (Dexter v. Crouse, 192 Kan. 151, 386 P. 2d 263; Wilson v. Hand, 181 Kan. 483, 311 P. 2d 1009, cert. den. 355 U. S. 916, 2 L. Ed. 2d 276, 78 S. Ct. 346; Martin v. Edmondson, 176 Kan. 374, 270 P. 2d 791.) The rule applies with equal force to a 60-1507 proceeding.
Viewing the record in its entirety, and for the reasons herein stated, we are of the opinion the trial court properly concluded the petitioner was entitled to no relief. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, George A. Fountaine, has appealed from the judgment and sentence imposed against him pursuant to the provisions of the Habitual Criminal Act.
On April 27, 1960, Fountaine appeared before the District Court of Atchison County, Kansas, to answer charges of second-deg~ee burglary and larceny. Mr. Robert D. Caplinger, an Atchison attorney, was appointed counsel for the defendant. Upon arraignment, Fountaine entered pleas of guilty to both charges. Thereupon, the state introduced evidence of two alleged prior convictions, and the defendant was sentenced to a term of thirty years in the Kansas State Penitentiary as a third-time offender.
From that judgment and sentence, the defendant, pro se, per fected an appeal. That appeal was heard and determined by this court and our opinion affirming the trial court is reported in State v. Fountaine, 188 Kan. 190, 360 P. 2d 1119. Those appellate proceedings predated Rule No. 56 (now Prefatory Rule No. 1 [f], 194 Kan. xn) promulgated April 16, 1963, and appellate counsel was not provided the defendant at that time.
On October 24, 1964, the defendant filed a motion in this court asking that our mandate be recalled and the appeal reinstated, the basis of his motion being that he was not furnished counsel on the appeal. This court sustained the defendant’s motion, in light of Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814, and reinstated the appeal. Mr. John S. May, a practicing attorney of Atchison, Kansas, was thereafter appointed to represent the defendant and has acted as his counsel throughout the present appeal.
The current appeal raises three points, none of which were presented before: (1) The sentence of thirty years is void because one of the two prior convictions relied on was for violation of the Federal Juvenile Delinquency Act; (2) the defendant was not provided with counsel at every stage of the proceedings; and (3) the defendant was not given notice prior to arraignment and sentencing that the Habitual Criminal Act was to be considered. We will consider the points out of order, and turn first to points (2) and (3).
The defendant’s complaint that he was not furnished counsel at every stage of the proceedings boils down to this: That he was not represented by counsel at his preliminary examination. This complaint is without substance. We have declared many times that the preliminary examination, under Kansas procedure, is not a critical phase in the accusatory process and that failure to appoint counsel to represent an accused at that time does not infringe upon his constitutional rights or constitute reversible error, absent a showing that he was prejudiced thereby. (State v. Richardson, 194 Kan. 471, 399 P. 2d 799; Cooper v. State, 196 Kan. 421, 411 P. 2d 652, and cases cited therein.)
We proceed next to the claim that the defendant was not notified of the state’s intention to invoke the provisions of the Habitual Criminal Act (K. S. A. 21-107a). There is nothing in the record to indicate that the state gave Fountaine any notice prior to his arraignment. However, counsel for the state points out that the trial court explained the provisions of 21-107a, supra, to the defendant just before his arraignment and maintains that such advice satisfied the requirements of notice.
We need not decide whether the explanation given defendant by the court can be equated with notice that the state would request sentence under the Habitual Criminal Act, for the defendant is in no position at this time to complain of insufficient or inadequate notice. Fountaine was present and represented by counsel when sentence was imposed and neither he nor his counsel objected to the state’s offer of proof. Neither did the defendant claim surprise, nor aslc for a continuance, nor seek further time to meet and refute the state’s evidence. Although an accused is entitled to reasonable notice before sentence is pronounced under the Habitual Criminal Act, this is a right which may be waived. (Browning v. Hand, 10 Cir. [1960], 284 F. 2d 346, 347.) Under the circumstances shown to exist in this case, the defendant may not now assert that he was deprived of an opportunity to be heard. The time to complain was then, not now. (Kelly v. State, 196 Kan. 428, 431, 411 P. 2d 611; Chance v. State, 195 Kan. 711, 408 P. 2d 677.)
The issue of gravest concern is raised by defendant’s first point: That the trial court, in imposing sentence under the Habitual Criminal Act, used as one of two prior convictions, a 1942 adjudication of juvenile delinquency under the Federal Juvenile Delinquency Act. Before discussing this issue in depth, we pause to say that the journal entry of conviction contains no reference whatever to such an adjudication but contains, instead, a finding that the defendant was convicted in 1942 of violating the Dyer Act and was confined in the Federal Reformatory at Chillicothe, Ohio.
Such was the state of the record when the first appeal was heard by us, and our decision in that appeal was rendered on the assumption that the defendant had actually been convicted in 1942 of violating the Dyer Act. However, it conclusively appears from the record which is now before us, and it is now conceded by the state, that in 1942 Fountaine had pleaded guilty of “Unlawfully committing offense which rendered him guilty of violation of Federal Juvenile Delinquency Act,” and that he was thereupon “committed to the custody of the Attorney General for imprisonment in an institution to be designated by the Attorney General or his authorized representative for the period of three (3) tears.”
Thus, the question before us now is whether the defendant’s plea of guilty of a violation of the Federal Juvenile Delinquency Act, and his commitment thereon, can be said to constitute a conviction of felony within the purview of the Kansas Habitual Criminal Act. Pertinent provisions of the federal act (18 U. S. C. A. §§ 5031-5037) are as follows:
“§ 5031. For the purposes of this chapter a ‘juvenile’ is a person who has not attained his eighteenth birthday, and ‘juvenile delinquency’ is the violation of a law of the United States committed by a juvenile and not punishable by death or life imprisonment. June 25, 1948, c. 645, 62 Stat. 857.
Ҥ 5032. A juvenile alleged to have committed one or more acts in violation of a law of the United States not punishable by death or life imprisonment, and not surrendered to the authorities of a state, shall be proceeded against as a juvenile delinquent if he consents to such procedure, unless the Attorney General, in his discretion, has expressly directed otherwise.
“In such event the juvenile shall be proceeded against by information and no criminal prosecution shall be instituted for the alleged violation. June 25, 1948, c. 645, 62 Stat. 857.
Ҥ 5033. District Courts of the United States shall have jurisdiction of proceedings against juvenile delinquents. For such purposes, the court may be convened at any time and place within the district, in chambers or otherwise. The proceeding shall be without a jury. The consent required to be given by the juvenile shall be given by him in writing before a Judge of the District Court of the United States having cognizance of the alleged violation, who shall fully apprise the juvenile of his rights and of the consequences of such consent. Such consent shall be deemed a waiver of a trial by jury. June 25, 1948, c. 645, 62 Stat. 857.
Ҥ 5034. If the court finds a juvenile to be a delinquent, it may place him on probation for a period not exceeding his minority, or commit him to the custody of the Attorney General for a like period.
“Such commitment shall not exceed the term which might have been imposed had he been tried and convicted of the alleged violation.
“The Attorney General may designate any public or private agency or foster home for the custody, care, subsistence, education, and training of the juvenile during the period for which he was committed. . . .”
Several federal courts have defined the nature of proceedings initiated under this act and the status of those who have been adjudged juvenile delinquents within its provisions. Invariably, the courts which have considered those questions have determined that an adjudication of delinquency under the act does not amount to a conviction of a crime, but that the proceedings result only in an adjudication of a status to which no criminal stigma is attached. (United States v. Flowers, D. C. W. D. Tenn. 1963, 227 F. Supp. 1014; United States v. Morales, D. C. D. Mont. 1964, 233 F. Supp. 160; United States v. Fotto, D. C. S. D. N. Y. 1952, 103 F. Supp. 430.)
In Fagerstrom v. United States, 8 Cir. (1963), 311 F. 2d 717, the court said:
"To be adjudged a juvenile delinquent and committed to the custody of the Attorney General under the Juvenile Delinquency Act, is not to be convicted of or sentenced for a crime. . . . The very purpose of the Act is to avoid the prosecution of juveniles as criminals. . . .” (p. 720.)
This construction of the act has been applied to varying factual situations. In United States v. Sprouse, D. C. N. D. Fla. 1956, 145 F. Supp. 292, the court held that the Federal Escape Act did not apply to a person committed to an institution under the Juvenile Delinquency Act. In the opinion, it was said:
“. . . Under the Juvenile Delinquency Act a person entitled to be proceeded against under said Act is not charged with or convicted of an offense, but is proceeded against as a juvenile delinquent for the violation of some ‘law of the United States.’ The conviction is not a crime as defined in 18 U. S. C. § 1, and the juvenile, after conviction, does not bear the stigma of a criminal or lose any of his civil rights. . . .” (p. 294.)
In Borders v. United States, 5 Cir. (1958), 256 F. 2d 458, the court held that a proceeding under the Federal Juvenile Delinquency Act was not a criminal action and that the government was not required to establish criminal capacity on tibe part of one charged thereunder. A similar holding is found in United States v. Morales, supra, where it was said that the federal rules of criminal procedure are not applicable to actions brought under the act so far as those rules are inconsistent with the act.
The rule was considered in a slightly different context in Cotton v. United States, 10 Cir. (1966), 355 F. 2d 480, where the court held that an adjudication of delinquency and commitment under the Juvenile Delinquency Act is not a conviction of or sentence for crime and that the same is not admissible as impeaching evidence in a later prosecution.
The rationale of the federal decisions is consonant with modern concepts of dealing with youthful offenders. We think it generally accepted by present-day society, as well as by knowledgeable penalogists, that offenders of immature years should not be categorized and treated as felons with all the odium and disgrace which such a classification entails. The philosophy which permeates the many juvenile codes enacted throughout this country is that the state, in its treatment, care, training and discipline of juvenile offenders, acts in its capacity as parens patriae for the welfare and in the best interests of young malefactors, as well as in the publics behalf. (In re Turner, 94 Kan. 115, 145 Pac. 871; State v. Dubray, 121 Kan. 886, 250 Pac. 316.)
Kansas long has been in the mainstream of the national trend which distinguishes juvenile delinquents from seasoned criminals. In 1905 its first juvenile court act was adopted (L. 1905, ch. 190). That act provided, among other matters, that . . in no case shall any proceeding, order or judgment of the juvenile court, in cases coming within the purview of this act, be deemed or held to import a criminal act on the part of any child; but all proceedings, orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state.” This provision, in substance, has remained in the act from its inception and is now an integral part of K. S. A. 38-801. Similar provisions are found in the juvenile codes of many of our sister states.
Although the Federal Juvenile Delinquency Act does not contain the above provision found in our statute, it is clear that federal courts have construed the federal act in harmony with our own. We agree with that interpretation for it coincides with the design and objectives of the Juvenile Code of this state.
Rut it is argued by the state that since the Attorney General may, in his discretion, order that a juvenile delinquent be confined in a penal institution, an adjudication of delinquency under the federal act is encompassed within the meaning of K. S. A. 21-107a, which reads in pertinent part:
“Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction; and if convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years. . . .” (Emphasis supplied.)
Cases are cited where juvenile delinquents have been committed by the Attorney General to the Lewisburg Penitentiary (Suarez v. Wilkinson, D. C. M. D. Pa. 1955, 133 F. Supp. 38; United States v. McCoy, D. C. M. D. Pa. 1957, 150 F. Supp. 237) and to the penitentiary at Terre Haute (Sonnenberg v. Markley, 7 Cir. [1961], 289 F. 2d 126; Arkadiele v. Markley, D. C. S. D. Ind. 1960, 186 F. Supp. 586).
The state therefore takes the position that a juvenile delinquent stands convicted of a felony because the Attorney General may, at his option, place him in a penal institution. This argument, however, overlooks the plain statutory injunction that where a juvenile consents to be proceeded against under the Juvenile Delinquency Act “no criminal prosecution shall be instituted for the alleged violation.” The state’s argument likewise ignores the beneficent purpose which inheres in statutes of this character: to reclaim and rehabilitate youthful offenders without subjecting them to the baleful influence of hardened criminals or branding them with the opprobrium which follows conviction of crime.
Whether the Attorney General designates a public agency, or a private agency, or a foster home “for the custody, care, subsistence, education, and training” of a delinquent youth, the objective of the Juvenile Delinquency Act remains the same, and an adjudication thereunder does not impart criminality. A persuasive precedent is found in a recent California case, In re Keller, 232 C. A. 2d 520, 42 Cal. Rptr. 921, where it was contended that commitment of a nineteen-year-old youth to the California Youth Authority, after a conviction of robbery, constituted a prior conviction within the purview of the California Habitual Criminal Act. This contention was rejected even though Keller had been administratively transferred by the Youth Authority to San Quentin prison, as the California statute permits. In disposing of the state’s contention, the court said:
“Thus we see that applicant was placed in San Quentin Prison by the California Youth Authority as a means of accomplishing the purposes of the Youth Authority Act, to-wit, training and treatment directed towards his rehabilitation . . .
“A minor committed to the California Youth Authority does not receive a sentence of imprisonment nor does he serve a term in a state prison as is required under section 644 of the Penal Code, to constitute a prior conviction thereunder. (People v. Lockwood, 146 Cal. App. 2d 189 [303 P. 2d 621].) The minor so committed remains under the control of the California Youth Authority ‘. . . so long as in its judgment such control is necessary for the protection of the public.’ ” (pp. 525, 526.)
A determination by this court that a judgment of delinquency under the Federal Juvenile Delinquency Act is the equivalent of a conviction of a felony would not only violate the spirit of the federal statute, as interpreted by federal courts, but would also contravene the letter and spirit of our own statutes and judicial pronouncements. K. S. A. 62-104 defines felony as "... an offense punishable by death or confinement and hard labor in the penitentiary.” In State v. Dubray, supra, we held that a district corut lacked jurisdiction to sentence a juvenile offender to the reformatory even though his case had been referred to that court for trial in accordance with existing statutes.
The rationale underlying the Dubray decision, and permeating our Juvenile Code as well, is that offenses committed by juveniles are not punishable by penitentiary sentences. This salutory principle is just as applicable when a youthful miscreant has been adjudged a delinquent under the federal statute as when he has been so adjudged under Kansas law.
We conclude that the adjudication of delinquency against this defendant under the Federal Juvenile Delinquency Act does not amount to a prior conviction of a felony as intended by the Habitual Criminal Act of this state and that it cannot be used to enhance the penalty which may be imposed against the defendant.
Our conclusion does not require reversal of the judgment of the court below, for the error may be corrected by the imposition of a legal sentence. (State v. Woodbury, 132 Kan. 22, 294 Pac. 928; State v. Ricks, 173 Kan. 660, 250 P. 2d 773; Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837; State v. Tague, 188 Kan. 462, 363 P. 2d 454.) Accordingly, this case is remanded with directions that the sentence be vacated and set aside, and that the defendant be re-sentenced in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an -appeal from an order of the district court of Sedgwick county denying appellant’s motion, filed under the provisions of K. S. A. 60-1507, to vacate a judgment and sentence. Hereinafter appellant will be referred to as petitioner or Gladen.
Since the facts upon which the disposition of this case turns are not disputed, only those required to dispose of the appeal will be related.
On January 7, 1953, Bernard T. Gladen pleaded guilty in division No. 4 of the above-mentioned court to the charge of second degree burglary and larceny and was placed on probation by the court. Thereafter, on September 6, 1956, he entered a plea of guilty to the charge of second degree robbery in division No. 5 of said court and was sentenced to the state penitentiary, from which institution he was subsequently paroled. He was represented by counsel at the time of bis pleas in both cases. No appeal was taken from either conviction.
On October 9, 1961, Gladen, with his counsel, appeared before division No. 6 of the same court and pleaded guilty to a charge of second degree burglary. After introduction by the state of his two prior felony convictions, petitioner was sentenced under the habitual criminal statute (G. S. 1949, 21-107a, now K. S. A. 21-107a) to the state penitentiary for a period of not less than fifteen years.
Petitioner commenced this action by filing pro se his motion to vacate the latter judgment and sentence. He attacked such sentence on two grounds: first, that the convictions used by die state in invoking the habitual criminal act were not “completed” [final adjudications] and, therefore, could not be used to enhance his sentence; second, that the imposition of the act deprived him of equal protection and due process of law under the fourteenth amendment to the United States Constitution.
On June 18, 1965, the trial court held a hearing on petitioner’s motion. After reviewing the files and examining the motion, the court found that since no substantial questions of law or triable issues of fact were presented, neither Gladen’s presence at the hearing nor appointment of counsel to represent him was necessary; that his sentence was proper; and that the motion to vacate was without merit. The motion was thereupon overruled.
Gladen subsequently filed his notice of appeal. Upon proper showing, he was permitted to proceed in forma pauperis and present counsel was appointed.
On appeal, petitioner raises the same two points urged in his motion before the trial court. Counsel, with commendable candor, concedes, and we agree, that Gladen’s first point relating to the finality of the prior convictions is utterly devoid of merit; therefore, we will give attention only to the question presented as the second ground of petitioner’s motion.
The essence of Gladen’s contention is that while the habitual criminal act (K. S. A. 21-107a) is constitutional on its face, the manner in which it is administered renders it unconstitutional as being repugnant to the due process and equal protection clauses of the fourteenth amendment to the United States Constitution.
We note that the constitutionality of the act as it appeared in the Laws of 1927, chapter 191, section 1, was attacked in State v. Woodman, 127 Kan. 166, 272 Pac. 132, on the ground of prescribing different punishment for different persons committing the same offense, and the law was upheld. Numerous cases in which the act has been challenged and its constitutionality sustained may be found in 2 Hatcher s Digest, Criminal Law, § 359, and 4 West Kansas Digest, Criminal Law, § 1201.
K. S. A. 21-107a provides as follows:
“Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction; and if convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.”
Ry the wording of the first sentence it becomes the duty of the court to assess the additional penalties, but the second sentence specifically limits imposition to those cases where the court shall find as a fact the former felony convictions.
Is is Gladen’s contention that by the use of the terms “every person” and “shall be” the legislature contemplated the statute was to be utilized as a matter of course in every case when an habitual offender, as defined by the act, is sentenced; whereas, in actual practice the act is used only at the discretion of the county attorney. Petitioner points out that two felons, each with identical records of prior convictions, may receive different sentences, depending upon whether or not the county attorney requests that the provisions of the act be invoked and introduces evidence from which the court may make the necessary findings. Gladen contends that such arbitrary and deliberate application of the provisions renders the act unconstitutional.
Basically, the identical question was raised and fully considered in In re Skinner, 136 Kan. 879, 18 P. 2d 154. There, the petitioner alleged that judges often fail to make findings of prior convictions when they know, from the admissions of the defendants, or other competent evidence, of such previous convictions, and punishment is assessed without the added penalty. Numerous affidavits were introduced in evidence to support the petitioner’s allegations of discrimination. In finding the petitioner’s allegations were insufficient, the court said:
“The exercise of reasonable judicial discretion which results in a discrimination in the application of a law to those of the same class does not necessarily or generally render the law unconstitutional as depriving one of the equal protection of the law.
“The omission or failure of trial judges to make findings of prior conviction or convictions of other defendants under the provisions of the habitual-criminal act (R. S. 1931 Supp. 21-107a) does not in and of itself and without a showing of the discrimination being illegal by reason of its being willful, arbitrary, designed, deliberate, intentional or by concerted action, deprive one in whose case such finding was made of the equal protection of the law or render the law unconstitutional as being in violation of the fourteenth amendment of the United States constitution.” (Syl. f f 1 and 2.)
This court reaffirmed its holding in the Skinner case in Cochran v. Simpson, 143 Kan. 273, 53 P. 2d 502, where the petitioner urged the habitual criminal act denies equal protection to all offenders in that it allows the exercise of discretion and discrimination between offenders, in violation of the fourteenth amendment to the United States Constitution.
The use of discretion in invoking the provisions of an habitual criminal act was considered by the Supreme Court of the United States in Oyler v. Boles, 368 U. S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). There, the petitioners were sentenced to life imprisonment under the West Virginia statute which provided for a mandatory life sentence upon the third conviction “of a crime punishable by confinement in a penitentiary.” The increased penalty was to be invoked by an information filed by the prosecuting attorney “immediately upon conviction and before sentence.” Petitioners contended that the statute imposed a mandatory duty on the prosecuting authorities to seek the more severe penalty against all persons coming within the statutory standards, but that it was done only in a minority of cases. The court noted that no allegation was made that the failure to proceed against other three-time offenders was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons, and that the allegations set out no more than a failure to prosecute others because of a lack of knowledge of their prior offenses, which did not deny equal protection under the fourteenth amendment. The court further stated:
“Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, supra [213 Ore. 619, 325 P. 2d 794 (1958)]; cf. Snowden v. Hughes, 321 U. S. 1, [88 L. Ed. 497, 64 S. Ct. 397] (1944); Yick Wo v. Hopkins, 118 U. S. 356 [30 L. Ed. 220, 6 S. Ct. 1064] (1886) (by implication).” (p. 456.)
Although factually distinguishable, the rationale of the Oyler decision was applied in Moss v. Hornig, 314 F. 2d 89 (1963), which was an action brought under the civil rights act by a store proprietor to enjoin a state court prosecution charging violation of the Sunday closing law. Moss alleged an intentional and purposeful discrimination against him as an individual. Testimony was introduced showing that only two persons had been prosecuted in the entire state circuit during a one-year period despite the fact the prosecutor knew of other stores remaining open and yet failed to prosecute the individuals involved. The court, in holding that such facts were insufficient to constitute purposeful discrimination, said:
“Mere failure to prosecute other offenders is no basis for a finding of denial of equal protection. See United States v. Rickenbacker, 309 F. 2d 462 (2 Cir. 1962). To show that unequal administration of a state statute offends the equal protection clause one must show an intentional or purposeful discrimination. Snowden v. Hughes, 321 U. S. 1, 8, 64 S. Ct. 397 (1944).” (p. 92.)
In examining Gladen’s motion, we have nothing other than die naked allegation that being sentenced under the habitual criminal act deprived him of equal protection and due process. Numerous statements in his brief about what may or may not have happened to other felons with prior convictions, even if properly before us, are insufficient, in light of the foregoing decisions, to render the statute, as administered, unconstitutional. There is a presumption that a public official will act fairly, reasonably and impartially in the performance of the duties of his office. Lyerla v. Lyerla, 195 Kan. 259, 403 P. 2d 989; Sutherland v. Ferguson, 194 Kan. 35, 397 P. 2d 335; State v. Emory, 193 Kan. 52, 391 P. 2d 1013, cert den. 379 U. S. 906, 13 L. Ed. 2d 179, 85 S. Ct. 200.) Petitioner frankly concedes that his sentence pursuant to the act was not imposed on him through any concerted action of the prosecuting officials; moreover, he makes no allegations of illegal discrimination by reason of willful, arbitrary, designed, deliberate, or intentional action on the part of said officials.
Although Gladen asserts the statute also violates the due process clause, he advances no new argument, nor does he cite authority to support his position.
We adhere to our holding in Skinner, and therefore conclude that petitioner has failed to show the habitual criminal act, as administered, violates the due process and equal protection clauses of the fourteenth amendment to the federal constitution. The trial court correctly denied petitioner’s motion, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Appellant was convicted by a jury of the offense of grand larceny, his posttrial motions were overruled, he was sentenced under the habitual criminal act and he appeals.
The information upon which this prosecution is based charged appellant, referred to hereinafter as the defendant, with the theft of a television set of a value of more than $50.00, belonging to the Crupper Furniture and Appliance Company, R. F. D. 2, Hutchinson.
Evidence for the prosecution revealed the following: The Crupper Furniture and Appliance Company is owned by a copartnership, Lee Crupper being one of the co-owners. It has a warehouse which is maintained separately and apart from the retail sales establishment. Customers do not go into the warehouse unless accompanied by an employee as they have no business there. On November 12, 1964, at about noon a Mr. Rickman, a salesman for the Crupper Furniture and Appliance Company, went to the warehouse. He further testified:
“A. Well, I went over to the warehouse to get a television set out to bring over to the sales floor, and on the way over I noticed a television set in a car, and as I entered into the warehouse, not knowing whose car, but the back door was open in it, the television set was in the front seat, the back door stood open and I closed the back door on the vehicle as I went by and walked into the warehouse and I met the defendant coming out of the door with a television set in his hand. I asked him where he was going and he said, I work here, and I told him no, he didn’t work there, to put that one down and he put it down, and made a run for his car, grabbed the one in the front seat and started back to the warehouse which I made him lay it down and he made a run to get away in his car and I took his keys away from him and held him till I could call Mr. Crupper.”
Mr. Rickman detained the defendant and called Mr. Crupper. Rickman remained with the defendant until Mr. Crupper arrived. The box containing the television set which had been in defendant’s automobile lay on the ground next to the automobile. Mr. Crupper talked with the defendant and further testified as follows:
“A. Well I conversed with the man, I asked him what he was about and he said something about turning him in and I says well I had to because of other businesses and such we couldn’t let him go free and he said he was under a doctor’s care and such, and I said well I couldn’t help that was someone else’s decision and I just couldn’t do it, couldn’t let him go free, so we called the sheriff.”
Mr. Crupper stayed with defendant until the marshal from Haven arrived and thereafter a deputy sheriff, who took defendant into custody. The box containing the television set remained on the ground near the automobile until it was removed by the deputy sheriff. The deputy sheriff tagged both the box and the television set and marked his initials on both items, and he identified the television set and the box offered in evidence at the trial as being the same of which he took possession upon defendant’s arrest. The wholesale price of the television set was $99.95 and the retail price was $139.95. About a month prior to the occasion in question Mr. Crupper had seen defendant at the warehouse, right after the noon hour, concerning which he testified over objection as follows:
“A. Well, as I say, I had been in Wichita sometime and come back to the place of business that day and was working on the floor, and a gentleman wanted some merchandise I thought was in the warehouse, I might have in the warehouse he wanted, I walked over, the man did not, he stayed in the place, I walked over and the defendant was there carrying two small televisions which were in the eleven inch class, he was close to the door, and I asked him what he was doing, he said he worked there, I probably should have known but didn’t because I was out of town, I thought they might have hired him. I introduced myself to him, the man shook hands with me immediately, I knew he wasn’t a worker, and I say that because it wasn’t a good grip.
“He started to light a cigarette and I said, we are not allowed to smoke in the warehouse and he said I’ll set these down and step out and I went to look around to see if I could find what I had wanted and he said, could he help me find something and I said, no, I known this warehouse pretty good. I left him there, I went back over to the place and as I went back to the place it wasn’t a true employment, I mean it didn’t ring true, something was wrong, and I don’t know what it was, I walked back in and I started to wait on this customer and excused myself, went back over at that time and he was in his car leaving. I got his license number, went back in to see if the televisions were in the stack, they wasn’t sitting in front of the door where he placed them, went back and I couldn’t at that time determine if he had taken anything. One of the salesmen, I was close to the door and I said, this is some time expired of course, and I said let’s give — .
“Mr. Snyder: Just a minute now I am going to object to any conversation outside of the defendant’s presence.
“The Court: Sustained.
“Mr. Rome: You can’t unless the defendant was present.
“A. All right, I jumped in a car with another man and we gave chase, we couldn’t catch him, we followed, went plumb up to Main Street and couldn’t find him so I got and thought it was necessary, I didn’t have proof of anything, and I thought it was necessary to check this car out, we did this, we found out who it belonged to, the car, by the license number. We took no action because there was no proof of action, and this is why Mr. Rickman made the statement he made, I’ve got your man, when he called me.
“Q. Were the two television sets later turned up missing?
“A. No, those televisions I do not know if they were missing or not, I have no way of telling.
“Q. Okay, I believe that is all.”
Defendant offered no evidence. His principal challenge here is to the sufficiency of the evidence against him as to the possession or control of the television set, essential to constitute larceny, and as to the identity of the particular property allegedly stolen. Neither complaint has merit. We deal with the latter first. Defendant was charged with and convicted of the theft of the particular television set which was first seen in the front seat of his automobile. From the moment of its initial observation there by Mr. Rickman, the whereabouts and custody of this particular set were shown right up to the time of its receipt in evidence at the trial, thus directly connecting it to defendant. We turn now to the question of the taking. Defend ant was found in possession and control of the set, having it in his automobile. The property had been removed, without the consent of the owner, from its rightful place where its owner had placed it or intended it to be. This was a sufficient taking. See State v. Hook, 150 Kan. 247, 92 P. 2d 14, wherein it was held that the act of the accused in taking the cattle of another from one part of a pasture to another part of the pasture constituted sufficient possession and deprivation of the owner of the cattle as to make the offense of larceny complete. Defendant not only did not have any satisfactory explanation for his possession of the property so recently stolen but his falsehood to the salesman negatived any innocent intent and his statement to the owner amounted virtually to an admission that he was the taker of the set.
Defendant claims the court erred in failing to instruct the jury on an attempt to commit grand larceny. An attempt to commit a crime is one which, by its very definition, fails of completion (K. S. A. 21-101). The evidence here did not warrant such an instruction. On the contrary, as heretofore indicated, it clearly established all elements of the completed offense with which defendant was charged. The fact that defendant’s possession of the property was brief or that he had not completely removed it from the owner’s premises prior to detection does not militate against the integrity of the offense (see 3 Underhill’s Criminal Evidence, 5th ed., §592; 52 C. J. S., Larceny, § 6).
Defendant complains of the admission in evidence of the testimony concerning his actions and statements at the warehouse about a month prior to the commission of the offense with which he was charged and convicted. This complaint has no merit. The evidence of defendant’s prior misconduct at the warehouse very definitely tended to show a plan or scheme on his part, virtually the same as that used at the time of the commission of the larceny charged against him. Upon both occasions, around the noon hour, defendant was at a place where he had no right to be and when accosted, he accounted initially for his presence by the same fabrication. This evidence of wrongdoing upon the prior specified occasion was admissible pursuant to the exception contained in K. S. A. 60-455, being “relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident” (emphasis supplied), and the jury was appropriately instructed as to its scope (see State v. Wright, 194 Kan. 271, 398 P. 2d 339; State v. Poulos, 196 Kan. 287, 411 P. 2d 689).
Defendant next contends that instead of being charged with grand larceny under the general statute (K. S. A. 21-533) he should have been charged with what is commonly known as “shoplifting” pursuant to K. S. A. 21-535a. The legislature enacted this latter statute in 1959 defining a special class of larceny as a part of legislation dealing with the theft of merchandise offered for sale by a store or other mercantile establishment, which type of theft poses special problems, but we need not go further into that statute. Assuming, without deciding, that defendant could have been charged and convicted under the shoplifting statute, it does not follow that that statute is exclusive of the general larceny statute so that defendant could not be prosecuted under the latter. In 2 Wharton’s Criminal Law and Procedure (Anderson, 1959) §501, we find the rule stated thus:
“The fact that there is a special larceny statute under which the defendant could be prosecuted is not a bar to prosecution for common-law larceny or under a general larceny statute, when the defendant’s acts are such as to make him guilty of the latter offense as well as of the violation of the special statute.” (pp. 174, 175.)
The principle stated in the aforesaid rule was applied in State v. Hook, supra, wherein this court denied appellant’s claim of error in his prosecution under the general larceny statute rather than on a special statute denouncing the killing of the cattle of another as a form of larceny. As indicated, defendant here was properly convicted under the general larceny statute.
Defendant makes some complaint respecting his sentencing under the habitual criminal act. The record reveals he was given four days’ advance written notice of the intention to invoke the act, the two prior convictions being specifically stated. These convictions were shown in due form to be for robbery for which defendant was sentenced July 17,1941, in the Superior Court of the State of California in and for the City and County of San Francisco to a term of imprisonment for six years, and for grand larceny for which he was sentenced July 17,1958, in the District Court of the Thirteenth Judicial District of the State of Montana in and for the County of Yellowstone to a term of imprisonment for two years. Both of these convictions were for felony and no error appears in the application of the habitual criminal act.
Finally defendant complains it was not shown that the offense was committed in Reno county, Kansas. The evidence did reveal the locale as being five miles south of Hutchinson, Kansas, on Kansas State Highways 17 and 96, thus placing it in Reno county and definitely establishing venue in the court which tried defendant. No error being shown in that court’s rulings and judgment, they are affirmed.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Kaul, J.:
The defendant (appellant) on November 9, 1961, in the court below entered a plea of guilty to issuing a worthless check in violation of G. S. 1949, 21-554. On the same day he was sentenced to imprisonment in the Kansas State Penitentiary for a term of not less than fifteen years pursuant to sections 21-554, 21-107a and 21-109 of G. S. 1949. The defendant did not file a motion for new trial.
On February 15, 1962, defendant filed a notice of appeal pro se but took no further steps in prosecuting his appeal.
Early in 1965 the district court appointed an attorney for defendant pursuant to Prefatory Rule No. 1 (/), 194 Kan. xn. At that juncture defendant filed a motion to withdraw his plea. The motion was overruled by the district court for the reason that an appeal was pending. During tire course of the hearing on defendant’s motion to withdraw his plea, the county attorney and defendant’s counsel stipulated that at the time the check was given, both the defendant and recipient knew the check to be worthless.
The defendant’s sole contention is that under the facts stipulated to by the county attorney the prosecution is abated by the enactment of what is now K. S. A. 21-555c which became effective July 1,1963.
The state concedes that intent to defraud became a necessary element under the worthless check law under K. S. A. 21-555c. Such intent was not an element of the offense under G. S. 1949, 21-554, the statute under which defendant was prosecuted in 1961. (State v. Avery, 111 Kan. 588, 207 Pac. 838.)
Both parties refer to the enactment of K. S. A. 21-555c as an amendment to G. S. 1949, 21-554. An inspection of the Laws of 1963 reveals such not to be the case. K. S. A. 21-555c was enacted as section 5 of chapter 219 of the Laws of 1963. Section 7 of chapter 219 specifically repeals sections 21-554 and 21-556 of G. S. 1949.
Defendant does not deny that at the time of the prosecution G. S. 1949, 21-554 defined the offense charged in the information.
Defendant’s counsel now argues before this court and in his brief that after trial and conviction and while an appeal was pending before this court, the legislature amended G. S. 1949, 21-554 and 21-555 by adding K. S. A. 21-555c which bars all prosecutions under the no-fund and insufficient fund check statutes when the payee has knowledge that the maker has no funds or insufficient funds on deposit in the bank to pay the check. Counsel uses this logic to question whether the continued prosecution of the defendant is lawful. In essence he claims that K. S. A. 21-555c is retroactive in operation and therefore grants defendant immunity from prosecution.
The new act does not specifically state that it is to have a retrospective effect, section 8 merely provides that it should take effect and be in force from and after its publication in the statute book. Neither does the new act contain a saving clause to sustain prosecutions commenced under the repealed statutes. However, we take judicial notice of G. S. 1949, 77-201 (now K.S.A. 77-201). The pertinent part reads:
“In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute:
“First. The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. . . .” (Emphasis supplied.)
The first provision of the rules of construction statute (now K. S. A. 77-201) was enacted in 1868 (G. S. 1868, Ch. 104, § 1) and since that time has been construed as a saving statute, preserving all rights and remedies under a repealed statute when the repealing statute is silent as to whether such rights and remedies shall be abrogated or not. Its applicability to the instant case is clearly appropriate and the result resolves the issue herein adversely to defendant’s claim.
In the early case of State v. Boyle, 10 Kan.* 113, this court considered the statute’s application in a criminal case where the statute under which the prosecution was brought had been repealed while the criminal action was in progress. It was held:
“When a statute is repealed, and the repealing statute is silent as to whether the rights and remedies which have accrued under the repealed statute shall be abrogated or not, section 1 of the ‘Act concerning the construction of statutes’ (Gen. St. 998) will have the force and effect to have and preserve aE such rights and remedies, whether they belong to the state or to individuals, and in criminal as weE as in civil cases; and a criminal action pending under the repealed statute at the time it is repealed, may be prosecuted by virtue of said saving statute to final determination and judgment, notwithstanding said repeal. (Cited cases omitted.)” (Syl. |2.)
In the case of State v. Brown, 146 Kan. 525, 73 P. 2d 19, the act was applied in a situation closely analogous to that confronting us here. Defendant Brown had been tried and acquitted on a charge of statutory rape in 1933. Thereafter a new information was filed charging defendant Brown with the crime of rape on five specific dates, all within the two year period mentioned in the first information. The second information was filed February 1, 1934. In the legislative session of 1935, G. S. 1935, 62-1449, was enacted and became effective on February 20, 1935. The effect of the new act in the Brown case was to bar any subsequent prosecutions of the same person in another action for any act or acts for which the state could have asked for a conviction under the information in the former trial. On March 18, 1935, defendant Brown filed a plea in abatement on the ground that the Z'ewly enacted statute operated as a bar to further prosecution. The state’s demurrer to Brown’s plea in abatement was sustained. Thereafter a trial was had and Brown was convicted on three of the five counts. In his appeal Brown presented the same argument that is now before this court. He contended that the enactment of the 1935 law granted him immunity from prosecution and it was retroactive in operation. In affirming Brown’s conviction this court stated on page 528 of the opinion:
“It is clear that our statute G. S. 1935, 77-201, has always been construed as a saving statute as well as a guiding rule of construction. It becomes a part of every repealing statute that does not specifically state that it is to have a retrospective effect.”
The statute under which this prosecution was had was not absolutely repealed by the enactment of K. S. A. 62-555c but was kept in force so far as it affected cases like the one at bar by the force of the saving statute, K. S. A. 77-201. This court has stated in a number of cases involving die issue that the legislature has the power to pass a general saving statute which should have the force and effect to save rights and remedies, except where the repealing statute itself clearly shows that it was not the intention of the legislature that such rights and remedies should be saved. (State v. Brown, supra; State v. Boyle, supra; Gilleland v. Schuyler, 9 Kan.* 569; Willetts v. Jeffries, 5 Kan.* 471.)
The force and effect of a general saving statute, such as the statute in this state, was not contemplated in cases cited by the defendant.
In view of what has been stated the district court did not err in overruling defendant’s motion to withdraw his plea.
Finding no error in the record the judgment is affirmed.
Fkomme, J.: Not participating. | [
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Per Curiam:
In his written answer to the State Board of Law Examiners’ amended accusation in disbarment, the accused, Alonzo J. Fipps, admitted the allegations set forth therein and “throws himself on the mercy of the court.” His prayer was that the remedy for disbarment requested be reduced to suspension for a period of six months and he consented in writing to the entry of such an order.
Upon consideration of the amended accusation and the answer, the court finds that Alonzo J. Fipps has violated the can on of legal ethics and the standards of conduct required of him as an attorney at law, but also finds that the penalty of disbarment, in view of the nature of the acts alleged, is too severe.
It is therefore ordered that the certificate and rights of Alonzo J. Fipps as attorney at law be and the same are hereby suspended for a period of six months from and after the 7th day of May, 1966.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
O’Connor, J.:
This appeal arises from a proceeding under the workmen’s compensation act (K. S. A. 44-501, et seq.) wherein Willis B. Jacobs, the claimant (appellant), seeks reversal of the decision of the district court denying him an award of compensation.
The basic issue on appeal is whether or not there was substantial, competent evidence to support the district court’s finding that claimant did not sustain personal injury by accident arising out of and in the course of his employment.
The pertinent facts and circumstances relating to the claim for compensation may be summarized as follows: In late 1963 Goodyear Tire & Rubber Company of Kansas, Inc., one of the respondents (appellees), installed a new tire-building machine. Three tire builders, one from each eight-hour shift, were chosen to work on the machine. Claimant was the designated builder on his shift. During the adjustment and modification period management set no production quota; however, after completion of a time study, a minimum-maximum quota for an eight-hour shift was established. On several occasions claimant failed to produce the minimum number of tires and was reprimanded by supervisory personnel. He was also advised by management, both orally and by letter, that should he fail to meet the minimum quota, disciplinary measures would be taken whereby he would receive a week’s suspension and thereafter, should he again fail, face possible job termination. During this same period of time claimant was being harassed by his co-employees who cautioned him against producing too many tires and thus setting the piece rate too high.
Early in January 1964 claimant once again failed to meet the minimum quota and was given a three-day suspension. Parenthetically, we note that at a later date the union and management reached an agreement whereby the fixed quota was reduced so that at the time of claimant’s suspension his production came within the minimum established. After claimant returned to work the conflicts created by the demands of management on the one hand and his co-employees on the other made him nervous, irritable and unable to sleep at night, and because of these symptoms he was forced to seek the services and advice of the company doctor. The doctor conducted an examination, and finding nothing physically wrong, but suspecting claimant might possibly be suffering from some emotional problems, suggested he see a psychiatrist. Claimant consulted Dr. John A. Grimshaw, a qualified psychiatrist, who placed him under treatment. After undergoing psychiatric treatment, claimant returned to work.
Thereafter, claimant filed his claim for compensation, and on the evidence presented, the examiner entered an award denying compensation. The director upheld the examiner’s award, and on appeal, the district court, in affirming the decision of the director, found that claimant’s difficulty was the result of a mental illness, that he had suffered no physical blow or physical injury, and that he had not sustained personal injury by accident arising out of and in the course of his employment.
Although claimant advances several points of error, we think they resolve themselves into one primary contention: the district court erred as a matter of law in concluding that claimant did not sustain personal injury by accident within the meaning of the workmen’s compensation act.
Claimant urges, and would have us believe, that denial of compensation by the district court was predicated entirely on its assump tion that a physical blow or physical injury was necessary in order for an injury to be compensable under the act. Such a narrow reading and interpretation of the findings is unwarranted and completely overlooks the import of the court’s finding that claimant “did not suffer personal injury by accident arising out of and in the course of his employment.”
Under our well-established rules in workmen’s compensation cases, the jurisdiction of the supreme court on appeal from the judgment of the district court is specifically limited to the determination of questions of law (K. S. A. 44-556). The question of whether or not the disability of a workman is due to a personal injury by accident arising out of and in the course of his employment is a question of fact. (Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 334 P. 2d 370.) In reference to questions of fact, this court reviews the record only to determine whether or not it contains substantial, competent evidence to support the district court’s findings, and in so doing, all the evidence is reviewed in the light most favorable to the prevailing party below. If substantial, competent evidence appears, such finding is conclusive and will not be disturbed on appeal. (Atwell v. Maxwell Bridge Co., 196 Kan. 219, 409 P. 2d 994; Elliott v. Ralph Construction Co., 195 Kan. 723, 408 P. 2d 584; Mannell v. Jerome & Associates, 194 Kan. 789, 401 P. 2d 1009; Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796; Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106.)
The terms “personal injury” and “accident” as used in the act have been construed on numerous occasions by this court. (See Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P. 2d 676, and cases therein cited.)
Claimant contends that inasmuch as this court has liberally construed personal injury by accident to include situations in which a series of physical events results in injury (e. g., Barker v. Shell Petroleum Corp., 132 Kan. 776, 297 Pac. 418; Winkelman v. Boeing Airplane Co., 166 Kan. 503, 203 P. 2d 171) or death (e. g., Pence v. Centex Construction Co., 189 Kan. 718, 371 P. 2d 100), under our decisions dealing with traumatic neurosis a mental breakdown resulting from the stress of ordinary labor should also be compensable. Claimant cites many cases covering the series-of-impact and coronary categories in support of his contention, but in all of them the disability or death resulted from events physical in nature (physical stimuli) as distinguished from solely mental stimuli, as in the case at bar. Admittedly, we have held on numerous occasions that traumatic neurosis following physical injury, and shown to be directly traceable to such injury, is compensable under the act. (Elliott v. Ralph Construction Co., supra; Hayes v. Garvey Drilling Co., 188 Kan. 179, 360 P. 2d 889; Barr v. Builders, Inc., supra; Morris v. Garden City Co., 144 Kan. 790, 62 P. 2d 920.) This rule, however, has no application to the instant case since the district court found that although claimant’s difficulty was the result of a mental illness, he had suffered no physical injury.
Respondent points out, and we agree, that even if claimant’s mental condition be termed a disease under the broadest of interpretations, under our law (K. S. A. 44-5a02) such disease is not enumerated and would not constitute “injury by accident.” (See Watson v. International Milling Co., 190 Kan. 98, 372 P. 2d 287.)
Keeping in mind our function as an appellate court, and analyzing the evidence within the framework of our prior decisions, a few to which we have alluded, we cannot say the trial court erred as a matter of law in concluding that the claimant did not sustain a “personal injury by accident” within the meaning of the act.
Even if it be assumed that claimant sustained personal injury by accident, there is evidence justifying a conclusion that claimant’s condition did not arise out of his employment.
A claimant has the burden to show a causal connection between the work being performed and his resultant injury. (Transmeier v. Blaw-Knox Construction Co., 191 Kan. 321, 380 P. 2d 322; Rorabaugh v. General Mills, supra.) In the latter case it was stated:
“Under the workmen’s compensation act the rule is that the injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to he peiformed and the resulting injury. (Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496; Pinkston v. Rice Motor Co., supra; Alpers v. George-Nielsen Motor Co., supra; and Wilson v. Santa Fe Trail Transportation Co., supra.)” (p. 367.)
In the case at bar Dr. Grimshaw was the only medical witness. He testified that claimant was suffering from a psychiatric illness and that neither claimant’s workload nor the physical requirements of his job caused his mental breakdown. The doctor stated, “. . . patient has insisted throughout that it is not particularly the difficulty in meeting the quota that bothered him, but rather the ultimatum given to him by the supervisors which he felt was quite unjust and not in keeping with their former policies.” Dr. Grimshaw described claimant’s illness as a “reactive depression as a result of the conflicts which he felt between his fellow workers on the one hand and management on the other, and as a result of what he felt was an unfair ultimatum given to him by the supervisor.” It was the doctor’s opinion that claimant had certain personality characteristics which made him vulnerable to this type situation.
From the foregoing testimony it appears that claimant’s difficulty resulted from conflicts created by the opposing demands of management and union co-employees rather than the nature and requirements of his job. Such testimony would support the conclusion that there was no causal connection between the work being performed and claimant’s condition. Moreover, the demands of the co-employees were an external force over which management had no control or responsibility, and without them, it is speculative whether or not claimant would have encountered any difficulty.
Claimant urges that the decision in Carter v. General Motors Corp., 361 Mich. 577, 106 N. W. 2d 105, which arose -under a compensation statute somewhat similar to ours, should be applied to the facts of the instant case. Although the facts are analogous, the cases are distinguishable, for in the Michigan case a causal connection between the work being performed and the claimant’s mental breakdown was clearly established.
We have carefully examined the record in the light most favorable to the respondent and conclude there was substantial, competent evidence to support the trial court’s finding that claimant did not, within the meaning of the act, sustain personal injury by accident arising out of and in the course of his employment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for fraudulent misrepresentation of the nature of an electrical power transmission easement across the backyard of a dwelling property the defendant sold to the plaintiffs. The case was tried to a jury which returned its verdict in favor of the plaintiffs for $3,000. The district court overruled the defendant’s motion for a new trial, and he has appealed.
The defendant developed a tract of real estate in Johnson County upon which he built new residence dwellings for sale. He first advertised the til-level home on Lot 5 which the plaintiffs subsequently purchased, in a metropolitan newspaper on May 23, 1963. The original asking price for the residence was $19,950. On June 5, 1963, the defendant orally agreed with the Kansas City Power and Light Company to sell an easement across the backyard of Lot 5 and other lots. On June 21, 1963, he and his wife executed a formal easement grant to the power company for which they received the sum of $2,500. The easement was duly filed of record in Johnson County.
A few days later, the plaintiffs came to the defendant’s subdivision and were attracted to the tri-level home on Lot 5. It was the type home they were looking for and they were attracted to the trees on the lot, especially those in the backyard. The lot was deep, relatively level, and there were about 50 tall trees in the backyard. No prior parties had negotiated for the premises, and the defendant’s asking price was $19,950. During the plaintiffs’ negotiations for the property, the defendant disclosed the granting of the easement to the power company, the approximate boundaries of the easement, but represented that it would be for single wires and single poles involving the removal of one or two trees and the trimming of a few others. Relying upon the defendant’s representations, the plaintiffs purchased the property. After purchasing the property, the plaintiffs discovered the easement was to be used for high voltage lines, supported by “H” poles, with the right to remove virtually all of the approximately 50 tall trees standing in the backyard.
The sole question presented is whether the district court erred in overruling the defendant’s motion to declare a mistrial made at the close of the plaintiff’s opening statement and out of the presence of the jury.
In his opening statement to the jury, plaintiffs’ counsel referred to the defendant’s sale of the easement to the power company and that it was a single transaction which included easement rights across the lot purchased by the plaintiffs and another lot owned by the defendant, and stated:
“. . . And so they negotiated and Mr. Braun, the, I think, on June 9th it was, that Mr. Braun and representatives of the Kansas City Power & Light Company came to an understanding or an agreement that he would sell them their easement rights across Lot 5 in particular, I believe also Lot 13, up to the other end of the lots that the Power Company bought was also involved in the same transaction, and they needed part of Lot 13 for their high line easements, too. And they agreed then on June 5th that is, Mr. Braun and his wife who was also record owner, would sell to the Kansas City Power & Light Company these wide easements across Lot 5 which is our lot in question here and Lot 13, and for the two of them, Mr. Braun was to be paid the sum of $2500, I believe. And so on June the 21st, I believe, it was that the Kansas City Power & Light Company and Mr. and Mrs. Braun signed a formal easement grant, that is, they drew up an easement agreement in writing and they all signed it on or about June 21st, and it was recorded of record here in the courthouse in the Register of Deeds office, setting out what the easement rights were and what the limitations of it were as far as distance is concerned. . . .”
The defendant did not move to strike the opening statement, or ask the court to admonish the jury to disregard the objectional portion.
During the trial, plaintiffs offered evidence of the exact consideration the defendant received for the easement across Lot 5 as allocated by the defendant and the power company in their negotiations. The defendant’s objection to the testimony was. sustained by the district court.
In seeking reversal, the defendant argues the action was primarily for the difference in the value of real estate with the easement as it actually existed and the value of real estate with the easement as it was represented; that the amount he received for the easement was of no concern to the jury, and the facts as disclosed to the jury in plaintiffs’ opening statement were highly prejudicial. He urges his objection was timely made and that the only statement made by the district court to remove the matter from the minds of the jury was Instruction No. 2 given at the conclusion of all of the evidence, to the effect it should disregard statements and arguments of counsel as they were not evidence but were intended to help the jury in understanding the evidence and applying the law.
The plaintiffs argue the opening statement made reference only to a group price for the sale of the easement across two lots in defendant’s development, and that the jury never did hear the amount actually paid for the easement across Lot 5; that the issue was the fair market value of the property encumbered with the easement as it actually existed; that where such value is at issue, evidence of the price paid for the easement at a bona fide, voluntary sale close in time, as was the sale between the defendant and the power company, would be competent, but not conclusive evidence of its value, citing Reeser v. Hammond, 122 Kan. 695, 253 Pac. 233, a comparable fraud case, and that reference to the consideration received by the defendant was made in good faith and with reasonable grounds to believe the evidence was admissible to prove fraud, even though the intended proof was afterward excluded.
As preliminary to discussing the question presented, we note the rule of this court pertaining to appellate review that error is never presumed and it is incumbent upon the party complaining to affirmatively show that prejudicial error was committed. (Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626; Fangrow v. Fangrow, 185 Kan. 227, 341 P. 2d 998.)
Likewise, the rule of this court applicable here is that while the law guarantees to every litigant a fair trial, it does not guarantee him a “perfect” trial, and it is not enough to disturb a judgment that some error or impropriety transpired at the trial, except for prejudicial error affirmatively appearing which affects the substantial rights of the defeated party. (Cox v. Chase, 99 Kan. 740, 748, Syl. ¶ 11, 163 Pac. 184; Cook v. Railway and Bridge Co., 101 Kan. 103, 105, 106, 165 Pac. 803; Steck v. City of Wichita, 179 Kan. 305, 308, Syl. ¶ 3, 295 P. 2d 1068; Home Ins. Co. v. Atchison, T. & S. F. Rly. Co., 189 Kan. 316, 319, 320, 369 P. 2d 338.)
Another rule of this court equally applicable is that it rests in the sound judicial discretion of the district court to determine from all the circumstances whether alleged misconduct of counsel may have influenced the jury in arriving at its verdict, and, ordinarily, its conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly error. (Smith v. Cement Co., 86 Kan. 287, 120 Pac. 349; Ely v. Jones, 110 Kan. 10, 12, 202 Pac. 609; Thompson v. Howard Motors Co., 122 Kan. 339, 343, 252 Pac. 468; Collins v. City Cab Co., 192 Kan. 394, 399, 400, Syl. ¶ 3, 388 P. 2d 597; State v. McGee, 194 Kan. 246, 249, 398 P. 2d 563.)
The opening statements of counsel are generally no more than outlines of anticipated proof and are not intended as a complete recital of the facts to be produced on contested issues. Their purpose is to inform the jury in a general way of the nature of the action and defense; to advise it of the facts relied upon by the party to make up his cause of action or defense, and to define the nature of the issues to be tried and the facts intended to be proved, so as to better enable it to understand tbe case. (Hengel v. Thompson, 176 Kan. 632, 272 P. 2d 1058; Soden v. Gemberling, 188 Kan. 716, 718, 366 P. 2d 235; Steck v. City of Wichita, supra; Wilkerson v. Lawrence, 193, Kan. 92, 95, 96, 391 P. 2d 997; 88 C. J. S., Trial, §161, p. 314)
Generally speaking, counsel may outline in his opening statement what he expects to prove unless it is manifest that such proof would be incompetent, or the statement is made for the purpose of creating prejudice. Counsel should be allowed considerable latitude in his opening statement and its general nature and character rests largely with the discretion of the district court, which must necessarily rely on the good faith of counsel properly to confine his remarks within the bounds of propriety and good faith. Since whatever counsel states in his opening statement as to what he expects to prove is subject to further action of the court in permitting him to introduce testimony, it is not necessarily misconduct for him to claim something he. does not later prove. (88 C. J. S., Trial, §161, p. 314) The rule is stated in 53 Am. Jur., Trial, § 456, p. 358, as follows:
“It is generally held that statements by counsel that certain evidence will be introduced are not improper if made in good faith and with reasonable ground to believe that the evidence is admissible, even though the intended proof referred to is afterward excluded. However, in the absence of good faith, or where prejudice is clearly produced, whether as the result of accident, inadvertence, or misconception, the rule is to the contrary. . . .”
It has been held that a broad scope is necessarily afforded counsel in making his opening statement where fraud and misrepresentation are the issue. In Hutson v. Imperial Royalties Co., 134 Kan. 378, 5 P. 2d 825, 85 A. L. R. 789, rehearing denied 135 Kan. 718, 13 P. 2d 298, second rehearing denied 136 Kan. 176, 14 P. 2d 658, a case involving a similar question as here presented, objections were made to the plaintiff’s opening statement to the jury, and it was held not to affirmatively have prejudiced the substantial rights of the defendants. Mr. Justice Hutchison, speaking for the court, said:
“. . . The experience of every attorney is that often his realization in the way of evidence actually introduced falls short of what he in his zeal and enthusiasm expected it to be, and sometimes his better judgment dictates the propriety of omitting some of the evidence he had fully intended to introduce. But these occasional failures and intentional omissions should not malee a very wide spread between what the evidence is expected to show and what it later does show. . . .” (1. c. 381.)
When plaintiffs’ counsel made his opening statement, the district court could not anticipate what evidence would or would not be admissible. In Reeser v. Hamilton, supra, it was held not to be error to admit evidence o£ what an oil and gas lease sold for seven months before as having some bearing on its true value at the time of the fraudulent sale. Here, the district court ruled that evidence of the amount the defendant received as consideration for the easement across Lot 5 was not admissible, and we are not required to pass upon that point. However, it is apparent plaintiffs’ counsel relied upon Reeser v. Hamilton, supra, as authority for the admissibility of such evidence. We assume, as it is apparent the district court did, plaintiffs’ counsel acted in good faith when he referred to the overall price of the easement, and the burden is upon the defendant to show that if technical error was committed, such error prejudicially affected his rights and influenced the jury in arriving at its verdict. Neither the record nor the defendant’s brief provide any indication that the jury’s verdict was influenced in any way by the plaintiffs’ opening statement. Neither can we assume, in view of Instruction No. 2, that the defendant’s substantial rights were prejudicially affected.
In view of the rule heretofore stated, and because of the district court’s superior opportunity to form a just opinion of the effect of the conduct complained of, and its duty to disregard any error or defect which does not affect the substantial rights of the parties (K. S. A. 60-261), we conclude the defendant has not sustained the burden incumbent upon him to affirmatively show that prejudicial error was committed, and we affirm the judgment of the court below.
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant was charged and convicted of the offenses of forging a check and uttering a forged check as defined in K. S. A. 21-608 and 21-621, respectively. Appeal has been duly perfected by the defendant raising the questions hereafter discussed.
In general the appellant challenges the order of the trial court overruling his motion to quash the information and for discharge, and raises alleged trial errors concerning the admission of evidence and the giving of instructions.
On or about the 27th day of February, 1964, Lee Mader (defendant-appellant) was arrested on a complaint and warrant charging him in two counts with forging and uttering a forged instrument. On the 13th day of May, 1964, the appellant through his counsel waived the reading of the information and entered a plea of not guilty to the charges set forth in the information.
On the 30th day of September, 1964, the matter came on for trial, a jury was empaneled and sworn and the state presented its evidence. At the close of the state’s case the appellant moved for an order directing a verdict and for discharge, and for a mistrial. The court overruled the motion for a directed verdict but sustained the motion for a mistrial. It thereupon entered an order declaring a mistrial and discharged the jury.
On the 13th day of November, 1964, the state upon oral motion of the county attorney moved for an order to endorse additional witnesses on the information. Objection was made by the appellant on the grounds that there was no showing the names of the additional witnesses were not known, or could not have been known, to the county attorney prior to the time of the filing of the information and for the further reason that the endorsement of additional witnesses would prejudice the rights of the appellant. The trial court overruled the appellant’s objection and entered its order permitting the endorsement of six additional witnesses on the information.
On the 18th day of November, 1964, the state filed its “amended information” with the names of the additional witnesses endorsed thereon. The “amended information” was identical in form with the original information except for the endorsement of the names of the additional witnesses.
On the 1st day of December, 1964, the matter came on for trial the second time. After the jury was empaneled and sworn, the county attorney made his opening statement, witnesses were sworn, and the appellant moved to quash the “amended information” and for discharge on the ground that the appellant had not been arraigned on the “amended information.” The trial court overruled the motion and the case proceeded to trial without the appellant again being arraigned or any additional plea having been entered by the appellant himself. He elected to stand mute insofar as the “amended information” was concerned.
The jury found the appellant guilty on both counts on the 2nd day of December, 1964.
At this point the state informed the court that it intended to request the court to invoke the habitual criminal act because the appellant had twice previously been convicted of a felony offense. Thereupon the appellant through his counsel moved for a new trial and stated he would file his motion within five days. The court sustained the appellants motion to defer sentencing to permit the appellant’s counsel to file his motion for a new trial.
On the 10th day of December, 1964, the trial court heard the appellant’s motion for a new trial, and upon being fully advised in the premises overruled it. The state thereupon introduced evidence of two previous felony convictions of the appellant, and the court sentenced him to the Kansas State Penitentiary at Lansing for a term of twenty-five years on each count pursuant to the provisions of 21-608, supra, 21-621, supra, and K. S. A. 21-107a, the sentences to run concurrently.
The appellant contends the trial court erred in failing to have him rearraigned after the filing of the “amended information.” It is argued the record fails to show that the appellant ever entered a plea, or that a plea was entered in his behalf by the trial court.
The appellant relies on State v. Radke, 168 Kan. 334, 212 P. 2d 296, but an analysis of the facts discloses the decision is not applicable to the factual situation presently confronting the court, and readily distinguishable.
Here the wording of the “amended information” remained identical in form with the original information except for the endorsement of the names of six additional witnesses. Actually, the state should have endorsed the names on the original information filed. The error committed, however, was harmless and the second information filed was not actually an “amended information,” but the same information with additional names endorsed thereon. The appellant was arraigned and entered a plea of not guilty to the information upon which he was tried.
It has been held in a criminal case that the endorsement of additional names on the information is not an amendment of the information. (State v. Lightfoot, 118 Kan. 428, 235 Pac. 843.)
It has also been held in a criminal case that the endorsing of additional names of witnesses on the information rests in the sound discretion of the trial court, and material prejudice in the ruling thereon must be clearly shown before it constitutes reversible error. (State v. Wainwright, 190 Kan. 619, 376 P. 2d 829.)
At the turn of the century it was held that an information in a criminal action may be amended in matter of form at the trial, and when so amended it need not be reverified, nor is the defendant entitled to a rearraignment. (State v. Bugg, 66 Kan. 668, 72 Pac. 236.)
In the instant case the appellant made no claim of surprise, and no request for a delay in the trial. Approximately two weeks transpired from the filing of the "amended information” and the beginning of the trial. Ample time was afforded counsel for the appellant to visit with the additional witnesses who were endorsed on the information.
Here the “amended information” did not change the allegations of the offense charged. It did not raise any new issues. The appellant could not possibly have been prejudiced. He does not show how his substantial rights were prejudiced. Therefore, the trial court properly overruled the appellant’s motion to quash the so-called amended information.
The appellant next contends the trial court erred in admitting evidence of other instruments allegedly and purportedly altered by the appellant, but for which the appellant had not been charged in the information.
During the presentation of the state’s case in chief the trial court permitted the introduction in evidence, over the appellant’s objection, of other checks not set forth in the information, allegedly and purportedly forged by the appellant. This evidence tended to show that the appellant had committed other forgeries at the same time as the one in question with which he was charged. The appellant was positively identified by the persons to whom he passed these checks; the payee on each check was identical to the payee on the check with which he was charged; the purported drawer of each check was the same; and the handwriting appeared similar.
This particular point is governed by the provisions of K. S. A. 60-445, which were before the court in State v. Wright, 194 Kan. 271, 398 P. 2d 339, and in State v. Lewis, 195 Kan. 389, 405 P. 2d. 796.
From a legal point of view on this point, the facts in State v. Lewis, supra, were identical to those in the instant case, and the law set forth therein controls our decision. The court there held:
“In a criminal action the rule against the admissibility of evidence of other similar but independent offenses should always be strictly enforced, and to justify any departure therefrom the evidence must come under one or more of the exceptions to the general rule as set forth in the Code of Civfl Procedure, K. S. A, 60-455. (Following State v. Wright, 194 Kan. 271, 398 P. 2d 339.)
“The rule of evidence stated in K. S. A. 60-455 as applied to criminal proceedings did not materially change the case law as it was developed in Kansas prior to its enactment.
“Proof of an independent crime is admissible in the discretion of the court, and may be received in the state’s case in chief, under proper instructions, if it is relevant to the proof of the guilt of the defendant for the crime with which he is charged. To be relevant it must prove or tend to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme or system of operation, to prove malice and to rebut special defenses.” (Syl. ¶| 1, 2, 3.)
In the instant case the testimony of the witnesses through whom the other checks were introduced into evidence together with the instruments logically and naturally tended to establish the identity of the appellant, the appellants intent to defraud, and to prove his plan, scheme and system of operation.
When the trial court admitted the testimony of the other witnesses through whom the other checks were introduced, it orally informed the jury that the witnesses’ testimony was being admitted for the purpose of showing the appellant’s passing of the instrument in question was part of a scheme or pattern. The court later followed this with an appropriate written instruction to the jury.
The appellant next contends the trial court erred in giving its instruction No. 8 to the jury, because it in effect forced upon the appellant the burden of becoming a witness against himself in direct violation of his constitutional right to remain silent. Instruction No. 8 reads:
“You are further instructed that if you find beyond a reasonable doubt that the signature of Mrs. Iva Baker was forged upon the check in question and that the defendant had the check in his possession and did cash it, that then and in that event, you may, in the absence of some reasonable explanation to the contrary, consider the possession and cashing of the check as some evidence that he forged the same. To sustain the charge of forgery it is not necessary to prove the manual execution of the false signature by the defendant. The possession and cashing by the defendant of the forged instrument raises an inference that the defendant forged the instrument and throws upon the defense the burden of explaining away the said possession and cashing of the instrument, and if the same are not explained away may be sufficient to warrant a finding that the defendant committed the forgery. However, this inference is rebuttable and does not relieve the State from the duty of proving the defendant guilty beyond a reasonable doubt.”
The appellant argues the fact that he failed to take the stand, when considered in the light of the foregoing instruction, has prejudiced his rights.
The precise question here presented was before the court in State v. Earley, 119 Kan. 446, 239 Pac. 981. In that case the court said:
“But as to the actual forgery of the name James More by defendant, the state admits that it relies for proof to sustain the conviction on the first count on the evidence inherent in the circumstance that he was in possession of the forged check shortly or immediately before it was feloniously passed by defendant. The state invokes an analogous rule to that which attaches to the unexplained possession of recently stolen property, and would justify the conviction on the first count on the ground that the absence of a reasonable explanation of defendant’s possession of the forged check raised a presumption of fact that he forged it himself. There seems to be good authority for this, although the doctrine has not hitherto been authoritatively approved by this court.” (pp. 448, 449.)
Further in the opinion it was said:
“From the foregoing it seems clear that the legal principle for which the state contends is well founded, and the rule may be stated thus: Possession of a forged instrument by one who utters or seeks to utter it or otherwise to realize on it or profit by it, without a reasonable explanation of how the possessor acquired it, warrants an inference that the possessor himself committed the forgery or was a guilty accessory to its commission.” (p. 451.)
A similar question was presented in State v. Brown, 145 Kan. 247, 65 P. 2d 333, where the court said:
“. . . Was it necessary to prove the manual execution of the false signature by the defendant? Or does the possession of the forged instrument without a reasonable explanation raise a presumption of guilt? We think it does, and that the instruction was proper under the evidence in this case.
“The suggestion that the instruction throws the burden of proof on the de fendant is the most serious attack on this instruction. The instructions given fully and clearly covered all elements of the offense charged; that the law throws around the defendant the presumption of innocence, and requires the state to prove every material fact; that every presumption of law was in favor of his innocence, and that this guilt must be proven beyond a reasonable doubt.
“Statutory presumptions throwing the burden on the defendant for an explanation are common. . . .” (p. 251.)
In the instant case the trial court by the instructions given properly instructed as to the burden of proof on the offenses charged.
Every accused person goes to trial clothed with a presumption of innocence. But that presumption may be overcome, not only by direct proof, but when the facts standing alone are not enough, by the additional weight of a countervailing presumption, either legislative or existing within the framework of established law. (Yee Hem v. U. S., 268 U. S. 178, 69 L. Ed. 904, 45 S. Ct. 470.)
The argument that the practical effect of the instruction was to compel the appellant to be a witness against himself is without merit. The presumption compels nothing. It does no more than to make possession of the forged instrument prima facie evidence of the appellant’s guilt, where the jury finds beyond a reasonable doubt that the signature of the maker was forged upon the check in question. It leaves the accused entirely free to testify or not as he chooses. If the accused happens to be the only person in possession of the facts necessary to negative the presumption arising from his possession of the forged instrument, that is a misfortune which is inherent in the case. The constraint upon the appellant to give testimony in such situation arises simply from the force of circumstances and not from any form of compulsion forbidden by the constitution. (Wilson v. United States, 162 U. S. 613, 619, 40 L. Ed. 1090, 16 S. Ct. 895; and Yee Hem v. U. S., supra.)
The appellant next contends the trial court erred in its refusal to give his requested instruction No. 1. It reads:
“The defendant has called no witnesses in his behalf. You are instructed that the mere fact that the defendant has chosen not to call any witnesses in his behalf is not to be considered by you as removing from the defendant the presumption of innocence. It might be that the defendant has chosen to rest his case on the failure of the State’s witnesses to establish the necessary facts to constitute the commission of the offense or offenses in issue in this trial. This right is guaranteed to the defendant and the fact that he has not called any witnesses should not be taken into consideration by you in your deliberation on the evidence which has been adduced from the witness stand.”
Unfortunately, all instructions given by the trial court have not been abstracted, but the appellee contends the substance of the requested instruction was covered by the court’s instructions No. 4, No. 9 and No. 13, the latter being the standard “defendant does not testify” instruction.
Under these circumstances it has been held where an appellant relies upon an alleged error of the court in refusing to give a particular instruction, and only the one instruction is presented to this court for consideration, error will not be predicated upon the refusal to give such instruction, especially when it is claimed by the appellee that the substance of the instruction was in fact given in other instructions. (State v. Murphy, 145 Kan. 242, 65 P. 2d 342; and State v. Reilly, 85 Kan. 175, 116 Pac. 481.)
For the reasons heretofore assigned we hold the trial court properly overruled the appellant’s motion for a new trial, and prejudicial error has not been shown to have been committed by the trial court in any of its rulings.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This action was commenced by the plaintiff (appellant) Hazel Sullivan, formerly Hazel Walden, seeking possession of a homestead, partition of other real estate, and an accounting of rents and profits, against the defendants (appellees) Charles Sullivan, Fern Brandt and Esther Hucthinson, children of Henry Sullivan who died April 22,1963. Plaintiff and Henry were formally married on April 5, 1963. On February 14, 1963, Henry, as a widower, conveyed by warranty deeds to the defendants, his children by a former marriage, the real estate in controversy. Plaintiff’s claim was predicated on her rights as the wife of Henry under an alleged common-law marriage which the defendants, in their answer, denied. The matter was tried to the district court without a jury. From a judgment in favor of the defendants the plaintiff has appealed.
The principal question on appeal is whether or not the trial court erred in concluding no common-law marriage existed between Hazel and Henry.
The trial court made extensive findings of fact which with but slight amplification provide sufficient background for proper understanding of our disposition of the case.
Henry Sullivan, a divorced man fifty-five years of age who owned and lived on a quarter section of land in Morton county, was introduced to Hazel Walden, a forty-eight-year-old widow, by her son Gene early in 1946. Henry and Hazel began dating one another, and after they had gone together for approximately a year, Hazel, at Henry’s request, went to live with him on his farm on July 23, 1947. Although Henry asked Hazel to many him before she went to live with him, and she consented, no formal marriage ceremony was performed. No definite marriage date was set, even though the matter of getting married sometime in the future was discussed quite often.
Immediately after moving to the farm Hazel assumed not only the name of Sullivan but also the duties of a wife. In turn, Henry assumed the duties usually performed by a husband. The couple lived together in Henry’s house and shared the same bed from 1947 until Henry entered the hospital in early 1963, where on April 5, at Henry’s insistence, they were formally married by a minister in Henry’s hospital room.
During the period from 1947 to 1963 Henry and Hazel did not attempt to conceal the fact they were living together but did so openly. They were together constantly and often went to beer taverns in Rolla and Hugoton. The two of them took several trips together, staying at hotels and motels, where they registered as Mr. and Mrs. W. H. Sullivan or W. H. Sullivan and wife. On visits to Hazel’s relatives and friends Henry was usually introduced by Hazel or her children as her husband.
There was testimony to the effect that Henry always referred to and introduced Hazel as “Mom,” “Ma,” or “my Mrs.” and most of their friends called her “Mom” or “Ma” Sullivan; however, Henry’s children and some of the close neighbors testified they knew and referred to plaintiff as Hazel Walden.
Being aware of the fact that Henry and Hazel were living together, his children, as well as a nephew, asked Henry at different times whether or not he and Hazel were married and received profanely punctuated negative responses. One such occasion was in Hazel’s presence. Hazel also told one of Henry’s daughters on several occasions that she and Henry were not married. Approximately two months before Henry’s death Hazel stated to Henry’s other daughter, “Your daddy and I planned to get married but I guess we waited too long.”
In 1948 the couple was involved in an automobile accident with a neighbor, and on the papers submitted by Henry to the neighbor for signature Hazel’s name was listed as Walden. It was the testimony of this neighbor that she was never given the impression that Henry and Hazel were married, nor did she think they ever held themselves out to the public as husband and wife during all the years Hazel stayed at Henry’s house; and to her knowledge the people in the community knew Hazel as Walden — not Sullivan.
In November 1960, Mr. A. E. Kramer, attorney for the defendants, prepared a will for Henry wherein Henry provided, among other things: “I give, devise, and bequeath unto my housekeeper, Hazel Walden, the sum of $1,000.00.” This will apparently was lost or misplaced, and in February 1963, at Henry’s request, Mr. Kramer prepared another will with the same provision as above quoted. The residue of his property Henry devised and bequeathed to his three children. It appears that Hazel was aware of the provisions of the will and voiced no objections thereto. There was further evidence that Hazel and Henry were in Mr. Kramer’s office on two different occasions in 1962 and each time Henry introduced Hazel as Hazel Walden.
Certain documentary evidence covering the years 1950 through 1960 was introduced to substantiate the existence of a common-law marriage, but such evidence was controverted by the county enumeration records for the years 1961 through 1963 reflecting the names of W. H. Sullivan and Hazel Walden; the 1962 personal property tax statement signed by W. H. Sullivan, showing the names of W. H. Sullivan and Hazel Walden; Henry’s income tax returns for a five-year period signed by him and claiming only himself as an exemption; and Hazel’s 1961 income tax return signed Hazel A. Walden. Certain checks made payable to the plaintiff for the years 1959 through 1963 were also introduced into evidence. On at least two of them plaintiff’s name appeared as Hazel Walden, and on one check from Henry to the plaintiff her name appeared as Mrs. W. H. Sullivan, the check being marked “For Labor.”
The court, in rendering judgment for the defendants, concluded:
“1. At all times material to this action Hazel Sullivan, formerly Hazel Walden, and William Henry Sullivan, also known as W. H. Sullivan and Henry Sullivan, were both single and had full capacity to enter into a marriage contract;
“2. The conversations and actions of Hazel and Henry, at the time they started living together in July 1947 amounted to a marriage per verba de futuro cum copula, or a marriage by words of future assent with copulation, which is not recognized in Kansas, rather than a marriage per verba de praesenti, or a marriage by means of words of present assent, which would constitute a common law marriage, which is recognized and upheld by the laws of Kansas. This relationship did not change until the legal marriage on April 5, 1963. I do not believe either party understood that they had assumed the marriage relationship.
“3. The plaintiff held herself out as the wife of Henry Sullivan except on rare occasions. Henry Sullivan held himself out as the husband of the plaintiff only when it suited his convenience, such as occupying the same bedrooms at hotels, motels, relatives and friends of the plaintiff and perhaps to their tavern friends.”
Although the foregoing statements are under the caption “Conclusions of Law” in the journal entry of judgment, their essential character is such that we regard them as findings of fact on controverted issues and will so consider them. (Burns v. Burns, 87 Kan. 19, 123 Pac. 720.)
The plaintiff filed a motion for new trial on the grounds (1) of newly discovered evidence, and (2) the decision was contrary to the evidence produced by both parties substantiating the common-law marriage. The motion was overruled, and the ruling is included in the notice of appeal.
The plaintiff specifies several points of error, most of which may be grouped into the single contention that the findings and conclusions of the trial court were contrary to the evidence.
At the outset we are compelled to emphasize our function as an appellate court when the findings of a trial court are attacked for insufficiency of evidence or as being contrary to the evidence. It is the province of the trier of facts, not of this court, to pass on the credibility of witnesses and the weight of their testimony. As a reviewing court, we are confined to a determination of whether or not there is substantial and competent evidence to support the findings of the trial court. In making such determination, the record is examined in the light most favorable to the prevailing party below, and when the findings are based on substantial, competent evidence, they are binding and conclusive on appeal, notwithstanding there may be evidence that would have supported contrary findings. Decisions in which these rules have been recognized and applied are legion. For a few of our recent cases see In re Estate of Latshaw, 194 Kan. 747, 402 P. 2d 323; Callan v. Biermann, 194 Kan. 219, 398 P. 2d 355; Nelson, Administrator v. Dague, 194 Kan. 195, 398 P. 2d 268; Hendrixon v. Schemahorn, 193 Kan. 640, 396 P. 2d 352; Finnell v. Patrons Co-operative Bank, 193 Kan. 354, 394 P. 2d 116; Nichols Co. v. Meredith, 192 Kan. 648, 391 P. 2d 136; In re Estate of Guest, 182 Kan. 760, 324 P. 2d 184.
The foregoing rules regarding appellate review have also been adhered to in cases involving the sufficiency of evidence to prove a common-law marriage. In Hineman v. Hineman, Executor, 179 many of our prior decisions are cited.)
“. . . where the trial court has made findings of fact based upon substantial and competent evidence such findings will not be disturbed on appeal notwithstanding the record may reflect evidence which would support a contrary or different finding.” (pp. 545-546.)
Also, see Amerine v. Amerine, Executor, 178 Kan. 79, 283 P. 2d 469.
The validity of common-law marriages has long been recognized in this state. The basic elements essential in establishing the existence of such marriage relationship are: (1) capacity of the-parties to marry, (2) a present marriage agreement, and (3) a holding out of each other as husband and wife to the public. (See Gillaspie v. Blair Construction Co., 192 Kan. 455, 338 P. 2d 647, in which many of our prior decisions are cited.)
Inasmuch as there is no question concerning the capacity of Hazel and Henry to enter into a common-law marriage, we will proceed directly to consideration of the second essential element, namely, the present marriage agreement. Plaintiff contends that her testimony required a finding by the trial court that there was such an agreement. A portion of her testimony was to the- effect that she went to live with Henry July 23, 1947, “Because Henry asked me to marry him and I told him I would.” Plaintiff seeks to sustain her contention on the basis that similar testimony was present in Cain v. Cain, 160 Kan. 672, 165 P. 2d 221, in which case a common-law marriage was found to exist; but a close reading of the decision reveals that this court did not consider that portion of the testimony as a significant factor which warranted the inference there was a present marriage contract.
A review of plaintiff’s own testimony, a part of which is set out below, warranted the trial court’s finding there was no present marriage agreement and that neither party understood they had assumed the marriage relation:
“He asked me if I would marry him and I said yes. That was before I went out there. I said at that hearing [before the Social Security examiner] that he put off getting married two or three times and kept putting it off. It was discussed pretty often and most■ of the time we were talking about getting married in the future. Prior to April 5, 1963, we never set a date to get married. . . . Henry said we were not married but that we were going to get married.” (Emphasis added.)
An analogous finding was upheld in Pitney v. Pitney, 151 Kan. 848, 101 P. 2d 933, in which this court stated that plaintiff’s testimony established the parties cohabitated together upon the promise of the man to have a marriage ceremony performed in the future.
In reviewing the entire record, we concede there was evidence from which the court could have found that the parties intended a present marriage agreement; however, the evidence was conflicting, and the trial court, in its advantageous position as the trier of the facts, resolved the conflict against the plaintiff. We hold that the court’s finding No. 2 was supported by substantial, competent evidence and cannot be disturbed on appeal.
In considering finding No. 3, which had to do with the third essential element of a common-law marriage, we construe it as a finding that there was no mutual holding out as husband and wife to the public. A lengthy narration of the testimony on this point would serve no useful purpose. It suffices to say there were acts and statements by Henry, as revealed by the testimony of Henry’s three children, several of his neighbors and his nephew, that would support the court’s finding. Also, the name Hazel Walden appearing on the accident report submitted by Henry in 1948, shortly after Hazel and Henry began living together, shed some light on the manner in which Henry desired their relationship to be considered by the public. Nor do we overlook the evidence that within a year preceding his death Henry introduced the plaintiff to his attorney as Hazel Walden on at least two separate occasions. Again, plaintiff asks us to re-examine the evidence from the “cold, printed page” and arrive at a different finding from that reached by the trial court. True, there were acts on the part of Henry that would sustain a contrary finding; however, under our well-defined rules, we are not at liberty to arrive at a determination contrary to that of the trial court, since its finding is supported by substantial, competent evidence.
Plaintiff, in an effort to bolster her contention that a common-law marriage existed in spite of the evidence that she and Henry “were talking about getting married in the future,” cites as authority Gillaspie v. Blair Construction Co., supra, in which case the existence of a common-law marriage was sustained, although there was testimony that the parties had planned to go to Las Vegas in the coming year to have a ceremony performed. There, this court noted that the relationship was entered into in good faith and cohabitation was generally matrimonial in its inception; they publicly acknowledged each other as husband and wife, and were reputed to be such in the communities in which they lived. Because of these factors, the future ceremony contemplated by the parties lost its materiality to the relationship already established. The case provides but small measure of comfort for Hazel’s cause. The trial court’s findings Nos. 2 and 3 sustain neither a present marriage agreement nor a mutual holding out to the public, both of which were present in Gillaspie.
Plaintiff’s contention that the trial court erred in overruling her motion for new trial on the ground of newly discovered evidence requires only brief attention. The new evidence was submitted in the form of an affidavit which contained the findings of the Social Security examiner, made after the trial of the instant case, in which Hazel’s application for widow’s insurance benefits as the common-law wife on Henry was sustained. Plaintiff advances no theory or authority which would permit the examiner’s findings to be admitted into evidence before the trial court in a new trial. Plaintiff candidly admits the evidence before the examiner was nearly identical to that presented to the district court. Under such cricumstances plaintiff’s motion for new trial on this ground amounts to no more than a request to the trial court to reweigh the same evidence and arrive at a different conclusion. Such a request is clearly an abortive effort to distort the principles upon which a new trial may be granted on the ground of newly discovered evidence. (Mourning v. Harrison, 154 Kan. 242, 118 P. 2d 558. Also, see K. S. A. 60-259 (a) Fifth.)
The plaintiff summarizes her argument with a statement that this court is confronted with a case involving equities which require a judgment in her favor. The inflexible rules of appellate review demonstrate the weakness of such argument. We acknowledge the evidence might well have sustained a result contrary to that reached by the trial court; however, since this was essentially a fact case which initially the trial court was called upon to resolve, its findings cannot be disregarded by this court, even in the face of equities that to the plaintiff may seem of an overwhelming nature.
Other points advanced by the plaintiff have been considered and found to be without merit. The judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
On March 22, 1963, the petitioner, Sam Byrd, Jr., entered a plea of guilty to second-degree burglary and was sentenced to the Kansas State Penitentiary for not less than five nor more than ten years. Throughout those proceedings the petitioner was represented by court-appointed counsel, concerning whose competency no question is raised.
Thereafter, the petitioner filed a motion, pursuant to K. S. A. 60-1507, in which he attacked the sentence on the ground that he was not provided legal counsel at the preliminary examination. This motion was presented to the Wyandotte County District Court on September 11,1964, at which time the petitioner was represented by court-appointed counsel, Mr. Albert Grauberger, an attorney of Kansas City, Kansas.
Upon examining the pleadings, the trial court found that the petitioner s presence was not required for the purpose of the hearing and, after hearing arguments of counsel, overruled the motion to vacate the sentence. The instant appeal was subsequently perfected and new counsel, Mr. R. H. Foerschler, also of Kansas City, was appointed to represent the petitioner.
Two questions are presented on this appeal: First, that counsel should have been appointed to represent the petitioner at his preliminary hearing; and second, that a plenary hearing should have been held on his motion to vacate the sentence.
Neither of the questions presented are new. Both have been answered authoritatively on numerous occasions.
In an unbroken line of decisions this court has held that an accused has no constitutional right to appointed counsel at the preliminary examination and that the failure to provide him with counsel at such time does not constitute reversible error unless his substantial rights have been prejudiced thereby. (State v. Daegele, 193 Kan. 314, 393 P. 2d 978, cert. den. 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686; State v. Blacksmith, 194 Kan. 643, 400 P. 2d 743; Portis v. State, 195 Kan. 313, 403 P. 2d 959; Cooper v. State, 196 Kan. 421, 411 P. 2d 652.)
We would agree with petitioner’s assertion that under certain circumstances the preliminary hearing may become such a critical phase in the prosecutory process that appointment of counsel is required. (White v. Maryland, 373 U. S. 59, 10 L. Ed. 2d 193, 83 S. Ct. 1050; Hamilton v. Alabama, 368 U. S. 52, 7 L. Ed. 2d 114, 82 S. Ct. 157; Pointer v. Texas, 380 U. S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065.) However, none of the pernicious circumstances pointed out in the foregoing federal cases are shown or alleged to exist in the present action. There is nothing in this record to indicate that the petitioner was in any way prejudiced by lack of counsel at his preliminary examination.
Furthermore, the defendant’s voluntary plea of guilty to the charge against him constituted a waiver of any irregularities which might have occurred at the preliminary hearing stage of the proceedings. (Portis v. State, supra; Zumalt v. State, 195 Kan. 520, 407 P. 2d 234.) We hold that petitioner’s first claim of error is without merit.
Likewise, the second ground urged by appellant is untenable. His motion to vacate the sentence presented no triable issue of fact, for it was predicated solely on lack of counsel at the preliminary examination. That issue of law was determinable, so far as this case is concerned, from the files and records which were available to the court. Accordingly, no evidentiary hearing was required. Under the provisions of Rule No. 121 (h) of the Supreme Court (194 Kan. xxviii), a trial court is vested with discretion to deter mine whether a claim is substantial before granting an evidentiary hearing and requiring the petitioner to be produced.
Clearly, a plenary hearing would have served no practical purpose. The legal point involved was presented on oral argument, at which the petitioners court-appointed counsel was present. No contested issue of fact was presented, and neither the petitioner s presence nor his testimony would have assisted the court in deciding the legal issue which was raised. Hence, no abuse of discretion is shown. (Groene v. State, 195 Kan. 740, 408 P. 2d 580.)
We have carefully examined the record in this case and find no error. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a condemnation action.
The underlying question is whether the trial court erred in giving an instruction to the jury which the appellant alleges to be a directed verdict for the landowner.
In the year 1958 the Urban Renewal Agency of the Wichita, Kansas, Metropolitan Area (appellant) by and through its agents and employees, informed Elizabeth Tate (appellee), the landowner herein, that it was going to take her property as a part of an urban renewal project. It was not, however, until December, 1961, when appraisers for the Urban Renewal Agency came by to look at the landowner s property. The date of the taking by the Urban Renewal Agency was February 8,1962.
Subsequently the landowner appealed from the award of the appraisers, who had been appointed by the court in the condemnation action. The sole issue to be tried to the jury in the condemnation appeal was that of determining the market value of the land and the improvements condemned.
When the condemnation appeal came on for trial in the district court it was tried to a jury with only two witnesses, one witness by the landowner, herself, and one witness by the Urban Renewal Agency.
In her testimony the landowner generally described the real estate and the improvements on it. Her testimony revealed that she purchased four lots in October, 1954, at a price of $200 each. After the purchase she spent some four months cleaning them up, removing trash and debris. She had ten loads of dirt hauled in at a cost of approximately $40, and moved a house trailer on the location which cost $650. She further improved the lots by putting down a water well which cost approximately $100, constructed a summer house containing 689 square feet, and planted flowers, shrubbery and trees. She also commenced the construction of a large house near the front of the lots in 1957. The dimensions of this house were 28 by 32 feet. She testified that she had invested approximately $800 to $1,000 in this house for materials. She also constructed a rock garden at a total cost to her of $200. She further testified she spent a total of 6,300 hours of her own labor improving the premises. An objection was sustained by the trial court when she was asked to place a value on her labor.
The only utility available to the premises was electricity.
The landowner was permitted to testify as to the market value of the premises as improved, which included the house trailer condemned by the Urban Renewal Agency. She said the market value in her opinion was between $8,000 and $9,000.
The witness called by the Urban Renewal Agency was Lisle Morris, who stated his profession to be that of a real estate appraiser. In placing a value upon the premises condemned, he testified as follows:
“Q. Mr. Morris, do you have an opinion as to the value of the property on February 8, 1962, the market value of the property?
“A. I would have an opinion assuming that there had been no additional work done on that east portion.
“Q. And what would your opinion be?
“A. All right, sir. In my opinion the value of the property assuming that it was in essentially the same condition that it was when I made my original inspection, it is my opinion it had a fair market value of $3,200.00.”
The foregoing opinion testimony of Mr. Morris was qualified by the fact that the only time he had occasion to view and appraise the property of the landowner (described as Lots 50, 51, 52 and 53 in Block 19 of Orienta Park Addition to Wichita, Kansas) was in February, 1961. This was one year before the property was taken by condemnation.
The landowner testified she was continually maldng improvements to the property and building onto both the summer cottage and the house which she was building on the front of the lots. This was necessitated by the fact that she could not sell her property because it was known for several years the Urban Renewal Agency was going to take it; that she had to have a place to live; and that the city health authorities required her to make additions and improvements to comply with the city health laws. Her testimony in substance was that the property had been improved considerably by additional building since the appraisal was made by Mr. Morris.
The fact that there had been considerable change in the premises is confirmed by the testimony of Mr. Morris. When he was shown photographs of the premises made on the date of the taking, he said he did not recognize the premises from some of these photos as he remembered it. On some photos he pointed to additions made to the buildings on the premises, which were not there when he made his appraisal.
The landowner moved to strike all of the testimony of Morris relating to the market value of the property taken because it was purely speculative and too remote.
The trial court overruled the objection and after counsel agreed upon the instructions to be given the court recessed until 9:30 the next morning. Before convening the next morning, the trial court added the instruction here in controversy. It reads in pertinent part:
“You are instructed that tire only evidence you have before you as to tire market value of the landowner s property on the agreed date of taking, February 8, 1962, is that evidence of the landowner.
“The landowner’s evidence as to the market value of her property on the date of taking is that it was worth between $8,000.00 and $9,000.00.
“You are instructed that you will retire to your jury room and return a verdict in favor of the landowner. You will, under the evidence in this case, return a verdict placing the market value of the landowner’s property at a figure of not less than $8,000.00 and not more than $9,000.00.”
This instruction came as a surprise to counsel for the respective parties inasmuch as the trial court the previous evening had overruled the landowners motion to strike the testimony of Mr. Morris. Counsel for the Urban Renewal Agency was, however, permitted to make an objection for the record.
The giving of the foregoing instruction by the trial court, upon its own motion, was in substance a reversal of its previous ruling on the landowner’s motion to strike the testimony of Mr. Morris. We shall proceed upon the assumption that the testimony of Mr. Morris was properly stricken from the record.
The question therefor presented is whether under these circumstances it can be said the giving of the foregoing instruction was erroneous.
The Urban Renewal Agency contends the foregoing instruction of the court, directing a verdict, superseded other instructions given by the court and denied the Agency the right to have the market value of the property decided by the jury on proper instructions.
It must be conceded a landowner is a competent witness to testify as to the value of his property. (Randle v. Kansas Turnpike Authority, 181 Kan. 416, 312 P. 2d 235; and Taylor v. State Highway Commission, 182 Kan. 397, 320 P. 2d 832.)
It should also be noted that the value of a parcel of land taken by eminent domain is usually a matter of opinion, and may be proved by opinion evidence. (Mai v. City of Garden City, 177 Kan. 179, 277 P. 2d 636; and see, Cline v. Kansas Gas & Electric Company, 182 Kan. 155, 318 P. 2d 1000.)
The general current of authorities is that in all condemnation cases compensation should be ascertained and assessed as of the time the property is taken. (C. B. U. P. Rld. Co. v. Andrews, 26 Kan. 702; Wier v. St. L., Ft. S. & W. Rld. Co., 40 Kan. 130, 19 Pac. 316; Emery v. Riverside Drainage District, 132 Kan. 98, 294 Pac. 888; and Steck v. City of Wichita, 179 Kan. 305, 295 P. 2d 1068.)
It is the contention of the landowner that had the jury brought in a verdict for less than $8,000, the court would have been required to grant a new trial on the ground the verdict was not in conformity with the evidence.
Counsel for the landowner argue the only evidence as to the value of the property on the date of the taking was that of the landowner; that the only amount which the jury could legally find was a value somewhere between $8,000 and $9,000; and that the court was obligated to so direct the jury.
The landowner relies upon Love v. Common School District, 192 Kan. 780, 391 P. 2d 152, calling our attention to the fact that this court there reversed an award which was $500 under the minimum estimated value of the property of the landowner’s witnesses, where there was no admissible testimony given by the condemner as to the value of the property as of the date of the taking.
The legal import of the decision in the Love case does not support the landowner. There an employee in the county assessor’s office was permitted to give his opinion of the “market value” of property, based upon records on file in his office compiled by an appraisal firm of Lincoln, Nebraska, three years prior to the date of the taking. It was the erroneous admission of this evidence that was the basis for the reversal.
In an action to determine the value of property condemned, the opinions of witnesses as to the value of such property at the time it is condemned will not be deemed conclusive, but the jury may consider such opinions in connection with all the other testimony in the case, and then determine for itself from all the testimony the value of such property. Stated in other words, it may be said the jury is not bound by the opinion testimony of a witness. The jury is entitled to take into consideration the facts testified to by the witness as to the cost, quality and condition of the property, and come to a different opinion as to its value. The jury is to decide what weight, if any, shall be given to the opinion or evidence of the expert witness, or to the opinion of a nonprofessional witness. The members of the jury are not bound by such evidence, and may exercise their own judgment based upon experience in deciding the question touching which opinion testimony was given. (C. K. & W. Rld. Co. v. Drake, 46 Kan. 568, 26 Pac. 1039.)
A similar question arose in Shouse v. Consolidated Flour Mills Co., 128 Kan. 174, 277 Pac. 54, where opinion testimony concerned the value of legal services. There opinion testimony was given that the value of the legal services in question was not less than $12,000 nor more than $15,000. The plaintiffs claimed only $12,000 in their petition, and the jury was instructed to assess the amount of the plaintiffs’ recovery at $12,000, less $500 which had already been advanced by the defendant. This instruction was held to be erroneous on the ground that a court or jury trying the question of the value of legal services was not bound to accept as conclusive the opinions given by attorneys respecting such value.
A more recent case touching the subject is Denman v. Colorado Interstate Gas Co., 179 Kan. 180, 294 P. 2d 207. There the court said:
“The owner, cross-appellant, next argues the answers to special questions were not supported by the evidence. He argues there was no evidence as to the exact amounts found by the jury while there was expert testimony as to other amounts. He argues in effect under such circumstances the jury was bound to answer the questions in accordance with the expert testimony. Expert testimony uncontradicted is sufficient to support a verdict, but the jury is not bound by it.” (p. 183.)
In Smith v. Tri-County Light & Power Co., 120 Kan. 123, 241 Pac. 1090, the applicable rule was discussed by the court as follows:
“Plaintiff raises one other question. He moved for a new trial upon the amount of damages only. This was overruled. Upon this point his contention is that all of the evidence before the jury fixed the value of the barn burned at $2,000, while the jury found its value to be $900. It is true that each witness who placed a value upon the bam in his testimony, placed such value at $2,000, but that is not all of the evidence before the jury as to the value of the barn. Its description was given in detail. Its size, the material of which it was built, the fact that it had been built seventeen years, all furnished ground upon which the jury could base a judgment as to its value, even though no witness had stated a specific sum as to the value. While the jury might have found a different value on the barn, they had evidence to sustain the finding which was made.” (p. 128.)
In the instant case the instruction of the trial court, in effect, said that the opinion of the landowner was the only evidence of market value in the case. This was erroneous. The landowner testified quite extensively with respect to the improvements on the property which the jury should have been permitted to consider.
Counsel for the landowner argue that since the jury brought in a verdict, which was only $50 less than the maximum amount which the court set in its instructions, the jury must have considered all the evidence which constituted the basis of the landowner’s opinion. Therefore, it is argued, even if the instruction is held to be erroneous, it did not result in prejudicial error.
Whether the jury considered all the evidence in the case and would have decided as it did without the erroneous instruction is purely speculative. Under the circumstances we cannot say the erroneous instruction did not prejudice the appellant when the jury determined the market value of the property condemned.
The judgment of the lower court is reversed with directions to grant a new trial.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
The plaintiff-appellant, A. Staneart Graham, commenced this action pursuant to K. S. A. 60-907, on his own behalf and on behalf of all other taxpayers of the city of Pittsburg, Kansas, to enjoin the commissioners of the city from proceeding with certain street improvements without submitting the question to a popular vote, pursuant to K. S. A. 12-688.
It is unnecessary to summarize the plaintiff’s petition or the city commissioners’ answer since the facts disclosed in those pleadings are not in dispute. The city commission moved to dismiss the petition for failure to state a claim upon which relief could be granted. In accordance with K. S. A. 60-212 (b), the motion was treated as one for summary judgment (K. S. A. 60-256), and the district court, relying upon the rationale of State, ex rel., v. Dunn, 118 Kan. 184, 235 Pac. 132, in a memorandum opinion, sustained the motion for summary judgment.
The facts pertinent to this lawsuit are summarized: On May 18, 1965, the city governing body adopted Resolution No. 173 for the improvement of Joplin Street in the amount of $215,000, and Resolution No. 174 for the improvement of Walnut Street in the amount of $325,000, and they were duly published in the official city paper. The resolutions were adopted pursuant to K. S. A. 12-688 which authorizes such improvements, and permits not less than ten percent of the electors who voted at the last preceding regular city election to file a protest requiring the city governing body to call an election to determine whether the street improvements should be made.
Acting pursuant to K. S. A. 12-688, the plaintiff and 860 other qualified electors of the city of Pittsburg timely filed twelve protest petitions composed of 42 separate sheets of paper, with the city cleric. Each petition contained not less than three separate sheets which were stapled together, making one complete document. The first sheet of each petition contained a typewritten or printed form of heading which recited in substance that the undersigned, a qualified elector of the city of Pittsburg, protested Resolutions Nos. 173 and 174 approved by the city governing body on May 18, 1965, and requested that an election be called to determine whether the street improvements should be made, all as provided by K. S. A. 12-688. Following the heading, appropriate space was provided for the signatures of electors to sign their names and the street and number of his or her place of residence. Each sheet of paper between the first and last sheets of each petition contained space only for the signatures of qualified electors and the street and number of their place of residence. The last sheet contained space for the signatures of electors and their place of residence and near the bottom was an appropriate typewritten or printed form of verification, which complied with the statute. In other words, the last sheet of each petition contained the only form of verification. When filed with the city clerk, each petition was verified on the form provided by the person who circulated it and procured the signatures to the various sheets of the petition, before an officer competent to- administer oaths, stating that he was a duly qualified elector of the city of Pittsburg and was one of the signers of the petition; that the statements made in the petition were true, and that “each signature to this paper is the genuine signature of the person whose name it purports to be.”
At the direction of the city commission, the city clerk checked the names appearing upon the petitions against the registration books of the city, and found there were 664 names of qualified electors appearing on the petitions whose names and residences corresponded with the registration books, and that such persons were qualified electors of the city. Thereafter, the city commission examined the petitions and concluded they were insufficient to call a special election because each sheet of the several petitions was not verified by a signer of the particular sheet on which his or her name appeared, stating that each signature thereon was the genuine signature of the person whose name it purported to be.
Based upon the foregoing standard, the city commission determined that only 178 valid names of qualified electors were affixed to the petitions; that the protests were in fact insufficient since the names of 332 qualified electors, or ten percent of the 3315 electors who voted at the last preceding regular city election, were required to call a special election and, accordingly, denied the petitions and determined that no special election be called.
When the issue presented is laid bare, its solution lies in the proper construction of K. S. A. 12-688. There is no dispute as to the facts, and the appellees candidly concede that the protest petitions were sufficient to call an election were if not for the verification clause in the statute. The statute, after providing for the improvement of any main trafficway or trafficway connection by resolution of the city governing body, describing in general terms the improvement to be made and stating the estimated cost thereof, reads, in part:
“The resolution shall be published for six (6) consecutive days in the official city paper if such paper is a daily paper or once each week for two (2) consecutive weeks if a such paper is not a daily paper. If within thirty (30) days after the last publication of said resolution there shall be filed in the office of the city clerk, not later than five (5) p. m. on the last day, a protest signed by qualified electors equal in number to not less than ten percent (10%) of the electors who voted at the last preceding regular city election as shown by the poll books, an election shall be called and held within ninety (90) days after the last publication of the resolution or at the next regular city election if held within that time.
“The signatures to the protest need not all be appended to one (1) paper, but each signer shall add to his signature his place of residence, giving the street and number (if there are street numbers). One of the signers of each such paper shall make oath before an officer competent to administer oaths that each such signature to the paper appended is the genuine signature of the person whose name it purports to be. . . .”
The plaintiff principally contends the statute clearly states that the signatures to the protest need not all be appended to one paper but that one of the signers of each such paper shall make an oath before an official competent to administer oaths, that each signature to the paper appended is the genuine signature of the person whose name it purports to be. He directs our attention to the fact that the word paper is used, not sheets, or sheets of paper, but only the word “paper,” and argues the statute does not say each sheet shall be verified, but provides that only the “paper,” which may be composed of several sheets stapled together, shall be sworn to by one of the signers thereof. He then directs our attention to the definition of “paper” in Webster’s International Dictionary and in Black’s Law Dictionary, and concludes that it is clear from those definitions that the word “paper,” as used in the statute, does not mean sheets of paper but is used synonymously with the word “document” or “instrument.”
The appellees concede that the word “paper,” standing alone, may be used to mean either a sheet of paper or many sheets of paper fastened together, but urge that the purpose of legislation is not discovered by an examination of one sentence, or one section, but by a comparison of all the pertinent provisions, and construing them in the light of the purpose to be accomplished. They argue that when the paragraph of the statute dealing with verification is read as a whole, the legislature used the word “paper” in its singular sense, that is, a piece or sheet of paper, and as thus construed, the statute means that the signers to the protest need not all be appended or attached to one sheet of paper, but that one of the signers of each such sheet of paper shall make oath that each signature to the sheet of paper so attached, is the genuine signature of the person whose name it purports to be. In other words, the appellees read the word “paper” as a “sheet of paper” and not as a “document” or “instrument,” as the plaintiff contends, and urge the statute requires that the person who verifies a “sheet” of a protest shall be a signer of that sheet, and that names on sheets not so verified may not be counted by the city commission in determining the sufficiency of the petitions to call an election.
The crux of this lawsuit is the meaning to be ascribed to the word “paper.” The word is not a technical one, and we think the legislature used it according to its approved usage. The statute provides that “a protest signed by qualified electors” of the number specified shall require the calling of an election, and that more than one “paper” may contain the signatures to the protest, which shall be verified by one of the signers of “each such paper” in the manner required. It is a matter of common knowledge in this state that signatures of electors to a written protest are secured by the circulation of one or more petitions throughout the city. Generally, such a petition is composed of more than one sheet of paper which are stapled or fastened together. The first sheet contains a heading or statement of the grounds for the protest and a request that an election be called. Thereunder, space is provided for the “signature” and “residence” of the electors signing the petition, which continues over onto other sheets for the same purpose. Where verification is required, the last sheet contains the form of verification to be executed. When the requisite number of qualified electors have signed the written protest, the petition is verified by the person circulating it and it is filed with the proper city official.
The legislature doubtless contemplated that a paper of the character authorized by the statute would be circulated by an interested elector who would see each person sign it and would be in a position to make oath that each signer to the paper was the genuine signature of the person whose name it purported to be. The statute makes no requirement, as the appellees contend, that each “sheet” of “each such paper” shall be verified. In requiring verification, the legislature sought to provide evidence or proof that all signatures were genuine and prevent the fraudulent procurement of names of signers to the protest. To sustain the appellees’ contention that each sheet of a protest paper must be verified by a signer of that sheet, would tend to deprive the verification of its value and put a premium upon a reckless oath. This necessarily follows since, to permit the verification by a signer of a particular sheet, who did not personally see other persons sign that sheet so as to know that the signatures thereon were genuine, would thwart both the literal meaning and the plain purpose of the statute.
We think it must be said the legislature did not use the word “paper” in the sense of “sheet,” but, rather, used it in the sense of a written document, such as a petition. This conclusion is evident from the definition of the word “paper” and from a practical consideration of the statute itself. Webster’s New International Dictionary, Second Edition, unabridged, defines “paper” as follows:
“5. A printed or written document or instrument; a writing, as a bill, note, or essay; as, a paper read before a society; specif., pi., documents providing identity, validity, authorization, etc.; as an officer’s papers.”
Webster shows “paper” and “document” to be synonymous:
“Paper as here compared, is the general term for a printed or written instrument of whatever sort; document, which may apply to anything written, printed, or inscribed, suggests esp. a source of information, evidence or proof; as, state papers; to sign a paper. . . .”
Black’s Law Dictionary, Fourth Edition, defines the word “paper” as follows:
“A written or printed document or instrument. A document filed or introduced in evidence in a suit at law, as, in the phrase ‘papers in the case’ and in ‘papers on appeal.’ Any writing or printed document, including letters, memoranda, legal or business documents, and books of account, as in the constitutional provision which protects the people from unreasonable searches and seizures in respect to their ‘papers’ as well as their houses and persons. . . .”
The word is also defined in 67 C. J. S., Paper, p. 555, to mean a document, essay or the like; a writing; any written or printed document or instrument.
It follows that each separate sheet may not be considered a “paper” within the meaning of the statute, but that each group of sheets stapled or fastened together and filed as one document must be regarded as a separate protest petition. From the standpoint of verification, each petition shall be deemed sufficient if properly verified by a qualified elector who signed the particular petition. In the instant case, the written protest contained 42 separate sheets which were stapled together forming 12 separate petitions, and each petition was verified by a signer of each such petition in the form and manner required. Since these petitions contained the names and residence of 664 qualified electors, being twice the number required by the statute to call an election, the district court erred in concluding that, as a matter of law under the admitted facts, the protest petitions were insufficient, and in rendering summary judgment for the appellees.
In deciding the case below, it is clear the district court relied upon the rationale of State, ex rel., v. Dunn, supra. The appellees do not contend, and the district court did not find, the statute applied in that case, R. S. 13-1711 (now K. S. A. 13-1711), was in pari materia with K. S. A. 12-688, here involved. The rule of statutory construction that statutes in pari materia are to be compared with each other and construed together is only applicable to statutes relating to the same subject matter. (Sutton v. Frazier, 183 Kan. 33, 325 P. 2d 338.) The Dunn case involved the sufficiency of a petition to require submission of the question of abandoning the city manager form of government in Wichita as provided in R. S. 12-1001 to 12-1020 (now K. S. A. 12-1001 to 12-1020). The statute used as a measure by the court in construing the sufficiency of that petition was 13-1711, providing procedure for the removal of public officials. The statute here involved pertains to the improvement of trafficways in cities and to protests calling for an election. The Dunn case was distinguished and virtually overruled in State, ex rel., v. City of Walnut, 165 Kan. 205, 193 P. 2d 172. That case involved the sufficiency of a petition to call a special election to determine whether an electric-light franchise should be granted. Mr. Justice Harvey wrote the opinion for the court in the Dunn case, and was a member of the court when Mr. Justice Hoch wrote the opinion for the court in the City of Walnut case, and did not dissent or specially concur. In the City of Walnut opinion it was said.
“The defendants also lean heavily upon the case of State, ex rel., v. Dunn, supra, which, it is urged, presented an analogous situation. The petitions in that case were to secure submission of the question of abandoning the city manager form of government in Wichita. The question of verification was one among a number of questions considered. The petition consisted of 298 separate sheets and was verified, but each sheet was not separately verified. It was said in the opinion that such verification did not comply with the requirements of G. S. 1935, 13-1711, which requires that ‘each paper’ be separately verified. Section 13-1711 is a statute providing the procedure for the removal of elective officers. No reason was stated in the opinion for regarding it as applicable to the statute relating to abandonment of the city form of government. Nor was there any discussion in the opinion of the doctrine of pari materia in the construction of statutes. It does not appear that any question had been raised as to whether provisions of 13-1711 were applicable. In any event, the case did not deal with the instant statute, and is not controlling here.” (1. c. 211.)
The language of 13-1711 prescribing the form and manner of verification is very similar to the language requiring verification in 12-688. However, the former requires that “each paper” be verified, while the latter uses the phrase “each such paper,” and makes one other minor distinction not here important. It is obvious the statutes do not relate to the same subject matter and are not in pari materia, and the rationale of the Dunn case may not be applied to control the construction of the statute under consideration. However, we do not rest our decision upon that distinction. We are of the opinion the Dunn case incorrectly construed the word “paper” to mean a “sheet” of paper, when it was intended by the legislature to be used synonymously with the term “written document,” such as a petition, as heretofore concluded. The construction placed upon the statute in the Dunn case erects technicalities and thwarts the legislative intent requiring verification, and, accordingly, we hold that paragraph 7 of the syllabus and the corresponding portion of the opinion on pages 193 and 194 are not correct statements of the law, and they should be and are hereby overruled.
In view of the foregoing, the judgment of the district court is reversed with directions to proceed in conformity with the views expressed herein.
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to compel the bank commissioner to issue a certificate against the bank depositors’ guaranty fund. The evidence was taken by deposition and has been abstracted. The case is before us for decision upon the facts as well as upon the law. The question to be determined is whether the transaction constituted a deposit subject to guaranty within the meaning of the bank guaranty law.
The facts, so far as it is necessary to consider them, are not seriously controverted, and are as follows:
The plaintiff is a state bank located at Dixon, Mo., a small town situated on the Frisco railroad in a farming and live-stock community about 250 miles southeast of Kansas City. Its principal correspondent banks are in St. Louis, East St. Louis and Kansas City. It carried no accounts with Kansas banks and transacted no business with them except an occasional collection item. In December, 1922, and January, 1923, its capital was $15,000, surplus $15,000, and although financially sound, it was in need of increasing its deposits. It had outstanding time certificates of' deposit bearing five per cent interest, and had $10,000 borrowed from a St. Louis bank on its demand note for which it was paying six per cent interest. Mr. C. F. Christeson was its cashier and active managing officer.
The Vernon State Bank was located at Vernon, Kan., a small town situated about 125 miles southwest of Kansas City. In December, 1922, it had a capital of $10,000, surplus, $1,800, and undivided •profits of $346.96. Arthur J. Baxter was its cashier and active managing officer. It operated under the bank guaranty law of this state. In some way Baxter got connected up with J. E. Brady, R. N. Stout and their associates, w’ho posed as investment brokers in Kansas City. Perhaps it is not toó harsh to characterize them collectively as a bunch of crooks, but it is clear that neither Mr. Christeson nor any of plaintiff’s officials- or representatives knew of that fact at the time they began the negotiations which gave rise to the controversy in this case. Baxter, Brady, Stout, Shoclcey, and other of their associates, have since been indicted in federal court for using the mails in a scheme to defraud in connection with the transactions here involved and others similar to it, and Brady and Baxter have been tried and found guilty on many counts. Beginning in 1921, or early in 1922, and continuing until after January 12, 1923, when Baxter needed money for his bank, which was quite frequently, he would take the matter up with Brady ánd his associates and some scheme would be devised to obtain it. These involved the issuance of time certificates of deposit by Baxter on the Vernon State Bank The bank books, imperfectly kept by Baxter, showed many certificates of deposit issued to Stout, Shoclcey and other associates of Brady for various amounts. Others showed up as having been issued which did not appear upon the books. Some of these were delivered to Brady and his associates to be sold or otherwise disposed of. For some of them the proceeds were received by the bank either at the time they were issued or later, but for some of them no proceeds wTere shown by the bank to have been received. Of these, some of them were returned and canceled, others were still outstanding when the bank was finally closed and taken charge of by the bank commissioner. Brady had many aliases which he used when necessary or convenience prompted their use. He and Stout officed together, and it is difficult to tell whether the communications or transactions in Stout’s name were by Stout or Brady.
In some way the officials of plaintiff learned that Stout purported to be in position to place money in banks of good standing on time deposit for six to twelve months at four per cent. There is a controversy as to how plaintiff’s officials learned of that, but we do not regard it as material. About January 1, 1923, Mr. .Christeson, acting for plaintiff, wrote to R. N. Stout at Kansas City, applying for deposits on time certificates to the amount of five or ten thousand dollars. He inclosed a copy of the last official statement of plaintiff’s bank. On January 3 Stout replied as follows:
“Thanks for your letter. At this time I am able to put out some money on time deposits of six months at 4 per cent per annum. I am reasonably sure I can use your certificate on that basis up to $7,500. And, with your cooperation, I may be able to please two concerns at one and the same time. For example: Kansas. A small bank, whose deposits are guaranteed by the state and whose statement as of December 30 is herewith inclosed, has arranged with us to handle some 6 months’ 4 per cent guaranteed C/D’s for it. You take from me $2,500 of this bank's certificate and I will undertake to handle $7,500 of yours. All transactions confidential and handled with caution and discretion. Phone me at my expense Harrison 4206 if interested.”
Inclosed with this was a letter commending R. N. Stout, signed by D. W. Ross, special deputy bank commissioner of Missouri. Ross was later prosecuted in connection with these matters, but the letter naturally gave plaintiff confidence in Stout. Also was inclosed the financial statement of “what proved to be the Vernon State Bank as of December 27, 1922, but the name or location of the bank was not on the statement. On January 4 Mr. Christeson wrote Stout as follows:
“Your letter of the 3d received, and note what you say about giving us a time certificate $2,500 of a Kansas bank, and at the same time putting with us $7,500, both to run six months at 4 per cent. This seems to be a proposition of cooperation of which we have no objection, providing, however, we know more of the institution we are to deposit with. The statement you inclose, while small, seems to be a small country bank, and while no doubt it is perfectly safe, we would like to know the age of the bank, the name of the town it is situated in, whether agriculture, mining or manufacturing, that is of what support the bank has as its clients? And also as to its officers. We would not be technical, though naturally cautious, and desire to be safe. We know of several small banks in Missouri that are perfectly safe and such arrangements would be satisfactory. On our bank and statement we ask you for full investigation. And are not jealous about it. We await your further treply.”
On January 6 Stout wrote Christeson as follows:
“It was an omission on the part of the stenographer that the statement sent you did not show name of bank. It is Vernon State, Vernon, Kansas. Three years old. No bills payable or rediscounts. It is a very high class agricultural district in Woodson county. A small town and small bank, but excellent; in fact, while it is rarely ever necessary, I would be willing to indorse their certificate. Please phone me Monday morning if interested.”
On January 4 Mr. Christeson wrote Fred Todd, cashier of the Columbia National Bank, of Kansas City, a personal acquaintance, and asked for information about Stout’s transactions. A copy of this letter is not in the record, but on January 6, Mr. Todd wrote Christeson as follows:
“The following is matter of opinion, written in strict confidence for your private use only, without guarantee or liability, and in response to your inquiry of the 4th, in regard to one Mr. R. N. Stout.
“I find that Mr. Stout is in room 720 Commerce building, sharing office with another party. Mr. Stout is not listed in the telephone directory. I went up and had a talk with this gentleman, of course not telling him from whom my inquiry was from. He tells me he is in the investment business and he at times gets hold of some ‘cheap money,’ and that he picked out a number of banks and wrote them offering to place the money on time deposit. He says, however, that he does not in any instance require the banks to put a portion of his deposit in any other bank. I asked Mr. Stout where he was doing his banking business, and after he told me I called at this bank, but could not get any information in regard to his business dealings whatever. . . . It seems to me, however, that this is an unusual transaction, and if I were you I would be particularly interested in knowing the kind of items which I received from him, and I would not issue any negotiable instruments until I knew that the items received from him were genuine and paid. Also that they were received by the party to whom they were issued.
“I am sorry that I cannot give you any more definite information in regard to this matter, but I am sure I will be glad to have you write me at any time I can serve you.
“With personal regards and best wishes, I am.”
About the same time Mr. Christeson called the secretary and treasurer of the Commerce Trust Company of Kansas City, with whom he was acquainted, and asked if the Vernon State Bank was operating under the guaranty law of the state of Kansas, and was informed that it was. On January 8, Christeson wired Stout as follows:
“We accept your proposal 3d and 6th; you may mail draft, and advise to whom the certificate is to be issued to, also instructions to mail draft to Kansas bank.”
As a result of this correspondence Stout called Christeson by tele phone and told him to make out a certificate of deposit for $7,500 to S. A. Shockey and send it to the Metropolitan Bank, Kansas City, Mo., with a draft for that amount attached, and that it would be paid, and at the same time to mail draft or cashier’s. check for $2,500 to the Vernon State Bank, and that he would receive their time certificate for like amount bearing four per cent interest. On January 9 plaintiff issued its cashier’s check, payable to the Vernon State Bank, for $2,500 and mailed it direct to the Vernon State Bank, with the following letter:
“We are inclosing you herein our check for the sum. of $2,500, which we will accept your time certificate for like amount, payable in six months, bearing 4 per cent interest. IN^ake out the certificate direct to this bank, and register same in the inclosed addressed envelope.
“This is being sent to you in accordance with an understanding with Mr. R. TST. Stout, Kansas City, Mo.
“Will you please mail us copy of your last statement.”
Under date of January 12 a certificate of deposit on the Vernon State Bank was issued by Arthur J. Baxter, cashier, to the Peoples Bank for $2,500 for six months and bearing four per cent interest. This was accompanied by letter of transmission and a statement of the bank taken from the books at the close of the business January 10. The books of the Vernon State Bank do not show a certificate issued to the Peoples Bank, but do show one issued to Christeson. There was evidence tending to show that a certificate was first issued to Christeson, which was later taken up and issued in the name of the plaintiff bank; but this was controverted, and we do not regard it as material. The Vemon State Bank cleared the cashier’s check of plaintiff through its Kansas City correspondent and received credit.
The $7,500 certificate of deposit issued by the plaintiff bank to S. A. Shockey was for six months and drew interest at four per cent. It was sent to the Metropolitan Bank at Kansas City with sight draft for $7,500 attached, and that bank was asked to wire plaintiff whether the draft was paid. It was plaintiff’s intention to stop payment on its cashier’s check sent to the Vernon State Bank if its draft for $7,500 on Shockey was not paid. Mr. Christeson understood that he could do that. Whether that was his understanding of the law or his understanding with Stout and Brady is not clear, and perhaps is not material, but he is positive in his testimony that he was making the deposit in the Vernon State Bank only upon condition and only in the event that plaintiff received $7,500 on its certificate of deposit issued to Shockey. Plaintiff’s purpose in this transaction as a whole was to get $5,000, the difference between the two items, for six months at four per cent, which was less than it was paying on its own time certificates of deposit previously issued and on money which it was then borrowing. The making of the deposit in the Vernon State Bank was only an incident of its borrowing money, and was dependent upon its receiving the $7,500 on its certificate of deposit. •
The $7,500 certificate of deposit issued by plaintiff to Shockey with sight draft attached was handled by Brady and his associates in this way: They had previously arranged for Shockey to handle it. Shockey had gone to the Metropolitan Bank and there arranged to have that bank handle this certificate of deposit, which that bank agreed to do at a named discount (the amount of this discount is not shown), and to further secure the Metropolitan Bank Shockey furnished that bank a bond executed by the Fidelity and Deposit Surety Company of Baltimore that plaintiff’s certificate of deposit would be paid at maturity. Shockey sold plaintiff’s certificate of deposit to the Metropolitan Bank, paid the discount, and furnished the surety company bond, and in that way procured the money to pay the draft of $7,500 drawn on him by plaintiff, and the Metropolitan Bank on January 10 wired plaintiff that its draft on Shockey had been paid. Brady and Stout furnished Shockey the money to pay the discount to the Metropolitan Bank and to pay the premium on the surety bond, and paid Shockey $75 for his services. Just where Brady and Stout obtained the money out of this transaction to pay Shockey and to compensate them for their own services is not clear,'but perhaps that is not of much importance. They had certificates of deposit issued by Baxter on the Vernon bank upon which no money had been paid at the time they were issued, which they were endeavoring to sell or negotiate, and it is reasonable to presume they were reimbursed out of these or from Baxter direct. Plaintiff’s officials knew nothing of the specific manner in which this was handled other than such information they would have from the correspondence and transactions hereinbefore set out.
The question arises whether this constitutes a deposit by plaintiff in the Vernon bank within the meaning of our statute. The statute in force at the time the certificate in question was issued (Gen. Stat. 1915, § 600), reads as follows:
“All deposits not otherwise secured shall be guaranteed by this act. The guaranty as provided for in this act shall not apply to a bank’s obligation as an indorser upon bills rediscounted, nor to bills payable, nor to money borrowed from its correspondents or others.” (See it as amended, R. S. 9-206.)
And section 559 provides:
“. . . It shall be unlawful for any. bank to issue its certificate of deposit for the purpose of borrowing money.”
Defendant contends that this was not a bona fide deposit by the plaintiff with the Vernon State Bank, and, second, that the transaction was a lending of $2,500'by the plaintiff bank to the Vernon State Bank, which $2,500 was in turn furnished to the plaintiff bank by S. A. Shockey for the purpose of being lent to the Vernon State Bank.
Plaintiff contends that having sent its cashier’s check to the Vernon State Bank for $2,500, which sum was received and placed to the credit of the Vernon State Bank, for which a certificate of deposit was issued, it became a depositor, within the meaning of the law. And further contends that the arrangement of plaintiff with Brady, Stout and Shockey did not change its relation as a depositor with the Vernon State Bank and the lawful holder of a time certificate of deposit issued by that bank. And further contends that irregular or fraudulent conduct of Baxter, Brady and their associates, with which plaintiff was in no wise connected and which was not known to plaintiff, could not affect its relation as depositor with the Vernon State Bank.
In states having bank deposit guaranty laws controversies have frequently arisen as to what constitutes a deposit within the meaning of the law. Many cases have arisen over the question. Our own court has had the question before it. Perhaps it is difficult to lay down a general rule, or give a. general definition of the word “deposit” that would be accurate under all the varying circumstances which have arisen or may arise; but one thing has been definitely determined — courts, in determining whether a certain transaction constitutes a deposit, are not limited to the immediate act concerned in the transaction claimed to constitute the deposit, but may, for the purpose of determining whether there is a bona fide deposit within the meaning of the statute, look into and consider all the circumstances disclosed by the evidence pertaining to the transaction. In State, ex rel. Spillman, v. Gross State Bank, 113 Neb. 119, it was said:
“The law will look through all semblances and forms to ascertain the actual facts as to whether there has been a bona fide deposit, and, if not, the guaranty fund does not protect the transaction, no matter how it may be evidenced.” (p. 120.)
Looking at this case as a whole, did the plaintiff bank make a bona fide deposit in the Vernon State Bank? The answer must be that it did not. Plaintiff and its officers knew nothing of the Vernon State Bank, had no business relations with it, and had no intention of making a deposit of any character therein. What it was trying to do was to get money at a lower rate of interest than it was then paying. Crediting plaintiff with the utmost good faith, and conceding for this purpose that its officers could close their eyes to the information received from the first letter from Stout indicating that he was hawking or peddling the certificates of deposit of the Vernon State Bank, the caution from Mr. Todd, and the unusual nature of the transaction as a whole, still the fact remains that the sole purpose of plaintiff was to negotiate a loan at a low rate of interest. Plaintiff had no intention of making a deposit with the Vernon State Bank unless the deal as a whole went through, and had an understanding from some source that it was authorized to stop payment on its own cashier’s check to the Vernon State Bank if its draft for $7,500 on Shockey was not paid. When you look at the transaction from the viewpoint of the Vernon State Bank, it is subject to even more censure. The bank, with Baxter as its manager, and Brady and his associates, were evidently conducting a wholesale plan of issuing certificates of deposit on the Vernon State Bank, in part only for the benefit of the bank, and in part for their own use. So, viewing it from either side, it lacks every element of the ordinary bona fide deposit in a bank. Plaintiff cites and relies upon Mortgage Trust Co. v. Bank Commissioner, 110 Kan. 786, 205 Pac. 610, and Bank v. Bank Commissioner, 112 Kan. 141, 210 Pac. 490, and Crummer v. Wilson, 119 Kan. 82, 237 Pac. 1036. These cases are readily distinguishable from the case before us. It will not be necessary to analyze them in detail. It is sufficient to say that we do not care to extend those decisions to a situation such as here presented.
Judgment will be entered for defendant. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action on an insurance contract-in which judgment was rendered for plaintiff, Letha Hembree, and from which defendant, The American Insurance Union, appeals.
The case was determined upon a motion for judgment on the pleadings. In her petition plaintiff alleged that on April 4, 1924, defendant entered into a contract with Maude May Yanriette, insuring her life for $1,000, and that in the certificate issued plaintiff was named as beneficiary; that the insured died on June 9, 1924; that proof of death was duly made; that there was compliance with all the terms and conditions of the contract, but that defendant had denied liability and refused payment of the claim. The defendant answered that it was a fraternal beneficiary society, organized under the laws of Ohio; that Maude May Vanriette made application for membership and insurance in March, 1924; that when the application was made and before the certificate was issued she was pregnant, and that on April 16,1924, she made and signed the following statement:
“Whereas, the undersigned has made application for membership in the American Insurance Union; and whereas, said applicant, the undersigned, is now pregnant; it is hereby understood and agreed as a condition of immediate membership 'that should this applicant, the undersigned, die from any complications arising from the present pregnancy, or become an invalid as a l’esult therefrom, the certificate of membership issued upon said application for membership shall be void, and the American Insurance Union shall not be obligated to pay any benefits whatever to the undersigned applicant, or her beneficiary, or beneficiaries, and this agreement shall be part of my contract of membership and insurance.”
It is alleged that the quoted statement was delivered to the defendant prior to the issuance and delivery of the certificate of membership, which occurred on April 22, 1924. It was further alleged that under the constitution and by-laws of the defendant, the certificate, articles of incorporation and laws of the society, the answers, statements and warranties made in the application for membership, and the medical examination, shall constitute the contract between the society and the member as well as the beneficiaries named in the certificate. It is admitted that the insured died on June 9, 1924, but it is alleged that she died from complications arising from the pregnancy which existed at the time, the application was made and-the policy executed and delivered, and that therefore no liability arose upon the contract. The certificate issued, which was made a part of the answer, provided among other things -that if the application or any part of it should be in any respect untrue, the policy would be void and the insurance forfeited. Upon admissions and averments of the answer the plaintiff moved for judgment against the defendant, which motion was sustained and judgment in favor of plaintiff for $1,000 and interest thereon was rendered.
The case turns upon the question whether or not the statement or waiver forms a part of the contract of insurance. In support of the judgment plaintiff contends that the statement of the applicant waiving benefits in case of death from present pregnancy or from complications arising from that condition, was not a part of the contract; that it consisted only of the policy, the articles of incorporation, the laws of the union, and the answers, statements and warranties made in the original application and in the medical examination. Attention is called to the laws of the union which provide specifically that these things shall constitute the contract, and further, that the certificate issued contained no exceptions on account of the pregnancy of the applicant. It did provide that—
“In consideration of the application for membership and of the warranty that each and every answer and statement made therein is full, complete and true, and of the further warranty by the applicant that they are the only answers and statements upon which this contract is made,” etc.
Plaintiff further contends that the-pleadings show that the application was in fact made in March, 1924, when the medical examination was had, and that the statement of waiver was not made until April 16, 1924, and that the certificate by its own terms excludes all other statements than those originally made. It appears, however, that the certificate was not executed until April 22, 1924, while the statement in question was made on April 16, 1924. The application, answers, statements and certificates all relate to the same subject matter, a single transaction of membership and insurance, and must be read and interpreted together. While statements were made when the insured first applied for insurance, the additional statement of waiver preceded the execution of the contract. We think that statement must be deemed to be a part of the application. In the statement the insured describes herself and signs the writing as applicant. She stated that she, the undersigned applicant, was then pregnant, and as a condition to obtaining immediate membership agreed that if her death arose from present pregnancy or she should become an invalid resulting therefrom, the certificate should be void, and no benefit should be paid to her or to her beneficiary. This recital was followed by the statement that it should constitute a part of the contract and of membership. She had not yet been accepted as a member of the union, and the statement was manifestly made to secure membership and also insurance. Her application was still pending, and she made this statement to supplement and fortify statements previously made in her unaccepted application. There was a complete understanding and agreement between the parties that there should be no obligation to pay benefits on any of the excepted grounds, and also that the agreement so made should constitute a part of the insurance contract. The contention that the agreement of waiver was not a part of the insurance contract because it was not annexed to the certificate nor specifically referred to therein cannot avail the plaintiff. The statute governing fraternal insurance does not require any particular form of contract nor state what shall constitute an application for insurance. Such organizations are authorized to enact laws, rules and regulations relating to' insurance, and as stated the laws of the union provided that answers, statements and warranties made in the application are to be regarded as a part of the contract, and in our view the statement in question constituted not only a part of the application but also of the contract itself. A case quite similar in its facts is Knights and Ladies of Columbia v. Shoaf, 166 Ind. 367. There a beneficiary certificate was issued by the society, but before it was issued the pregnancy of the applicant was disclosed and she thereupon executed a release, whereby she waived all benefits under the certificate in case of her death resulting from pregnancy. Within four months her death occurred as a result of pregnancy, and it was held that the release was a part of the contract and that there could be no recovery for a cause expressly exempted in the contract of the parties. In Fraternal Aid Union v. Miller, 106 Okla. 277, insurance was procured upon an application which contained a stipulation that the member waived all benefits in the event of death or disability resulting directly or indirectly from being pregnant when the application was made. The applicant had answered a question to the effect that she was not pregnant at the time, but three months later she died from the effects of pregnancy. The court determined that it was competent for the parties to contract that no liability should arise in case of death or disability from specified causes, and because of the agreed waiver of benefits and the answers as to pregnancy being untrue, it was held that there could be no recovery on the policy. In that case there was no question as to the waiver being a part of the application, and we think there is no substantial ground for holding that the waiver in the 'present case is not a part of the application. It follows that it was also a part of the contract under which defendant was. expressly exempted from liability.
The judgment is reversed and the cause remanded, with the direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to set aside the will of W. H. Elstob, late of Chautauqua county, because of undue influence, and, in the alternative, to construe the will. The case was tried to the court and judgment rendered for defendants. Plaintiffs have appealed only from that part of the judgment construing the will.
The portion of the will, the construction of which is in controversy, is as follows:
“I give to Cora Hull, daughter of the late Jasper N. Hull, nine thousand dollars ($9,000) in war bonds of the following description:” (Then follows a description of bonds by number, face value, the specific class of bonds, and the place where the testator subscribed for them.)
At the time the will was executed the testator owned eleven bonds of the aggregate face value of $9,000, issued by the United States government during the world war. The particular description of the bonds as given in the will was inaccurate in two respects: Bond No. 4513 for $1,000 was omitted, and bond No. 3033 for $500 was stated to be for $1,000. Had these two bonds been correctly described, the descriptions would have been complete and accurate as to bonds then owned by the testator.
Appellants contend that since bond No. 4513 was omitted from the description, and bond No. 3033 was inaccurately described, the testator died intestate as to these two bonds. This contention cannot be sustained. The bequest of $9,000 of war bonds was complete without a particular description of the bonds, and an inaccuracy in that description would not defeat the legacy (Zirkle v. Leonard, 61 Kan. 636, 60 Pac. 318), there being no controversy now as to the bonds owned by the testator at the time he made the will or as to their being the same bonds owned by him at the time of his death— except as to three bonds hereafter mentioned.
At the time of the testator’s death, nearly four years after he executed his will, he did not have three of the bonds, numbered 80107, 92489, 93490, Victory loan, of $1,000 each, described in the will, but did have the remaining $6,000 worth of bonds. He had in his account at the bank to his credit $2,021, also a note for $1,000, which was later paid to his administrator with the will annexed. The trial court held, in effect, that this money in the bank and the note, or proceeds thereof, should go to the beneficiary named in the will, Cora Hull, in lieu of the three $1,000 bonds last mentioned. Appellants contend that the bequest, being a specific legacy of war bonds which the testator did not own at the time of his death, the legacy fails to that extent. This contention must be sustained.
A legacy is said to be general when it does not direct the delivery of a particular thing, but which may be paid or satisfied out of the general assets; it is demonstrative when the bequest is of a certain sum of money, with directions that it shall be paid out of particular funds; and it is specific when it is a bequest of some definite thing. In 40 Cyc. 1869 it is said:
“A specific legacy is a bequest of some definite, specific thing, capable of being designated and identified; one which separates and distinguishes the property bequeathed from the other property of the testator so that it can be identified, and delivered to the legatee as a particular thing or fund bequeathed. Such a legacy can be satisfied only by a delivery to the legatee of the particular thing bequeathed to him, and if that thing is not in existence when the bequest would otherwise become operative the legacy has no effect.”
In 28 R. C. L. 345 it is said:
“The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the testator’s estate at the time of his death, the legacy is extinguished or adeemed, and the legatee's rights are gone. The rule is universal that in order to make a specific legacy effective the property bequeathed must be in existence and owned by the testator at the time of his death, and the nonexistence of property at the time of the death of a testator which has been specifically bequeathed by will is the familiar and almost typical form of ademption.”
See cases cited in the text, and the following: Kelleher v. Kelleher, 140 Minn. 409; Wood’s Estate, 267 Pa. St. 462; Sherman v. Riley, 43 R. I. 202; Holcomb v. Mullin, 167 Ark. 622; Burnett v. Heinrichs, 95 N. J. Eq. 112; Leighton v. Leighton, 193 Ia. 1299.
Our own cases, while not directly in point, are in accord with the authorities cited: Hamblin v. Rohrbaugh, 3 Kan. App. 131, 134; Willoughby v. Watson, 114 Kan. 82, 216 Pac. 1095; Warlick v. Boone, 120 Kan. 148, 242 Pac. 135.
Here there was a specific legacy to Cora Hull of $9,000 in war bonds, with their specific descriptions. When the testator died he had only $6,000 in war bonds. The legacy is good to the extent of the $6,000 war bonds, but is ineffectual to pass other property than war bonds.
Appellees argue that this $3,000 in bonds had been called in by the government," hence it was an involuntary change of the form of property of the testator. The record hardly affords a basis for this argument, but assuming that it does, the point is not well taken. (Ludlam’s Estate, 13 Pa. St. 188; Ametrano v. Downs, 170 N. Y. 388; and cases collected in 40 L. R. A., n. s., 554.)
Appellees argue that the $2,021 and the note for $1,000 were the proceeds of the sale of the $3,000 of bonds, and for that reason should go to the beneficiary. The record hardly supports the basis of this argument, but assuming that it does, the point has no merit. In 40 Cyc. 1919, it is said:
“A sale of personal property bequeathed or a conveyance of land devised causes an ademption, although it would be possible to follow the proceeds of such sale.”
The judgment will be modified, by affirming it as to Cora Hull’s right to the $6,000, face value, of war bonds, and reversing it as to the other property, with directions to enter judgment for plaintiffs, subject, of course, to the cost of administration. | [
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The opinion of the court was delivered by
Harvey, J.:-
This is an action for damages resulting from the violation, and to enjoin the further violation, of an alleged parol agreement in restraint of trade. The trial court sustained defendant’s motion for judgment upon the pleadings and the opening statement of counsel. Plaintiff has appealed.
Plaintiff alleged that he and defendant owned jointly a certain barber shop; that “plaintiff purchased from defendant a one-half interest in said barber shop for $1,250; that at the time . . . and as a part consideration for the money paid . . . defendant agreed orally with this plaintiff that he would never, so long as this plaintiff owned and operated the above-named barber shop, go into the barber business or barber trade in any way in the vicinity of the shop above described;” and further alleged that the sum paid was greatly in excess of the fair and reasonable value of the fixtures and equipment, and “that the additional amount paid by this plaintiff to the said defendant for the barber shop was for the business and the good will of the barber shop.” There were further allegations of the violation of the agreement not to engage in business in that vicinity and of damages resulting therefrom.
The answer admitted the sale of the one-half interest in the barber shop to plaintiff, but specifically denied that defendant at any time agreed not to go into the barber business or work at his trade, as alleged in plaintiff’s petition. There was a further plea of the statute of frauds. The reply was a general denial. In the opening statement of counsel, which followed in the main the allegations of the pleading, it was admitted that when plaintiff purchased defendant’s interest in the barber shop the same was evidenced by the following written bill of sale:
“Know all Men by These Presents, That in consideration of twelve hundred fifty and no/100ths dollars, the receipt of which is hereby acknowledged, do grant, sell, transfer and deliver unto G. A. Tong, Wichita, Kan., his heirs, executors, administrators and assigns, the following goods and chattels, viz.: The undivided one-half interest in and to three Koch white enamel hydraulic barber chairs, three combination white enamel barber wall cases, one National cash register, two electric clippers, all plumbing and equipment, barber pole, chairs, desks, and all other personal property of the College Hill Barber Shop, located at 3060 East Douglas, Wichita, Kansas.
“To have and to hold, all and singular, the said goods and chattels forever. And the said grantor hereby covenant with the said grantee that they are the lawful owner of said goods and chattels; that they are free from all incum brances; that they have good right to sell the same as aforesaid, and that they will warrant and defend the same against the lawful claims and demands of all persons whomsoever.
“In Testimony Whereof, The said grantor have hereunto set their hands this 25th day of March, a. d. 1924. (Signed) Will McArthur.”
In rendering judgment for defendant the court in effect held that in view of the writing it was not competent for plaintiff to establish by parol evidence the oral contract in restraint of trade alleged in his petition. The question before us is, Was that ruling correct? We must hold that it was. It is contended by appellant that what is commonly spoken of as the parol evidence rule does not preclude the admission of parol evidence to establish a separate, independent oral agreement made at the same time a written agreement was made. It is true, of course, parties may have a written agreement upon one subject and at or about the same time have a parol agreement upon an entirely different subject, both of which may be established by proof and enforced.
The difficulty of applying that rule to an agreement in restraint of trade such as relied upon by plaintiff here is that such an agreement in restraint of trade is never separate and independent. It is always ancillary to a contract for the sale of goods or a business. (13 C. J. 477, et seq.) It either is a part of the contract for the sale of goods or a business, or it has no validity at all. A contract for the sale of a business may include only the goods or property of the business, or it may include the goods and property of a business and the good will of the seller. Even such a contract does not include an agreement in restraint of trade. (Wessell v. Havens, 91 Neb. 426; Hebert & Damare v. Maxime Dupaty et al., 42 La. An. 343; Costello v. Eddy, 128 N. Y. 650; Zanturjian v. Boornazian, 25 R. I. 151.) Or it may include the sale of the goods and property of the business and the good will, and an agreement that the seller will not engage in the business in the vicinity for a reasonable time. When such an agreement is made, the part of the agreement in restraint of trade is incorporated in and is an essential element of the agreement for the sale of the goods and property used in the business; otherwise it has no standing. Plaintiff’s pleadings indicate that he did not have these things clearly in mind, for in one part of the petition he says that the $1,250 included compensation for the fixtures and equipment and the agreement not to again engage in business. In another part of his petition he avers that the money paid was for the equipment and the good will. The writing between the parties, admitted in the opening statement to have been executed by defendant and received by plaintiff, says the entire consideration was given for the property sold as described in the writing. In the face of this writing it is not competent for plaintiff to show that this consideration also included compensation for ancillary parol agreements.
Cases cited by appellant are not in point. It is not necessary to analyze and distinguish them.
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The opinion of the court was delivered by
Mason, J.:
Bob Jones appeals from a conviction upon a charge of rape upon a woman over eighteen years of age. His contentions are that a motion to quash the information should have been sustained, and that the evidence conclusively showed that there was no earnest resistance to the act of intercourse, and therefore not a sufficient use of force on the part of the defendant to constitute rape.
The statute defines rape in such a case as the present as “forcibly ravishing any woman of the age of eighteen years or upwards.” The information does not use the word ravish or any direct derivative. It does, however, charge that the defendant by force' and against the will of the complaining witness and without her consent had sexual intercourse with her, giving details of the assault at some length, and “did then and there, in the manner aforesaid, by means of force and violence, forcibly and' ravenously commit the crime of rape” upon her. “Ravenously” was obviously used as related to ravish, a use which may be justified by its etymology. However that may be, the information was not subject to the motion to quash. It set out all the ingredients of the offense with such clearness as fully to advise the defendant of the charge against him and to make a conviction or acquittal a protection against a second prosecution.
The complaining witness testified to this effect: The defendant took her for a short drive in his automobile. Over her pror test he insisted on driving further. She threatened to get out, and he speeded up and drove as fast as he could. She tried to make him go back and he would not. He finally stopped and tried to pull her into the back seat. She resisted, and he gave this up and pulled her out of the car. She said:
“He held that arm with his elbow and my other arm with the same hand until I could not move at all. I went to crying. I could not help myself at all. ... I tried my best to get loose, but he would not let me loose. ... I knew it would not do any good to scream because there was nobody around.”
These statements if true show resistance and lack of consent on her part. Other parts of her testimony give room for a plausible argument to the contrary. The matter was a fair one for- the determination of the triers of the facts. This court has long since repudiated the view that resistance to the utmost limit must be proved to warrant a conviction of rape. (State v. Ruth, 21 Kan. 583; State v. McLemore, 99 Kan. 777, 164 Pac. 161.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On August 31, 1921, James Miller brought an action against the Viola State Bank seeking a recovery on two causes of action. He died during the litigation, and his administratrix was substituted as plaintiff. The bank was closed on October 20, 1921, and a receiver, subsequently appointed, has been made a defendant. On each cause of action a preferred claim was asserted and allowed. The receiver appeals, and contends not only that the claims are not entitled to a preference, but that they do not constitute any charge whatever against the bank or its assets. For convenience of statement the original claimant will be spoken of as the plaintiff.
The first cause of action is based on these facts: The plaintiff, having $1,300 on deposit in the bank, drew checks for that amount payable to' the bank and gave them to the cashier to buy government bonds for him; the checks were charged against the plaintiff’s account, but so far as he could learn no bonds were ever purchased, and he never received anything for his money.
The second cause of action is based upon the fact that the plaintiff, having purchased elsewhere a government bond for $1,000, left it with the cashier for safe-keeping by the bank, and has never been able to recover it or its proceeds or value. The cashier absconded October 4, 1920.
With respect to the latter cause of action the receiver makes this argument, which is also urged as applying in principle to the other as well:
The bank’s relation to the bond left by the plaintiff with the cashier was that of a gratuitous bailee. It was not liable for the theft of the bond by the cashier unless it had failed to use proper diligence to ascertain whether he was honest, and otherwise to guard against such a loss. On this issue there was no evidence either way. If the cashier stole the bond (as the record seems to show) he did not do so in his character as cashier, but personally; the act was not done in the course,of the performance of his official duties and the rule of respondeat superior does not apply.
This contention in its general scope is supported by much au thority. (3 R. C. L. 562, 564; 7 C. J. 643, 644, note f; 6 C. J. 1123, note 79; 1 Morse on Banks and Banking, 5th ed., § 102, e, h, § 201.) In a carefully considered case it was said:
“. . . The cases hold that the act of the cashier by which he appropriates exclusively to himself a gratuitous special deposit in the bank, is not an act done in the bank’s business and within the scope of his employment. The custody of the deposit implies no act to be done, but only a mere continuance of possession until a return of the property is demanded. The cashier had nothing to do about it except suffer it to remain in a safe place of deposit. Consequently, in taking it to himself he is said to ‘step aside’ from his employment to do an act for his personal gain, regardless of the business for which he was engaged. Such an act is lacking both irt the rendition of, and in the intent to render, any service to the employer. The cashier does not, as a matter of fact, act with the bank’s authority, and furthermore does nor, essay or even profess to act in its behalf. He represents nobody but himself. He throws off all allegiance to his master, and takes the part of a common enemy to all concerned. He becomes the same as a stranger from without who by robbery, burglary or stealth, deprives the bank of a special deposit; and the authorities hold that the bank is not chargeable with such a loss, in the absence of gross negligence, but is liable if grossly negligent [citing cases]. Such a fraud, by a well-selected servant duly supervised, is not to be imputed to the bank as its own fraud. The bank cannot be said to have stolen when there is on its j)art no participation in the theft, no appropriation and no intent to appropriate the property.” (Merchants Bank v. Guilmartin, 88 Ga. 797, 801.)
We think this reasoning, and the general rule in support of which it is advanced, are inapplicable to the facts of the present case. Here the cashier was not a mere servant. He was not only an officer of the bank, but for several years had been its manager, the only person in charge, the person “transacting all of its business” and running it “simply as if he was the owner.” It was for him to determine in behalf of the bank just where the bond should be kept, how it should be safeguarded, and what steps should be taken in regard to it. If he had by a blunder delivered it to the wrong person the bank would have been liable. If he did the same purposely its liability could hardly have been less. If by a reckless exposure of the bond he had caused its loss by the theft of some one else the bank would clearly have been liable to the owner. If he had gone further and connived at such a theft, his wrongful intent could scarcely have lessened the bank’s responsibility. His duty to the bank was to care for the bond — to handle it in such manner that it would be forthcoming when demanded. He did not do this. He handled it so that its return by the bank became impossible. He violated his obligation to the bank, and at the same time the bank through him violated its obligation to the plaintiff. The bank is liable not because he committed a crime, but because he failed in the duty which as the representative of the bank he owed the plaintiff.
The act of the cashier and a clerk in extracting a part of the contents of a keg of specie left with a bank for safe-keeping has been held not to have been that of the bank, but in that case the looters were not themselves charged with the care or control of the coin. (Foster & al., Executors, v. The Essex Bank, 17 Mass. 478.). It was mentioned in the .opinion that the directors represented the bank (p. 508), and that “if the cashier had any official duty to perform relating to the subject, it was merely to close the doors of the vault, when banking hours were over.” (p. 511.)
In an English case (which cites and quotes from that just referred to), where a bank was held not liable for a theft of a special deposit committed by its cashier, the stolen debentures were in a box to which the customer had access and of which he kept the key, and which was placed with others in a strong room of which the cashier had one key. The manager and a director, rather than the cashier, who was also the accountant, appear to have been the chief executive officers. (Giblin v. McMullen, 16 E. R., Reprint, 578.)
An intimation that the doctrine of the two cases just referred to is obsolete appears to be intended by this language of the federal supreme court, which is followed by descriptions of the Massachusetts and similar cases as illustrative of the proposition:
“The doctrine of exemption from liability in such cases [that is, those involving the liability of gratuitous bailees] was at one time carried so far as to shield the bailees from the fraudulent acts of their own employees and officers, though their employment embraced a supervision of the property, such acts not being deemed within the scope of their employment.” (Preston v. Prather, 137 U. S. 604, 609.)
However, an instance of its recent application is to be found in Weissburg v. People’s State Bank of N. K., 284 Pa. 260, where a bank was held not liable for the conversion by its president of certificates left for safe-keeping in his control, his custody being assumed to be that of the bank. But it is to be noted, as has already been indicated, that in the Massachusetts and English cases the delinquent official was not definitely charged with the supervision of the property.
If it should be assumed that the bank could not be held liable unless upon the ground that it failed to exercise sufficient diligence to guard against such a loss, the judgment could still be upheld. Where in such a case the bank has the burden of proving that it used due diligence, the requirement is held to be met only by showing that it not merely used sufficient care in selecting a cashier, but that it exercised some degree of supervision over him, to ascertain whether he should be retained; that “during the whole term of the bailment, it had exercised at least a slight supervision over its cashier, and that in doing so no indications of dishonesty, or other reason for distrusting him, had appeared.” (Merchants Bank v. Carhart, 95 Ga. 394.) The majority rule is that the burden of showing want of care is on the bailor, although a number of courts hold to the contrary. (Note, 26 A. L. R. 232, 238.) Assuming the burden here to have been on the plaintiff to show the bank failed to use due care as to the supervision of its cashier, we think the requirement was met by the testimony that for a number of years he managed the bank, being the only person in charge there, transacting all its business and running it simply as if he were the owner — testimony which may of course be considered in its most favorable aspect, with all permissible inferences against the defendants.
In a somewhat analogous situation it has been said:
“The directors had substantially surrendered to Layton [the cashier] the performance of their duties, and permitted him to conduct the affairs of the bank almost without interference, supervision or oversight on their part. They had created a practically one-man power, and lodged that power in him. He was thus enabled to carry on his fraudulent operations without their actual knowledge. By the exercise of ordinary diligence on 'their part they would have obtained knowledge of his irregularities. . . . The law requires of directors the exercise of good faith and ordinary diligence and care in the performance of their duties. These duties include that of reasonable oversight and supervision.” (Lowndes v. City National Bank, 82 Conn. 8, 16.)
Whether the negligence of the bank in this respect, if it existed, was of such degree as to form a basis for liability- — that is, whether the bank exercised due care in view of all the circumstances— is a question of fact to be determined like any other — “the so-called distinction between slight, ordinary and gross negligence over which courts have quibbled for a hundred years can furnish no assistance.” (Maddock v. Riggs, 106 Kan. 808, 190 Pac. 12.) “But gross negligence in such cases is nothing more than a failure to bestow the care which the property in its situation demands; the omission of the reasonable care required is the negligence which creates the liability; and whether this existed is a question of fact for the jury to determine, or by the court where a jury is waived.” (Preston v. Prather, supra, p. 608.)
- With respect to the cause of action based upon the plaintiffs checks given to buy bonds and not accounted for in any way, we see no room to doubt the bank’s liability. The most favorable view for the defendants would be that the plaintiff’s money became a special deposit, subject to the same rules as the b.ond already considered, in which case this part of the judgment should be upheld on the same grounds as the one first considered.
We hold, however, that the plaintiff is not entitled to a preferred claim, for we find no evidence that the assets which reached the hands of the receiver were in any way increased by the fraud of which the plaintiff was the victim. The circumstance that the bank from a period prior to the plaintiff’s deposits had assets of over $40,000, which passed into the hands of the receiver, does not tend to show that the plaintiff’s money or its proceeds or results became directly or indirectly a part of the fund to be distributed, particularly as the cash and exchange that came to the receiver was but $835.92.
The judgment as to the allowance of a general claim against the bank and its assets is affirmed; to the extent of its allowing a preference it is reversed.
Burch, J., dissents from the first paragraph of the syllabus and the corresponding part of the opinion. | [
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The opinion of the court was delivered by
Mason, J.:
The statute provides for the submission to the public utilities commission (now the public service commission) for its inspection and approval, by any. person who desires to construct or repair, or who has already constructed, a dam over a navigable river of this state, of plans and specifications thereof, upon the approval of which the construction of the dam shall be authorized, or, if already in existence, shall become established, the right to maintain it being confirmed. (R. S. 68-1502, 68-1503.) The sections of the statute referred to, are printed in full following this opinion. The owners of the dam across the Kansas river at Lawrence presented to the commission plans and specifications for repairs, additions and betterment thereto. A committee of engineers was appointed by the commission to investigate and report upon them. The committee made a favorable report. The commission denied the application for the approval of the plans and specifications. The applicants bring this proceeding, seeking by mandamus to require the commission to approve them. An alternative writ has been issued, reciting that the plans and specifications are not subject to objection and that the commission had no valid objection to them; that from an engineering standpoint they were proper and correct in all respects ; that they were so prepared as to avoid all damages and injury to anyone; that a request for findings of fact was refused; and that the refusal of the commission to approve them was unreasonable and arbitrary and made without reference to their merits. The case has been argued upon a motion of the commission to quash the writ — in effect a demurrer.
The commission’s contention is that it has full discretion to grant or refuse the approval asked, and its conduct in that regard is not subject to judicial control. It suggests that the recitals of the writ that its course has been arbitrary and unreasonable is a mere conclusion of law and should be given no effect.
We think the allegations in question are as specific as the nature of the case admits, or at all events are sufficiently concrete to require that they be treated as assertions of fact. To say that the plans were not subject to objection, that the commission had no valid objection to them, that from an engineering standpoint they were proper and correct, and that they avoided injury to everyone, was to present issues in these respects pertinent to the controversy and susceptible of proof or refutation by evidence. The statement that the applicants’ request for findings of fact was denied has some bearing on the matter. The statute does not in terms require the making of findings, yet in a matter of such obvious importance a refusal to indicate the grounds of the decision, where the circumstances alleged do not readily suggest a just reason, tends in some degree to support the assertion that none existed. The course of conduct fairly to be expected of a body to which is committed the regulation of such extensive interests is not to be measured by what is expressly commanded. Of the failure of a commerce commission for two years to take action in a rate case it has recently been said:
“For this apparent neglect on the part of the commission no reason or excuse has been given; and it is just to say that, without explanation, its conduct evinces an entire lack of that acute appreciation of justice which should characterize a tribunal charged with the delicate and important duty of regulating the rates of a public utility with fairness to its patrons but with a hand quick to preserve it from confiscation.” (Smith et al. v. Illinois Bell Telephone Company, 46 S. Ct. 408, 409.)
In a proceeding where mandamus was invoked to compel a probate judge to issue a permit for the sale of intoxicating liquor this court said the refusal of the judge to give his reason for not granting the application was immaterial. (Stanley v. Monnet, 34 Kan. 708, 9 Pac. 755.) The language of the opinion, however, does not adequately indicate what it was that the judge declined to furnish. The record shows the demand with which he refused to comply to have been that he state his reasons for believing the applicant unfit to be granted a permit, the evidence on which he founded his belief, and the names of the persons who gave him information on the subject.
The statute does not explicitly state under what conditions the commission shall grant and under what conditions it shall reject such an application as that here involved. It does not say in so many words that it shall grant the application if that is the course that approves itself to its judgment after a full consideration of the matter,'but such a mandate is as much a part of the law as though it were explicitly stated.
“Even, where an ordinance in terms merely says that a certain thing shall not be done without a permit from a designated officer, it is often interpreted as meaning that the officer is to grant the permit unless in his honest judgment reasonably exercised the interest of the public will thereby be put in jeopardy, a construction rendering it unobjectionable on constitutional grounds. (Lieberman v. Van De Carr, 199 U. S. 552.)” (Service Oil Co. v. City of Marysville, 117 Kan. 514, 516, 231 Pac. 1031.)
The federal case cited in the foregoing quotation involved the validity of an ordinance forbidding the keeping of milk for sale without a permit from the board of health. The ordinance did not state under what circumstances a permit should be issued or under what withheld. The supreme court of the United States held it valid because the state court of last resort had interpreted it as authorizing the exercise of legal discretion, but not of arbitrary conduct on the part of the board of health. While the opinions of the state courts (80 N. Y. Supp. 1108; 175 N. Y. 440) deal rather briefly with this phase of the matter, they clearly show the ordinance was regarded as meaning that the board was to grant or refuse permits as the reason of the case should require, without discrimination where the applicants were similarly situated. Ordinances vesting discretion in public officers to issue or refuse permits without laying down a definite rule by which they are to be governed have often been held void as giving countenance to arbitrary action. (Note, 12 A. L. R. 1435.) But a rule sufficiently definite for the purpose is often inferred from general provisions of the ordinance, or from the nature of the case. (Same note, pp. 1445-1452.) So far as the constitutional feature of the matter is concerned a distinction is sometimes drawn with respect to the issuance of permits to engage in business according to whether the business is of an ordinary' character or one which may be engaged in only as a matter of privilege, and is subject to entire suppression. (Same note, p. 1453.) We need not consider, however, whether the statute here involved would be invalid, if construed to authorize the commission to reject the plans and specifications submitted to it merely as a matter of its own pleasure or desire. Regardless of any constitutional question, it is obvious that the intention of the legislature was that the commission should act upon its judgment of the merits of the case and not upon its own will, notwithstanding the matter rests in its discretion:
“There is nothing alarming in the term discretionary power. It has a legal meaning, with safe limitations. The intendment of a- law which grants it, whether expressly or by implication, is that the discretionary decision shall be the outcome of examination and consideration; in other words, that it shall constitute a discharge of official duty, and not a mere expression of personal will. An arbitrary disapproval of a license, for example, determined upon without an examination of relevant facts, and expressing nothing but the mood of the officer, would not be, in contemplation of law, an exercise of the power granted. It would constitute, on the contraiy, a neglect and refusal to perform his official functions, and would expose him to the interference of this court by the writ of mandamus.” (U. S. ex rel. Roop v. Douglass, 8 Mackey 99, 109, quoted in substance in note 27, L. R. A., n. s., 1195; 15 R. C. L. 306, 309.)
Before the passage of the “bone dry” law the statute provided that unless certain facts were found to exist the probate judge should not issue a permit for the sale of intoxicating liquor for restricted purposes, while if these facts did exist he might issue it or not, “in his discretion.” (Laws 1887, ch. 165, § 1.) In construing the statute this court, although explicitly holding that all sales of liquor could be suppressed, said:
“The discretion vested by the statutes of this state in the probate judge over the subject of granting and refusing permits to sell intoxicating liquors is not an option to act according to prejudice or caprjice, but it is a judicial discretion, to be exercised only with reference to the facts and circumstances of each case, after a full hearing. . . . This court, however, does not admit that the power vested in the probate judge to grant or refuse permits is an arbitrary one. . . . The legislature did not intend that the probate judge should be guided in any particular by his own will instead of the facts developed at the hearing. . . . While, therefore, in the preparation of the statute, the words vesting discretion in the probate judge were placed after words requiring that the averments of the application must be proved to his satisfaction, they nevertheless do not open to him an additional field of option, in which prejudice or caprice may rule. The discretion is still a legal one, to be exercised only upon the facts and circumstances of the case after a full hearing.” (State v. Durein, 70 Kan. 13, 38-39, syl. ¶ 4.)
The public service commission may in its discretion approve or disapprove plans and specifications of the character submitted to them. But its action must be the result of its exercising its best judgment as to the merits of the application,.as arrived at after a full consideration, and may not lawfully be determined by its mere volition or otherwise arbitrarily or unreasonably. The allegations of the alternative writ relating to the commission’s decision having been made arbitrarily are sufficient to raise an issue of fact on that point, and therefore it states a cause of action. If all the averments of the writ are true, a fair exercise of judgment in the decision of the matter presented to the commission would necessarily lead to the approval of the plans and specifications. “The great weight of authority is to the effect that an exception to the general rule that discretionary acts will not be reviewed or controlled exists when the discretion has been abused.” (38 C. J. 598. See, also, 37 C. J. 240.)
The argument in behalf of the commission is in a large degree addressed to upholding its authority to determine for itself the questions of fact involved in the application for its approval of the plans and specifications. This argument would be pertinent if we accepted the view that the allegations concerning arbitrary and unreasonable conduct were naked conclusions of law presenting no issue. But inasmuch as we hold these allegations must be treated as those of fact, and are considering the matter only as presented upon the face of the writ, the vital question is the authority of the commission to deny the application without regard to its merits.
A suggestion is made by the commission that the statute relied upon by the plaintiffs is unavailable because it does not apply to a part of a river lying within or alongside of, or flowing through a drainage district. (R. S. 68-1505.) The plaintiffs, however, tender an amendment alleging that such condition does not exist here.
The appropriateness of mandamus as a remedy is questioned. The issue presented being one' of the arbitrary refusal to perform what is alleged to be a duty required by the facts, we regard mandamus as the most direct and adequate method of determining it.
A reference in the argument to the matter of possible loss to riparian owners by the proposed changes in the dam prompts us to say that an approval of the plans and specifications by the commission could not impair the right of such owners to compensation for any property rights thereby invaded.
The motion to quash the alternative writ is overruled. | [
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The opinion of the court was delivered by
Mason, J.:
A petition was presented to the board of commissioners of Leavenworth county for the hard-surfacing of a road running southwesterly from a point on the western limits of the city of Leavenworth near the west end of Spruce street to the' western boundary of the county. On September 8, 1925, the board allowed the petition, finding the improvement asked to be of public utility and making appropriate orders as to survey, map, plans, specifications and estimates. Later a petition was presented for the improvement of a road from the point where Ohio avenue, which lies about a quarter of a mile south of Spruce street, meets the western boundary of the city, to a point known as Withers’ corner on the road first mentioned, a distance of about half a mile. On February 2, 1926, the board made an order undertaking to substitute the road described in the second petition for that part of the road described in the first petition, running from Withers’ corner to Spruce street. The state, on the relation of the attorney-general, brings this proceeding in mandamus to require the commissioners to proceed with the improvement of the road described in the first petition. The defendants have filed an answer to the alternative writ and a hearing has been had upon the plaintiff’s motion for judgment on the pleadings.
The defendants undertake to justify their course upon, the principal ground that the portion of the road from Withers’ corner to Spruce street has not been approved by the state highway commissioner, supplemented by the consideration that federal aid cannot be obtained for the improvement on this part of the route.
The facts are not established by the pleadings with sufficient definiteness to enable an order to be made at this time, but some of the legal questions upon which the parties are not in entire accord will be now determined, and such determination may make further action of the court unnecessary.
In such a case as the present the statute requires the map, profile, plans, specifications and estimates to be submitted to the state highway engineer for approval, unless they were prepared by him or under his supervision, and to be filed with the county clerk for inspection by bidders and others after being approved by him. The answer to the alternative writ alleges that the plans of the road in question as originally petitioned for were submitted to the state highway engineer for approval and for “what is known as a field check thereon”; that he and an engineer from the bureau of public roads (which has supervision of federal aid), although they approved and field checked the rest of the plans, refused to field check the part covering the road from Withers’ corner to Spruce street; and that this notation was made thereon: “These plans are not checked back of station 156, because that part is not on the route check.” The answer further alleges that “after the state highway engineer had refused t» field check the plans from Withers’ comer to Spruce street that John Hand, a member of the board of county commissioners of Leavenworth county, Kansas, asked for a second route check of the road plans from Withers’ corner to Spruce street, and that upon his request the state highway engineer, or his duly authorized representative, and an engineer from the bureau of public roads came to Leavenworth county and again inspected said road and refused to change their first recommendation of the location of the road.”
From this it appears that the state highway commissioner has not approved the plans, etc., of the road from Withers’ corner to Spruce street, and that he has indicated a preference for the route by way of Ohio avenue; but the answer does not show that he has definitely refused to .approve them. The commissioners, having allowed the petition as first presented to them, have no authority to make a substantial change in the route as there laid down, even upon a further petition. (Heidel v. Geary County, 106 Kan. 382, 187 Pac. 740.) It is their duty to proceed with the work as originally ordered unless the state engineer shall definitely disapprove the plans, which should again be submitted to him for approval or rejection.
The defendants contend that they are not authorized to hard-surface the road from Withers’ corner to Spruce street without the approval of the secretary of agriculture. This contention is based on a statement in the petition for the road that the improvement shall be "in accordance with the plans, specifications and estimates approved by the state highway engineer (and by the United States secretary of agriculture, if federal aid is granted for this improvement) .” The defendants argue that the road petitioned for is to be treated as a unit, and if federal aid is granted for any part of it, then, by virtue of the provision of the petition just quoted, no other part can be constructed without the approval of the secretary of agriculture. We think, however, the fair construction of the language in question is that the approval of the secretary of agriculture is necessary with respect to any portion of the road for which federal aid is received, but not with respect to any other portion. The petition as allowed by the commissioners does not make the improvement of the road dependent upon receiving federal aid, and the lack of it would not be a reason for abandoning the project or changing the route. Whether or not a road shall be constructed from Withers’ corner by way of Ohio avenue of course does not enter into the matter here in controversy. Nor do the relative advantages of the two routes enter into the case.
The defendants suggest a number of questions of practice which we need not discuss. Any irregularities of procedure which they point out, being capable of amendment, are regarded as unimportant.
Judgment will not be rendered on the pleadings at this time. Jurisdiction of the case is retained, and its further disposition will depend upon developments as indicated in the opinion. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover tuition under the Barnes high-school law for pupils who had resided in Stafford county and who had attended the Byers rural high school in Pratt county. Judgment was rendered in favor of the defendant on a demurrer to the evidence of the plaintiff, who appeals.
There was evidence which tended to prove that both Stafford and Pratt counties were operating under the Barnes high-school law; that a number of pupils with high-school qualifications lived in Stafford county in a community where no high school existed and which community was not convenient of access to a high school then in operation in that county, and in which there were not a sufficient number of pupils of high-school advancement to maintain another high school, and attended the Byers rural high school in Pratt county; that the county superintendent of Pratt county approved the attendance of the pupils from Stafford county in the Byers rural high school and audited the claims of that school against Stafford county for tuition; that the county superintendent of Stafford county refused to approve the claims, and that the board of county commissioners of that county refused to pay the claims.
The plaintiff relies on section 72-3014 of the Revised Statutes of 1923, and cites. Byers Rural High School v. Stafford County Comm’rs, 121 Kan. 287, 246 Pac. 681. The defendant contends that the plaintiff must rely on section 72-3013 of the Revised Statutes, and cites Board of Education v. Leavenworth County Comm’rs, 119 Kan. 117; 237 Pac. 1055.
Section 72-3014 of the Revised Statutes reads:
“That tuition shall be free in all high schools established pursuant to Laws 1905, chapter 397, as amended by later enactments to pupils residing in the county where such high-school law is in force: Provided, That such pupils shall present to the high-school authorities an entrance certificate, signed by the county superintendent of public instruction, certifying that such pupil has completed the course of study prescribed by the state board of education for the pupil below the high school, or who shall pass such entrance examination as the high-school authorities may require: Provided further, That when pupils reside in an adjacent county that does not operate under the provisions of such high-school law established pursuant to Laws 1905, chapter 397, as amended by later enactments, the board of county commissioners of such adjacent county in which the pupils reside, shall, upon recommendation of the county superintendent of public instruction having jurisdiction over the high school where said pupils attend, pay the tuition of $2 per week or fraction thereof, for such pupils to the district in which the high school is located: Provided further, That this act shall apply to all high-school pupils residing in any adjacent county that attend high school established under Laws 1905, chapter 397, as amended by later enactments: Provided further, That the said county commissioners shall pay such tuition from the general fund of the county where such pupil or pupils reside.”
In Byers Rural High School v. Stafford County Comm’rs, 121 Kan. 287, an action in which the Byers rural high school in Pratt county sought to recover from Stafford county tuition for high-school pupils from Stafford county, the court stated:
“That both Pratt and'Stafford counties are operating under the Barnes high-school law; that duly accredited high schools exist in both of the counties; that plaintiff is in Pratt county, and that the Antrim rural high-school district is in Stafford county; that the pupils, nine in number, reside in a community of Stafford county remote from a high school, and in which there are not a sufficient number of pupils of high-school advancement to organize and maintain another high school; that the pupils had completed the course of study prescribed by the State Board of Education which entitled them to entrance in a high school; that they did attend the high school in the plaintiff district during the period for which tuition is claimed; that the county superintendent of Pratt county recommended to the commissioners of Stafford county that the bills for the pupils from Stafford be paid.”
Sections 72-3013 and 72-3014 were quoted. The court further said:
“In the statutes quoted it is made clear that the legislature intended that all pupils who have advanced to high-school standards, wherever they may reside, are entitled to high-school privileges, free of cost to them. The second section quoted is only a broadening of the provisions of the first one [R. S. 72-3013], so that the tuition should be actually free in all high schools.” (p. 289.)
It was there held that payment should have been made on the recommendation of the county superintendent of Pratt county.
In Board of Education v. Leavenworth County Comm’rs, 119 Kan. 117, 237 Pac. 1055, the court said:
“Before a board of education of a city situated in a county operating schools under the Barnes high-school law can.recover, from the board of county commissioners of another county operating schools under the same law, tuition for pupils coming from the latter county, the board of education must show that the county superintendent of the county against which the action is brought recommended the payment of the tuition.”
That action was commenced in 1922, and was for tuition that had accrued during the five years previous to that time. The decision there was based on section 72-3013 of the Revised Statutes. Section 72-3014 had not then been enacted and was not in any way involved.
The controversy must be determined by a construction of sections 72-3013 and 72-3014 of the Revised Statutes. The first part of section 72-3014 reads:
“That tuition shall be free in all high schools established pursuant to Laws 1905, chapter 397, as amended by later enactments to pupils residing in the county where such high-school law is in force.”
The first proviso which follows immediately after the language quoted is not involved in this controversy and need not be considered: There is no question about its meaning, and it does not assist in solving the problem presented to the court at this time.
The second proviso reads:
“Provided further, That when pupils reside in an adjacent county that does not operate under the provisions of such high-school law established pursuant to Laws 1905, chapter 397, as amended by later enactments, the board of county commissioners of such adjacent county in which the pupils reside, shall, upon recommendation of the county superintendent of public instruction having jurisdiction over the high school where said pupils attend, pay the tuition of $2 per week or fraction thereof, for such pupils to the district in which the high school'is located.”
The statute, thus far, means that all high-school pupils residing in a Barnes high-school county may attend high school free of charge; that all high-school pupils who reside in an adjacent non-Barnes high-school county may attend high school in a Barnes high-school county free of charge to the pupils; and that the county of the residence of the latter class of pupils shall be liable for the payment of their tuition to the high school attended on the recommendation of the county superintendent of the county in which the school attended is situated.
Then comes the third proviso, which reads: ■
“Provided, further, That this act shall apply to all high-school pupils residing in any adjacent county that attend high school established under Laws 1905, chapter 397, as amended by later enactments.”
This extends all the provisions of all of the act to all high-school pupils residing in all adjacent counties, whether operating under the Barnes high-school law or not, where the pupils attend a high school that is operated under that act. The effect of the third proviso is to extend the conditions of the second proviso to pupils residing in one Barnes high-school law county so that they may attend a Barnes high school in an adjacent county. It follows that if the county superintendent of the county in which the high school attended is located recommends the payment of tuition, the county commissioners of the county of the residence of the pupils must pay that tuition. The county superintendent of the county in which the pupils reside has nothing to do with recommending the payment of the tuition.
Section 72-3013,.a part of the Barnes high-school law, should be examined. It in part reads:
“That whenever a community is remote from or is not convenient of access to a high school already in operation, and there is not a sufficient number of pupils of high-school advancement in such community to organize and maintain another high school, the board of county commissioners shall upon recom mendation of the county superintendent of public instruction, pay the tuition, not exceeding two dollars per week or fraction thereof for such pupil of high-school advancement in the most convenient high school to such community, but within the county or in the county adjacent thereto.”
In Board of Education v. Leavenworth County Comm’rs, 119 Kan. 117, 237 Pac. 1055, it was held that tuition must be paid on the recommendation of the county superintendent of the county in which the pupils resided. Under that construction, sections 72-3013 and 72-3014 conflict with each other. Which is the controlling statute? Section 72-3014 is the last expression of the legislature, and for that reason it must control.
Section 72-3013 states when a high-school pupil living in one Barnes high-school county may attend a high school in another Barnes high-school county. Section 72-3014 provides for the payment of the tuition of such a pupil, and states who shall recommend its payment.
The court concludes that under the evidence of the plaintiff, if true, Stafford county must pay tuition on the recommendation of the county superintendent of Pratt county. This conclusion is in harmony with and is supported by Byers Rural High School v. Stafford County Comm’rs, 121 Kan. 287, 246 Pac. 681.
The demurrer to the evidence of the plaintiff should have been overruled. The judgment is reversed, and the cause is remanded to the trial court for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Harvey, J.;
This is a suit to enjoin the sheriff of Sedgwick county from the sale of certain real estate under an execution, for the reasons, generally speaking, (1) that the real property levied upon belonged to plaintiff and not to the judgment debtor, and (2) that the judgment upon which the execution was based had ceased to have force and effect, and gave no basis for an execution. The action was tried to the court, judgment rendered for plaintiff, and defendant has appealed.
The matter, so far as here presented, depends upon whether the judgment had ceased to have force and effect sufficient to be the basis of an execution. Possibly related to this is the question whether the execution was issued upon the request or praecipe of any one having authority to do so. The evidence pertaining to this question is not seriously controverted, and may be summarized as follows: The Motor Securities Company was organized as a corporation under the laws of West Virginia in 1912. On October 20, 1916, upon application previously made, it was authorized to do business as a corporation in the state of Ohio, having its principal place of business at Columbus,, Ohio. On November 15, 1917, in an action then pending in the district court of Sedgwick county, Kansas, the Motor Securities Company obtained a personal judgment against J. P. Ternes for $639.32. On November 14, 1918, an execution was issued upon this judgment by the plaintiff, but no property was levied upon. On November 7, 1918, upon a creditor’s bill filed in the court of common pleas of Franklin county, Ohio, in which proceeding the Motor Securities Company voluntarily entered its general appearance, an order, was made appointing a receiver for the Motor Securities Company. This receiver was directed by the court to take possession of all of the assets of the Motor Securities Company and administer them as the court directed. These assets consisted largely in notes and claims against various persons and corporations throughout the United States. On April 2, 1919, the license of the Motor Securities Company to do business in Ohio was revoked and has never been reinstated. On January 11, 1922, the receiver reported that he had sold and administered all assets of the corporation except claims and notes then uncollected, and that he had an offer of $100 from Leo Lindenberg for all the remaining assets; and on that date the court made an order that the receiver sell all the remaining assets of the corporation to Leo Lindenberg for $100, which sale was effected and the receivership closed. Since this sale the corporation has exercised no corporate activities, but there never has been a formal surrender of the charter or dissolution of the corporation in West Virginia.
On November 14, 1923, upon the prsecipe of the attorneys who represented the corporation at the time judgment was obtained and the previous execution issued, and as attorneys for the plaintiff, the execution in question was issued. It seems that the Motor Securities Company was at all times what may be termed a one-man corpora-' tion, in that Leo Lindenberg owned all of the stock except qualifying shares for other officials.
Upon the application for a restraining order in this case the plaintiff raised the question of who caused the execution sought to be enjoined to be issued, and called as a witness the attorney who had signed the prsecipe. He testified that he represented Leo Lindenberg and had caused the execution to be issued at his request. Upon the final hearing before the court he testified that he and his firm also represented the Motor Securities Company in so far as such company had any interest in the matter.. The trial court concluded the judgment had become dormant when the execution of November 14, 1923, was issued and enjoined proceedings under it.
In support of the judgment of the court below it is contended by appellee that the situs of the judgment in favor of the Motor Securities Company against J. P. Ternes was in West Virginia, the plaintiff in that case being a corporation organized and existing under the laws of West Virginia. It is further contended that the Ohio court had no jurisdiction to appoint a- receiver generally for the assets of a corporation domiciled in West Virginia; that such receiver could be appointed only for assets in Ohio, hence that the sale by the receiver of the Ohio court of all the remaining assets of the Motor Securities Company did not and could not include a judgment rendered in Kansas in favor of that company, for the reason that its situs in legal contemplation was in West Virginia. Even if this court should agree with that contention it would not support the judgment of the trial court, for then there would be no sale of this judgment by the receiver- — it would still belong to the Motor Securities Company, the West Virginia corporation, and that company has never ceased to exist, as shown by the corporate records of West Virginia. The execution sought to be enjoined was issued upon the praecipe of attorneys who had always represented that company in this case, and, prima facie at least, certainly had authority'to do'so. But it is argued this view cannot be taken, for the authority of the attorney to represent the Motor Securities Company was put in question under R. S. 7-107, and on being interrogated as to whom he represented, he answered that he represented Leo Lindenberg, the purchaser of the judgment from the receiver of the Ohio court; and although that testimony was later amplified to include the claim that he also represented the corporation, it is argued that the trial court took, as the basis of its judgment, the evidence first offered on that subject. So considered it becomes necessary then to determine whether the Ohio court in this case had jurisdiction to direct the sale of this judgment. It will be noted that after its admission to do business in Ohio, at any rate, the general offices of the Motor Securities Company were at Columbus, Ohio, and when the creditor’s bill was brought against it in 1918 it appeared by its president vol untarily and entered its appearance generally in writing, and thereby submitted itself to the jurisdiction of the court, in so far at least as it was possible for it to do so. The court assumed to have jurisdiction of all of the assets of the corporation wheresoever situated, directed the receiver to take charge of and administer them, and that was done, and the case was finally disposed of by a sale of the remnant of such assets. No stockholder or creditor of the corporation has made any complaint of that action. No official whose duty it is to supervise or regulate corporate conduct, either in West Virginia or Ohio, has ever questioned the procedure. We see no reason why the plaintiff in this action should question it, or what concern it is of the plaintiff. Even if the Ohio proceedings were voidable, it would not make the sale of the remaining assets of the corporation to Leo Lindenberg void, so that an entire stranger to the proceedings, as is plaintiff in this case, one who would be unaffected by it one way or the other, can attack it in á purely collateral manner.
In Central Trust Co. v. McGeorge, 151 U. S. 129, an action was brought in the circuit court of the United States of Virginia by a creditor against a corporation created by and existing under the laws of New Jersey, asking for the appointment of a receiver. The defendant company appeared by its president and consented to the appointment of a receiver, and the appointment was made. A number of other creditors intervened. A question was raised as to the authority of the court to appoint the receiver, the action not being in the domicile of the defendant. It was held that the exemption, from being sued out of the district of defendant’s domicile, is a personal privilege which may be waived, and which is waived by pleading to the merits, and further held that where the defendant company has submitted itself to the jurisdiction of the court, such voluntary action cannot be overruled at the instance of stockholders and creditors not parties to the suit as brought, but who have been permitted to become such by intervening petition. This ruling followed previous holdings of the supreme court of the United States and has in turn been repeatedly followed. (See cases cited in Rose’s notes.)
In Starr v. Bankers Union of the World, 81 Neb. 377, it was held:
“Where all the property, books and records of a fraternal beneficiary association organized under the laws of another state are brought into this state, and the business of the association is attempted to be here carried on by per sons assuming to act as the officers or agents thereof, the courts of this state have power to appoint a receiver to administer the property of such association.”
In 23 R. C. L. 34 it is said:
“It is a general rule that a court will not appoint a general receiver of a foreign corporation, or a receiver to -wind up its affairs, if the corporation has no property in the state of the appointing court, and has not appeared or been served with process, and .none of its officers or agents are to be found in that state. A court of equity will not, by means of a receiver, interfere with the purely internal affairs of a foreign corporation, for the reason that the court canDot obtain control of all the property, books, records and members of the corporation so as to do full justice between all the parties interested. It has been held, indeed, that the court has no jurisdiction to appoint a receiver in such a case, but the better opinion is that it is a matter rather of discretion than of jurisdiction. The rule rests more on grounds of policy and expediency than on jurisdictional grounds; more on want of power to enforce a decree than on jurisdiction to malee it. There is a radical distinction, however, between an action which seeks to have appointed a receiver of the local property and assets of a corporation in order that they may be preserved from unlawful disposition and waste, and an action for the appointment of a receiver of the corporation. In the former case it is settled that the action will lie, whether a domiciliary receiver has been appointed or not. For jurisdictional purposes there is, of course, no distinction to be drawn between the power to appoint a so-called ancillary receiver and the power to appoint an original receiver. And if a corporation has all its property at the forum, and does all its business there, it would seem that a court of equity might well appoint a receiver to wind up its business affairs.” (See, also, Low v. Pressed Metal Co., 91 Conn. 91; Cunliffe v. Consumers Assn. of America, 280 Pa. St. 263; and the annotations in 18 A. L. R. 1383 and 32 A. L. R. 1353.)
In this case, although the Motor Securities Company was incorporated under the laws of West Virginia, its head office and principal place of doing business was at Columbus, Ohio, where its books and' records were kept. When the creditor’s bill was filed the defendant, by its president, voluntarily entered the general appearance of the corporation, and thereby waived its privilege to be sued in West Virginia. The court appointed the receiver and proceeded to administer the assets of the corporation. The plaintiff in this case is in no position to question the validity of that proceeding.
If Leo Lindenberg owned the judgment by virtue of that receiver’s sale, he was authorized to have an execution issue in the name of the judgment creditors without filing in the case a written assignment of the judgment. (Gilmore v. Bank, 90 Kan. 405, 133 Pac. 726.)
It necessarily follows that the court below was in error in holding that the. judgment had become dormant, or that the execution of November 14, 1923, was not issued on proper authority. Its judgment will be reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover from the maker on a promissory note for $100. The defense was the note was procured by fraud, and plaintiff was not a holder in due course. Defendant prevailed, and plaintiff appeals.
The note was dated Winona, Kan., October 24, 1921, became due nine months after date, and bore interest at the rate of seven per cent per annum. It was a “myself” note, indorsed by the maker, who was a farmer and stock raiser in Logan county, Kansas. It was given to H. L. Hawkins in payment of the purchase price of stock in the A. J. Stevens Rubber Company, and was negotiated to plaintiff on December 17,1921, by E. E. Amick. These names and this class of paper .are familiar to the court (Pioneer Trust Co. v. Combs, 117 Kan. 89, 230 Pac. 302), and fraud in procuring the note was fully proved.
The Boonville National Bank has a capital stock of $200,000. Amick was formerly its president.- At the time of the trial, Amick was vice president of the First National Bank of Kansas City, Mo. In 1919, Amick was succeeded as president of the Boonville Bank by B. M. Lester, who had been connected with the institution since its organization, and had held the offices of cashier and vice president. Lester conducted the transaction with Amick whereby the bank acquired the note sued on. The transaction included delivery of twenty-four notes of $100 each. Included in the list were four notes, each bearing interest at seven per cent, given by residents of Logan county other than the defendant. Amick was given a certificate of deposit for $2,400, and the transaction was regularly entered on the books of the hank. The certificate matured in nine or twelve months, was not paid when due, and was renewed on January 23, 1923. It had not been paid on November 28, 1923, when Lester’s deposition was taken. Amick was paid interest on the certificate in the sum of $104, for what time and at what rate is not disclosed. Lester knew none of the makers of the Logan county notes. It was the bank’s practice to purchase notes of nonresident strangers at face value when recommended by a reliable person, without the indorsement of such person. It had purchased paper of Amick, and purchased the paper involved in the transaction which has been described on his recommendation and at his request. Lester did not inquire respecting financial responsibility of the Logan county makers, or the source of Amick’s title; nothing was said concerning those subjects, and Amick did not indorse the notes. Lester knew nothing concerning the defect in .Amick’s title.
The foregoing facts were presented to the jury in Lester’s deposition, are all the material facts bearing upon the question of the bank’s good faith in taking the paper, and this court is as competent to determine the question as the juiy. Plaintiff contends the case is governed by the decision in Pioneer Trust Co. v. Combs, 117 Kan. 89, 230 Pac. 302. In the Combs case Amick said something to the trust company about Combs being a large landowner and perfectly good. Amick indorsed the Combs note, thereby making himself secondarily liable. The trust company took the note on Amick’s indorsement, and the trust company gave Amick a credit of $1,600 on his note, and paid him $400 in cash. The law is fully stated in the opinion in the Combs case. Without debating the evidence in this case, the court holds the question whether plaintiff purchased the notes, and if so, purchased them in good faith, was properly submitted to the jury, and the jury were authorized to infer from the evidence that plaintiff was not a purchaser of the notes, and acquired possession of them in bad faith.
The judgment 'of the district court is affirmed.
Johnston, C. J., and Burch, J., dissenting. | [
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The opinion of the court was delivered by
Mason, J.:
The Home State Bank sued Matthew P. DeWitt upon two notes executed to it by him for $9,900 each, secured by mortgage, and three smaller notes given for interest thereon.. He will be spoken of as the defendant, although his wife was joined with him because of her interest in the mortgaged real estate. The-answer alleged that the notes were given without consideration, and were renewals of notes given without consideration. The burden of proof being upon the defendant evidence was introduced in his behalf, a demurrer to which was sustained. The appeal is from that ruling and also from the sustaining of objections to evidence offered.
While the defendant was on the stand he was asked whether there was any consideration of money, property or other thing of value given him for the signing of the notes, and whether there-were any promises or agreement made between him and the plain.tiff that if he would sign the notes no action would be brought. Each of these questions was objected to as calling for a conclusion of the witness, and the objections were sustained, the judge saying: “Let him state the circumstances under which he gave the notes. How the notes were given. That is the proper way to show whether there was any consideration or not.” The questions were objectionable on the ground indicated, and the defendant was later given full opportunity to narrate everything that took place in connection with the execution of the notes sued on. As will be shown later, no responsive answer to the questions could have affected the result, in view of the defendant’s testimony. The witness was asked whether anything was paid him when he signed the first note. He replied in the negative, and the answer was stricken out. No prejudice could have resulted from this ruling, for it is clear from the whole record that there was no contention or suggestion that the defendant received any money when the note was given.
The answer alleged “that the former indebtedness evidenced in .amounts as set forth in the plaintiff’s petition, were the debts of one Ralph M. DeWitt [the defendant’s son], owing by him personally to the plaintiff herein.” The son testified that “the indebtedness to the Home State Bank was his (Ralph M. DeWitt’s) individual indebtedness. . . . They [the bank people] said they had an •excess loan and couldn’t carry it, and asked my father if he wouldn’t carry a part of it until I could get on my feet so I could pay it, and then he did so.” The defendant testified on cross-examination “that his son, Ralph DeWitt, had notes there, but he did not sign them [the notes sued on] for that reason, but signed them because Mr. Skinner [the president of the bank] said he would carry those notes indefinitely until Ralph could make the money to pay them.” He also said: “Well, I signed the note, but didn’t get anything for it. In fifty or sixty days afterwards he (Mr. Skinner) returned some of Ralph’s notes to me.” To the question: “Now, as a matter of fact, you gave the two $9,900 notes to take up Ralph’s — Ralph DeWitt’s —losses, didn’t you?” he answered: “No, I didn’t take up the losses. I did that so the bank could get by and wouldn’t have an •excess loan.” On redirect examination he was asked: “Mr. DeWitt, I believe you stated in your cross-examination that they gave you some of Ralph’s old notes; do you mean they gave them to you personally for him or just personally to you?” He answered: “Well, I suppose they was for him. I don’t know.”
The defendant’s general statements that he got nothing for the notes must yield to the specific fact admitted by him that the bank returned to him notes given by his son. It is of course immaterial whether his son’s notes were given to him for his own benefit or to be passed on to his son. The surrender of the son’s notes by the bank was a sufficient consideration to support the obligation assumed by the father, whatever final disposition was to be made of them. Consideration for a note may of course consist of a disadvantage to’ the payee as well as of a benefit to the maker. It is true there was no explicit testimony that the surrender of the notes executed by the son was made in pursuance of an agreement entered into when the defendant gave the notes that replaced them, but that is the obvious inference from the evidence considered as a whole. The presumption is that there was a valid consideration for the notes sued upon (R. S. 52-301) and it was incumbent on the defendant to produce evidence showing the contrary. It was not enough that he should show the nonexistence of certain kinds of consideration; he was required to negative the existence of consideration in any form.
3. In the defendant’s brief it is said:
“Ralph M. DeWitt testified that ‘The notes that are sued on here are notes that were made up of these losses I had.’ He also testified that, T wasn’t able to pay them — I was broke for that matter. I had nothing to pay with.’
“This established the fact beyond question that the debt owing by Ralph M. DeWitt to the Home State Bank for the losses sustained was an absolute worthless debt.
“If it could be said that these notes for $9,900 each were given for this worthless debt, then under the authorities there would be no consideration for the giving of these notes.”
The fact that Ralph M. DeWitt was unable to pay his notes, and that he had no property from which a judgment upon them could be collected, did not prevent their surrender from constituting a sufficient consideration for the new notes. The relinquishment of an existing obligation by the obligee is a good consideration for a contract however faint may be the prospect of realizing upon it. The release of a note given by a man who has later died leaving no estate does not form a sufficient consideration for a new note, because it is legally worthless, not being a claim against any person or property. (8 C. J. 222.) A note executed by a person who is still alive cannot be said as a matter of law to be without value, although the maker is wholly without present means.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was commenced by Ruth Hendrix to recover damages for personal injuries occasioned by a defect in a county bridge. The plaintiff died and, pursuant to stipulation, the action was revived in the name of her mother, Margaret Hendrix, as next of kin. By leave of court Margaret Hendrix filed an amended petition, which disclosed that Ruth died of the injuries she received in the bridge accident. Defendant moved -to strike the amended petition from the files because it departed in law and in fact from the original petition. Defendant also demurred to the amended petition on the ground Margaret Hendrix had no capacity to sue, and on the ground the petition did not state a cause of action in her favor. The motion was denied, the demurrer was overruled, and defendant appeals.
At the time defendant stipulated that Ruth’s action might be revived, and when that action was revived, the cause of her death had not been disclosed. When the fact was brought on the record that Ruth died as the. result of the injuries for which she sued in her lifetime, defendant was privileged to insist on abatement of Ruth’s action. Her action survived only in the event her death resulted from causes independent of the injuries on which her action was predicated. Sections 420, 421 and 422 of the old code (R. S. 60-3201, 60-3202, 60-3203) have been so interpreted in a long line of decisions beginning with McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46, and extending to Goodyear, Administratrix, v. Railway Co., 114 Kan. 557, 220 Pac. 282. The result is, Ruth’s action abated, the stipulation to revive and the order of revivor were improvidently made, and the law provides no means for recovery by anybody of the damages prayed for in Ruth’s petition.
The amended petition contained the following:
“Plaintiff states that she was dependent upon the said Ruth Hendrix in her lifetime for support, and the said Ruth Hendrix did contribute to her support, and would have continued, had she lived, to provide for the support of this plaintiff, all to her damage in the sum of ten thousand ($10,000) dollars.
“Wherefore, plaintiff prays judgment against said defendant for said sum of ten thousand ($10,000) dollars and the costs of this action.”
In all other respects the amended petition stated a cause of action in favor of Margaret Hendrix, as next of kin, for the wrongful death of her daughter Ruth. Therefore the amended petition was a new petition, by a new plaintiff, setting up a new cause of action, the injury to Margaret Hendrix consequent upon the accident at the bridge. So considered, the amended petition was good against the demurrer. Did the district court commit prejudicial error in refusing to strike it from the files?
Ruth’s petition was filed on August 30, 1922. Her death occurred on July 31, 1923. The amended petition was filed on September 16, 1924. The motion was denied and the demurrer was overruled on May 23, 1925. Had the amended petition been stricken from the files, Margaret Hendrix could have refiled it and caused summons to be issued upon it at once. The statute of limitations had not run, the situation of the parties had not changed, and the privilege of the defendant to be served anew was a privilege without profit or advantage. Margaret Hendrix has not been willing to concede that the amended petition bore no relation to the original petition and that she gained nothing by the revivor. The district court did not state its views on the subject. Had the concession been made, or had the district court indicated that if Margaret Hendrix recovered, her damages would be limited to those which she sustained, without regard to the damages which Ruth sustained, the defendant would doubtless have entered appearance in order to save costs and delay. The result is, defendant should be permitted to answer the amended petition, and the action should proceed to final determination as if commenced in due form. Such a practice was approved in the case of Blair v. Craddock, 87 Kan. 102, 123 Pac. 862. In the opinion it was said:
“The filing of the so-called amendment amounted to nothing short of the institution of a new proceeding in ejectment, which necessarily dated from the time it was filed.
“Giving to the proceeding the effect just described, the court did right in entertaining it. Blair might have filed a petition in ejectment and caused summons to issue instanter. No beneficial purpose could be subserved by compelling these steps to be taken. Time and expense could be economized and the parties could be placed in the same situation by allowing Blair to plead anew while no substantial right of Craddock could be impaired.” (p. 105.)
At the oral argument, the position of defendant’s attorney was that the appeal was virtually one for a declaratory judgment, and the judgment will be that the district court proceed in accordance with the views which have been expressed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to foreclose a mortgage. The plaintiff prevailed, and the defendant appeals.
The facts were substantially as follows: On August 23, 1915, P'ettyjohn & Company conveyed the land in controversy to Elmer D. and Harry L. Higginbottom. The only consideration for the conveyance was the execution of a mortgage back to the Petty-johns on the property for $3,500. The Higginbottoms jointly resided on the land for about a year, at the end of which time Harry went to the office of the Pettyjohns and stated to Mr. Thomas, in charge of the office, that he desired to be released from the deal. He agreed to quitclaim his interest to his brother Elmer. A deed was later prepared and sent to Elmer, but was mislaid and never executed. Harry left the land and moved to Missouri, where he resided for some time. He later returned to Anderson county to other land nearer Garnett. He paid neither interest nor taxes on the land in controversy, nor any of the principal of the mortgage. Neither did he ask nor expect any rent from the farm. Elmer paid part of the taxes, and some interest, but none of the principal. When the mortgage came due, Elmer and his wife executed a renewal mortgage to take its place. On other occasions, Elmer executed other renewals, the amount of the original being divided into smaller mortgages, of which the .one sued on in this action for $1,700 was a part. It was assigned by the Pettyjohns to the plaintiff. Taxes became delinquent and a tax deed was issued to one Cynthia Monroe,, who conveyed to Charles F. Pettyjohn. Several years later, Harry Higginbottom executed a quitclaim deed to the defendant, who contends that Elmer Higginbottom had no authority to execute the renewal mortgage covering Harry’s interest in the land, that the tax proceedings were irregular, that the tax deed conveyed no interest in the land, and that the land is subject to partition; also, that while Harry Higginbottom negotiated with the Pettyjohns for a sale of his interest in the land the sale was never consummated, and that until the time he executed the deed to defendant he always, claimed an interest in the land.
The plaintiff contends that since the conveyance to the defendant was by quitclaim deed only, the defendant stands exactly in the position of Harry Higginbottom and with no stronger title; that Harry abandoned the land, and the defendant is estopped to deny that, the mortgage sued on is a lien on the whole of the land described; that it was purely a renewal mortgage; that the plaintiff, who is-the holder in good faith, should be subrogated to the rights of the original mortgagee; and that any title Harry Higginbottom may have had was eliminated by the tax sale.
It is clear that Harry never in fact paid anything for his interest in the land, and after his statement to Mr. Thomas in Pettyjohn’s office that he desired to relinquish his interest and agreed to quitclaim to Elmer, he (Harry) manifested no ownership or interest in the farm. Elmer testified that Harry “just wanted to quit and get out and go. . . . Pettyjohn mailed me a quitclaim deed for Harry and his wife to sign, deeding this farm from Harry and his wife to me, and I lost it, and Harry never signed it.” Harry left the farm and went to Missouri. He never returned to the farm, paid neither taxes, interest on the mortgage, nor any of the principal. His every act indicated that he had no interest in the farm. These facts and circumstances and the inferences reasonably to be drawn therefrom were sufficient to support the judgment for the plaintiff. No special findings were made. The general finding of the trial court embraced and determined all matters in plaintiff’s favor which may fairly and reasonably be deduced from the evidence; that is to say, it included a finding that Harry claimed no interest in the farm from the time he left it and moved to Missouri, and that he acquiesced in his brother’s renewal of the mortgage.
Harry agreed to quitclaim to his brother, and following his removal from the farm he acted precisely and in all respects as though he had done so. Equity regards that as done which should be done, and since Harry failed to execute a conveyance to his brother as he agreed, equity will execute it for him. Under the circumstances, Harry had no interest in the land at the time of the execution of the quitclaim deed to the defendant, and the defendant took nothing thereby. (Gilmore v. Hoskinson, 98 Kan. 86, 91, 157 Pac. 426, and cases there cited.)
The renewal mortgages were given to take the place of the one originally executed by the Higginbottom brothers. The plaintiff took an assignment of the mortgage in controversy in all good faith. Under all the circumstances, no good reason appears why he should not be subrogated to the rights of the original mortgagee. The doctrine of equitable subrogation was well treated in Breyfogle v. Jackson, 113 Kan. 373, 214 Pac. 779. The principles discussed there (pp. 376-377) are applicable here. (See, also, Gano v. Martin, 10 Kan. App. 384, 61 Pac. 460; Eversion v. Central Bank, 33 Kan. 352, 6 Pac. 605; Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453; Zinkeison v. Lewis, 63 Kan. 590, 66 Pac. 644; Warne v. Morgan, 68 Kan. 450, 75 Pac. 480; Olson v. Peterson, 88 Kan. 350, 128 Pac. 191; Deposit Co. v. City of Stafford, 93 Kan. 539, 144 Pac. 852; Spaulding v. Harvey, 129 Ind. 106; Johnson v. Barrett, 117 Ind. 551; State Sav. Trust Co. v. Spencer, 201 S. W. 967 [Mo. App.]; Sherman v. Yankee Products Corporation, 194 N. Y. Supp. 705; Reserve Loan Life Insurance Co. v. Dulin, 122 N. E. 3, 7 [Ind. App.]; 37 Cyc. 373.)
The judgment is affirmed.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff sued to recover on a promissory note given to it for $3,500 and interest, signed “G. W. Fadely Co. by G. W. Fadely.” The defendant denied liability on the note and set up five separate causes of action on which he asked judgment against the plaintiff. The plaintiff was denied judgment, and judgment was rendered in favor of the defendant for $2,585.70 on his third cause of action against the plaintiff. The case was submitted to a referee to make findings of fact and conclusions of law and report them to the court. The defendant demanded a trial by jury.’ He appeals from the order refusing him a trial by jury, from the order referring the cause to a referee, and from the refusal of the court to render judgment in his favor on the first, second and fourth causes of action set out in his cross petition. The plaintiff appeals from the judgment rendered against it in favor of the defendant, from the refusal' of the court to render judgment for the plaintiff notwithstanding the findings of the referee and of the court, and from the order denying to the plaintiff a new trial.
The action was tried twice, the first time to a jury, which returned a verdict in favor of the defendant. On the motion of the plaintiff, that verdict was set aside and a new trial was granted. Before the commencement of the second trial the defendant demanded a jury and objected to a reference of the questions at issue. A jury trial was denied, and the reference was made as to the cause of action set out in the petition and the first, second, third and fourth causes of action set out by the defendant in his cross petition. The defendant’s fifth cause of action was for exemplary damages claimed by him on account of the plaintiff’s conduct described in the first four causes of action alleged by the defendant. The referee heard the evidence, made exhaustive findings of fact and made conclusions of law thereon. The referee found against the plaintiff on the cause of action on which it sought to recover, and against the defendant on all his causes of action which had been submitted to the referee. The court confirmed and approved all the findings of the referee except finding No. 20, for which the court substituted a finding of its own. The court did not approve the sixth conclusion of law made by the referee, but substituted another conclusion therefor. On the findings as finally approved and confirmed, the court denied judgment in favor of the plaintiff and rendered judgment in favor of the defendant on the third cause of action set out in his cross petition. The findings and conclusions of law as adopted were as follows:
“I. In the fall of 1918, about the month of September, one G. W. Fadely engaged in the sheep business at the stockyards at South St. Joseph, Mo., under the name of G. W. Fadely & Company.
“II. In carrying on of said business the said G. W. Fadely did what is known as a speculative business in sheep, by buying sheep on the market, and after-wards selling them, or by keeping them a day, or a few days, and selling them again. During the time the sheep were on his hands he caused them to be fed at first about the stockyards, and later, shortly before Williamson bought an interest in the business, he rented and fixed up feeding pens of his own.
“III. G. W. Fadely continued in such business alone until about the 4th day of December, 1919, at which time the defendant, E. R. Williamson, purchased an interest in the sheep business of the said G. W. Fadely, and paid for a one-half interest in the business the sum of $5,000.
“IV. G. W. Fadely did his banking business with the plaintiff in this action, the Drovers and Merchants Bank of St. Joseph, under the name of G. W. Fadely & Company, and when the defendant, E. R. Williamson, purchased an interest in the business he paid the $5,000 by check to G. W. Fadely, and it was deposited in the firm name of G. W. Fadely & Company, in such bank, and the business thereon carried on in the same manner, in the name of G. W. Fadely & Company, and in the same account as it had been done previous, when the business was conducted by G. W. Fadely alone.
“V. At the time of the formation of the partnership between G. W. Fadely and the defendant, E. R. Williamson, on December 4, 1919, G. W. Fadely had on hands a large number of sheep, of the value of about $9,000, feed and other equipment for the carrying on of the business, of the value of about $800, which he contributed to the partnership business of Fadely & Williamson carried on as G. W. Fadely & Company.
“VI. It was agreed and understood between G. W. Fadely and E. R. Williamson that Fadely & Williamson should carry on the business in the same name and the same way that it had been carried on and conducted by G. W. Fadely alone, and that E. R. Williamson was to put into said business the sum of $5,000 against Fadely’s sheep on hand, and the equipment, feed and other property used in the business.
“VII. Negotiations had been carried on between G. W. Fadely and E. R. Williamson about Williamson buying an interest in said business, during the month of November, 1919, and that it was agreed the partnership was to begin the first day of December, 1919, but the transaction was not finally completed until December 4, 1919, at iyhich time Williamson paid into the business the said sum of $5,000.
“VIII. The partnership agreement between Fadely and Williamson was verbal. An attempt was made about the time of the transaction to reduce their agreement to writing, but such writing was never signed, and not introduced in evidence. The agreement, however, was to the effect that they should be equal partners and share alike in profits and losses.
“IX. At the time when Williamson paid his $5,000 into the business, Fadely was indebted to the Drovers and Merchants Bank, plaintiff, on three notes, one note dated July 19, 1919, for $2,000; one note, dated the 23d day of August, 1919, for $5,000; and one note dated December 2, 1919, for $2,000.
“X. About the time Williamson bought into the business, Fadely and Williamson had a talk with Mr. H. E. Wyatt, the president of the Drovers and Merchants Bank, about establishing a line of credit at the bank, and they were asked by Mr. Wyatt about taking care of the indebtedness of Fadely at the bank, and was told by them in the conversation that such indebtedness was to be assumed by the new partnership, and would be'taken up when the sheep on hand were sold.
“XI. G. W. Fadely, prior to the time Williamson became a partner in the business, kept a set of books, under the head of G. W. Fadely & Company. Such books were kept by one B. Biller for said Fadely, and after the formation of the partnership the same books were continued and kept by B. Biller, and the accounts and items of the new firm were entered as accounts and items of G. W. Fadely & Company, and a new set of books was not opened. B. Biller continued in the employ of the new partnership during the time it remained in business.
“XII. Under date of January 6, 1920, Fadely and Williamson sent to the plaintiff a letter, signed by them, of which the following -is a copy :
"Drovers & Merchants Bank, St. Joseph, Mo.
Gentlemen — On and after January 10th, honor checks signed by B. Biller, and countersigned by Geo. W. Fadely or E. R. Williamson, signatures here below written.
G. W. Fadely.
E. R. Williamson. Yours very truly, Fadely & Co.,
By B. Billed.
“XIII. About December 31, 1919, the plaintiff, Drovers and Merchants Bank, sent to Fadely & Company a statement of the interest due on notes, including the note for $2,000 dated July 19, 1919, and the $5,000 note dated August 23, 1919.
“XIV. On January 2, 1920, the $2,000 note dated July 19, 1919, signed by G. W. Fadely, was paid out- of the partnership funds, and an entry showing such payment was made by B. Biller upon the books of Fadely & Company.
“XV. About March 15, 1920, said Drovers ■ and Merchants Bank sent a statement to G. W. Fadely & Company showing the amount due- to said bank on notes. Said statement showed that G. W. Fadely & Company was indebted to the bank on the note of $5,000 dated August 23, 1919, signed G. W.. Fadely, and ivas indebted to the bank on a note dated February 4, 1920, signed G. W. Fadely & Company, by E. R. Williamson, for $2,500. Upon receipt of such statement, the bookkeeper, B. Biller,-made out a-check for $7,605.55, which was countersigned by G. W. Fadely, and sent the same to the bank..-.Said check was received by the bank and the said note for $5,000 marked ‘Paid,’ and the check charged to account of Fadely & Company and the note returned to Fadely & Company, and no complaint was made to the bank about the payment of the said $5,000 note out of the partnership funds.
“XVI. It does not appear from the evidence how much business was done by G. W. Fadely or G. W. Fadely & Company, that might have been termed speculative business, after the formation of the new partnership, and no separate account was kept of the same, and all such business, if any, was done in the name of G. W. Fadely & Company, and passed through G. W. Fadely & Company’s account in the bank.
“XVII. On August 7, 1920, Fadely & Williamson, being then indebted to the plaintiff, the Drovers and Merchants Bank, upon a note of $6,000 and upon a note for $500, and desiring still a further line of credit, went to the bank and asked to increase their loan to $10,000, and were told by Mr. Wyatt, president of the bank, that he could not extend them a credit of $10,000 as a firm, and told them it would be an excessive loan to let them sign the firm name to the notes, or to sign their names jointly, and also told them that the bank would extend them the line of credit which they asked for, and would take the note of each one individually for $5,000. ,G. W. Fadely and E. R. Williamson each gave his note for $5,000, payable to the bank, and the bank gave the firm of G. W. Fadely & Company a deposit slip for two items of $5,000 each, making $10,000, and charged against them upon such slip, under the head of notes, $9,500, which was made up of the $6,000 note and a $500 note owed by the firm to the bank, and $3,000, being one-half of a $6,000 note held by the bank, and signed by G. W. Fadely and a man by the name of Charles Shotwell, and interest and revenue, amounting to $80, leaving a balance of $420, which was placed to the credit of G. W. Fadely & Company in their account at the bank. The $3,000 of the Shotwell note above referred to was secured by what was designated as Leather Co. stock. The stock was afterwards divided evenly between Fadely and Williamson.
“Afterwards, under date of November 22, 1920, G. W. Fadely executed to the bank an additional note signed by him individually, for $2,000; and on September 20, 1920, E. R. Williamson executed to the bank an additional note signed by him individually, for $3,000. These notes were each placed to the credit of Fadely & Company.
“XVIII. On December 16, 1920, at the request of the plaintiff, the Drovers and Merchants Bank, G. W. Fadely and E. R. Williamson each made to the bank a property statement. The statement signed by G. W. Fadely contained an item, ‘$7,500 due Drovers and Merchants Bank’; and in the statement signed by E. R. Williamson is shown an item, ‘Notes payable to own bank $7,500’; and on the reverse side of the sheet an item, ‘General partners, G. W. Fadely and E. R. Williamson, under the name of G. W. Fadely & Co.’
“XIX. At the time of the making such statement the defendant, E. R. Williamson, told the officer of the bank taking the same that the firm of Fadely & Company were quitting business, and thereafter the firm transacted no business except such as was necessary to dispose of the partnership property and apply the proceeds on partnership debts.
' “XX. Finding No. XX is changed and modified to read as follows: ‘On January 4, 1921, Fadely & Company sold $1,500 worth of sheep, and Fadely took the deposit to the Drovers and Merchants Bank and applied it on his own individual $2,000 note, dated November 22, 1920, Williamson consenting and agreeing to the $1,500 being so applied. At that time Fadely and Williamson agreed that the money from the sale of the next sheep should go toward paying the individual notes of Williamson at the bank. Afterwards, on January 10, 1921, other firm sheep were sold, and the proceeds, amounting to $2,014.31, was deposited in the bank. As Fadely was leaving for the bank with the money the partners agreed that the money belonged to Williamson and should be applied on his individual notes at the bank, in accordance with the agreement when the $1,500 was applied on Fadely’s indebtedness, and Fadely told Williamson that he would apply the money on Williamson’s individual notes. Fadely went to the bank with the money and was waited on by W. E. Thompson, an officer of the bank, and Fadely told Thompson that the' money belonged to Williamson and instructed him to apply it on the Williamson notes, but Thompson refused to so apply it, and insisted on applying it on the payment of Fadely’s individual notes, and did so apply it, $500 to clean up the balance of Fadely’s $2,000 note and $1,500 on Fadely’s individual $5,000. Thompson then insisted on Fadely giving a new note for the balance of $3,500' due on his $5,000 note. Fadely signed the $3,500 note “G. W. Fadely.” After the note was signed, Thompson told Fadely to add “Company” to the signature. Fadely objected, but did sign the note by adding “Co. by G. W. Fadely,” as instructed by Thompson. The note so signed is the note sued on in this action. Fadely told Williamson the $2,014.31 had been applied on his notes as agreed, and Williamson did not'know the money had not been so applied until some days later, when he went to the bank to investigate and asked to see the notes. The bank refused to apply the money on the Williamson notes, as directed by Fadely as the agent and partner of Williamson, with full knowledge that the partners had quit business and were settling up their affairs, that the firm assets were not sufficient to pay the firm debts and that the $2,014.31 belonged to Williamson and that Williamson’s notes were good and collectible and that the bank was in danger of losing on Fadely’s indebtedness to the bank, unless this money was applied on the Fadely instead of on the Williamson notes. Thompson and the bank knew that for Fadely to apply the $2,014.31 on his individual notes, and to execute the new $3,500 note as a firm note, would be a fraud on Williamson, and, with such knowledge, the bank, through said Thompson, fraudulently applied said money on the Fadely notes and fraudulent^ caused the $3,500 -note to be signed by Fadely as a firm note.’
“XXI. After the application of the sum of $1,500 on the said $5,000 note of G. W. Fadely, at the request of Mr. Thompson, the vice president of the bank, Fadely executed a new note to the bank for $3,500 to take up the balance on the old note, and signed it first G. W. Fadely, and then at the request of Mr. Thompson, the vice president, added the words ‘& Co. by G. W. Fadely’ to the signature. This note so signed G. W. Fadely & Co. by G. W. Fadely is the note sued on by plaintiff in this action, and at the time it was so signed the bank, through its officers, H. E. Wyatt and W. E. Thompson, were informed and knew that G. W. Eadely & Company had quit business as a going concern, and were selling the assets of the company and applying the same on the company’s indebtedness.
“XXII. E. R. Williamson had no knowledge of- and did not give his consent to the making of the said new note by G. W. Eadely in the name of Eadely & Company.
“XXIII. The said note of $5,000 dated August 7, 1920, and the note of $2,000 dated November 22, 1920, signed by G. W. Eadely, and the note for $5,000 dated August 7, 1920, and the note for $3,000 dated September 20, 1920, were all made and executed in the state of Missouri.
“XXIV. In February, 1921, the plaintiff brought suit in Hidalgo county, Texas, against G. W. Fadely upon the $3,500 note dated January 10, 1921, and upon the $3,000 note, and the $5,000 note signed by E. R. Williamson, and upon a $2,300 note signed by G. W. Fadely, and caused an attachment to be issued and levied upon certain property in Texas, as the property of G. W. Eadely, and plaintiff also brought suit in Oklahoma against E. R. Williamson upon the $3,500 note dated January 10, 1921, signed G. W. Fadely & Company by G. W. Eadely, and also upon the $5,000 note dated August 7, 1920, and the $3,000 note dated September 20, 1920, signed by E. R. Williamson. Later the plaintiff brought suit in Nemaha county, Kansas, against the defendant, E. R. Williamson, upon the $3,500 note dated January 10, 1921, signed G. W. Fadely & Company by G. W. Fadely, and also upon the $5,000 note dated August 7, 1920, signed by E. R. Williamson, and the $3,000 note dated September 20, 1920, signed E. R. Williamson, and caused an attachment to issue and be levied upon the property of E. R. Williamson.
“XXV. The suit against G. W. Eadely in Texas and the suit against E. R, Williamson in Oklahoma were dismissed, and the suit in Nemaha county, Kansas, so far as it pertained to the note signed August 7, 1920, for $5,000, and the note signed September 20, 1920, for $3,000, by E. R. Williamson, was settled by being paid by Williamson, in April, 1921, and without prejudice to the rights of either party so far as it pertained to the suit upon the $3,500 note of January 10, 1921, as sued on by plaintiff, and in controversy in this action. E. R. Williamson also paid costs and attorneys’ fees accrued in said actions in the sum of $404.19. This amount was paid to Groves & Watkins, attorneys at law, St. Joseph, Mo., who were attorneys for the plaintiff in said suit.
“XXVI. The fees charged and paid were reasonable fees for the services performed by Groves & Watkins as attorneys for the plaintiffs in said matters, and were properly charged to and paid by the defendant, E. R. Williamson, under the laws of the state of Missouri.
“XXVII. After the beginning of this action, and on or about the 4th day of May, 1923, said G. W. Eadely, in consideration of the surrender of a note for $1,914 which he had theretofore given to E. R. Williamson, in settlement of their partnership affairs, sold and assigned all his interest in the claim of the partnership against the plaintiff, the Drovers and Merchants Bank, for moneys wrongfully paid to the bank, or misapplied by the bank, as shown by the original assignment attached to defendant’s cross petition as exhibit B.
“XXVIII. There was no misrepresentation or deception by the bank or its officers to G. W. Fadely, E. R. Williamson, or the partnership, relative to the transaction of the business between G. W. Fadely & Company, when composed of G. W. Fadely alone, or G. W. Fadely & Company when composed of G. W. Fadely and E. R. Williamson, except as found in finding No. XX.
“Conclusions op Law.
“1. The plaintiff, the Drovers and Merchants Bank, having refused to take or accept the partnership or joint note of G. W. Fadely and E. R. Williamson for $10,000 for the reason that it would be an excessive loan under the banking laws or rules, could not take the individual notes of E. R. Williamson and G. W. Fadely for $5,000 each, and then treat them as partnership notes and hold the individual members liable upon both notes.
“2. E. R. Williamson was not liable upon the $5,000 note dated August 7, 1920, signed by G. W. Fadely, and is not liable upon the $3,500 note dated January 10, 1921, signed Fadely & Co. by G. W. Fadely.
“3. The plaintiff is not entitled to recover upon the note sued on in this action against the defendant, E. R. Williamson, and the defendant, E. R. Williamson, is entitled to recover judgment for the costs of the action, except one-half of cost of transcript, which E. R. Williamson should pay.
“4. The defendant is not entitled to recover anything against the plaintiff by reason of the first count in his cross petition.
“5. The defendant is not entitled to recover anything against the plaintiff by reason of the second count of his cross petition.
“6. Conclusion of law No. 6 is changed and modified to read as follows: ‘The defendant, E. R. Williamson, is entitled to recover the amount of $2,014.31, with 6 per cent interest per annum from January 10, 1921, sued for in the third count of the amended answer and cross petition, with costs, except one-half of the costs of transcript, which the defendant, E. R. Williamson, should pay.’
“7. The defendant is not entitled to recover anything against the plaintiff on the fourth count of his petition.”
The defendant at all times insisted on a trial by jury. On the ' hearing-of the motions of the plaintiff and of the defendant for a new trial, the court denied the motion of the plaintiff and denied the motion of the defendant as to his first, second and fourth causes of action, and by consent of all parties continued the cause for trial by jury on the fifth cause of action set out in the defendant’s cross petition.
The defendant argues that the court committed error “in referring this case for trial before a referee over defendant’s objections; and after report of referee, refusing defendant a trial by jury on remaining counts of his cross petition.” The findings of fact disclose the nature of the transactions that were to be investigated on the issues made by the pleadings. The pleadings disclosed that to determine the issues involved it was necessary to examine the books of the plaintiff bank showing its dealings and relations with the firm of G. W. Fadely & Co., and also the books of G. W. Fadely showing the relations and transactions between that company and the plaintiff and between G. W. Fadely, one of the partners, and E. R. Williamson, the defendant, the other partner. It is necessary to examine sections 60-2922 and 60-2923 of the Revised Statutes. These sections read as follows:
“All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties, or upon their oral consent in court entered upon the journal.”
“When the parties do not consent, the court or judge may, upon the application of either, or of its own motion,., direct a reference in either of the following cases:
“First. Where the trial of an issue of fact shall require the examination of mutual accounts, or when the account is long and on one side only, in which case the referee may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein.
“Second. Where the taking of an account shall be necessary for the information of the court before judgment, in cases which may be determined by the court, or for carrying a judgment into effect.
“Third. Where a question of fact other than upon the pleadings shall arise upon motion or otherwise in any stage of an action.”
This action came within the first subdivision of section 60-2923. It was not error to refer the issues to a referee to make findings of fact and conclusions of law and report them to the court.
The defendant urges that the court committed error in “overruling defendant's motion for judgment on the -findings of fact made by the referee notwithstanding the conclusions of law.” The defendant says:
“It is clear and certain that the new firm composed of Fadely and Williamson under their contract was not to assume any of the individual obligations of Fadely. It is true that as against the great weight of the evidence the referee erroneously found in finding X . . . that Williamson and Fadely had a talk with Wyatt, the president of the bank, about establishing a line of credit in which Wyatt was told that the indebtedness of Fadely at the bank was to be assumed by the partnership.”
The abstract of the plaintiff shows that Mr. Wyatt, president of the plaintiff bank, testified:
“That Fadely and Williamson were in two or three times and were talking about Williamson going -into business with Fadely in the sheep speculating business, and one day they came in and said they would like to talk about a line of credit, and told them that the bank would take care of them for what they needed and asked about the indebtedness then owing to the bank, and was told that it would be assumed by the new partnership, would be taken up at the time the sheep on hand were sold.”
There was evidence to support the finding.
The defendant says:
“We believe this court in the situation of the bank, appellant, will not consider any questions raised on its appeal, except whether or not the findings are sustained by any evidence, and whether the conclusions of law were justified under the findings sustained by some evidence; yet in order that the court may fully understand this whole case, and may know that only justice has been done so far as we have proceeded, and that the only errors committed have been against Williamson, we desire to discuss the matter at some length.”
The findings of fact did not show that the defendant was entitled to have his motion sustained; it was not error to deny it.
The plaintiff says:
“The only question involved in this appeal taken by the Drovers and Merchants Bank, a corporation, is the correctness of the judgment rendered by the court against the appellant and the refusal of the court to enter a judgment in favor of the appellant for the amount due on the note sued upon.”
The judgment in favor of the defendant against the plaintiff depends largely on findings Nos. 17, 19, 20, 21 and 22. They show a payment of $2,014.31 by the defendant Williamson through G. W. Fadely to the plaintiff which was to have been applied on the notes of Williamson held by the plaintiff, but the plaintiff, instead of so applying the payment on the request of Fadely, insisted on the payment being applied on notes signed by G. W. Fadely, one of which was for $2,000 and one for $5,000, a'nd requested that Fadely give a new note for what was left of the $5,000 note from Fadely to the plaintiff, and insisted on the new note being signed “G. W. Fadely & Co.,” although there was evidence which tended to show that Fadely then told the plaintiff that there was then no company. The plaintiff insists that made no difference, because all of the notes were partnership liabilities. That contradicts the acts of the plaintiff. When the two $5,000 notes were given, the bank refused to extend to the partnership a further credit of $10,000, and refused to take the partnership note for $10,000, but instead extended credit of $5,000 to each of the partners and took the note of G. W. Fadely for $5,000 and of E. R. Williamson for $5,000.
In 3Ó Cyc. 483 the following language is used:
“A partnership is not liable for money borrowed, or goods bought, or con tracts made by a partner in his individual capacity, and not in the character of an agent for the firm, simply because such money, goods, or contracts are applied to the use, or inure to the benefit of the firm.”
Parsons on Partnership (4th ed.), section 88, reads:
“He who gives credit to one partner alone cannot call on the rest. This is true, however the credit be given. As, if the creditor sold him goods; id) or sold to another goods on his guaranty, or received him as surety in any way, or loaned him money; (e) if there is no evidence to show to whom credit was given, the fact that money borrowed by a partner comes to the use of a firm raises a presumption that the loan was made by him as partner, and, if not rebutted, will make the firm liable for the repayment; (/) if the creditor sold goods or loaned money to every one of the partners severally, on their several credit, he could not recover of them jointly, nor hold them mutually responsible, although the money or the goods were immediately used by the borrowers or buyers to make up the stock of the firm, or provide for its debts or business.”
Story on Partnership (7th ed.), section 134, in part reads:
“There are other cases which constitute exceptions to the general liability of partners for acts or contracts concerning the partnership business, which deserve special notice in this connection. One of them is, where in the very transaction, although it may be for the benefit or use of the partnership and in the business thereof, yet the credit is exclusively given to the partner transacting it, upon his sole and separate liability. The law is exceedingly clear and well settled upon this point. If money is borrowed, or goods bought, or airy other contract is made by one partner upon his own exclusive credit, he alone is liable therefor; and the partnership, although the money, property or other contract is for their proper use and benefit, or is applied thereto, will in no manner be liable therefor.”
Numerous decisions might be cited to support the rule stated in these authorities.
Each of the $5,000 notes was the individual obligation of the partner who signed it.
The $2,000 note of Fadely, on which part of the payment of $2,-014.31 was applied, was given after the two $5,000 notes had been executed.
It was a misapplication for the bank to apply the payment by Williamson on notes given by G. W. Fadely. The payment should have been applied on a note given by E. R. Williamson as requested by Fadely. If the note signed by G. W. Fadely was a partnership obligation, the plaintiff could have recovered on it from the defendant, E. R. Williamson. The application of the payment was immaterial to the plaintiff, if both notes were partnership obligations. If they were such obligations, the defendant was liable on each of them, one as much as the other. If he were not liable on both, it was because they were not partnership obligations.
E. R. Williamson was entitled to have this money applied as he directed. He was damaged in the amount of that payment by the failure of the plaintiff to so apply it, and he can recover therefor.
The contention that judgment should have been rendered in favor of the plaintiff cannot be sustained.
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The opinion of the court was delivered by
Burch, J.:
The action was one against Ida F. Woodland, who will be referred to as the defendant, for possession of land, for par tition, and for rents and profits. The answer admitted possession of defendant, exclusion of plaintiffs from possession, and receipt and appropriation of rents and profits. The answer further denied title in plaintiffs, asserted title in defendant, and prayed that her title be quieted. Defendant recovered, and plaintiffs appeal.
Defendant-was the wife of Stanley Woodland, who was joined as a defendant, but had no interest in the land except such as the marital relation conferred. Defendant’s maiden name was Ida Frazier. In 1896 she married John Helm Platt. No children were born of the marriage. John Helm Platt died in December, 1914, leaving a will devising the land in controversy to his widow, who was his only heir. -In 1918 she married Woodland.
John Helm Platt was the son of Mortimer R. Platt. In his lifetime Mortimer R. Platt owned land in Johnson county, and land elsewhere situated with which we are not concerned. He died on May 2, 1911, leaving a will which was executed on March 30, 1911, and was admitted to probate ón May 11, 1911. The testator left five sons. The will gave to each son 160 acres of land in severalty. Four of the sons were given estates in fee simple. John Helm Platt was given 80 acres in fee, and a qualified fee in 80 acres. A tract of 160 acres was given to four sons as cotenants, and a tract of 60 acres was given to the five sons as cotenants. Although John Helm Platt had been married fifteen years when the will was executed, he had no children, as his father well knew, and the provision of the will relating to the land given him in severalty reads as follows:
“I give and devise to my son, John Helm Platt, the east half of the northwest quarter of said section thirty-three (33), containing eighty (80) acres. I also give and devise to my said son, John Helm Platt, the north half of the southeast quarter of said section thirty-three (33), containing eighty (80) acres, subject to the express condition that if the said John Helm Platt at his death shall leave surviving him no children or descendants, I give and devise said north half of said section thirty-three (33) to such of his brothei-s as may survive him, in equal shares."
The plaintiffs in the case are persons and representatives of persons qualified to take under the will on the death of John Helm Platt in the event he should leave no surviving children or descendants.
The testator’s wife, Beverly Helm Platt, was living when the will was made and when the testator died. She was not mentioned in the will, did not consent to it, and did-not elect to take under it. She died on May 7, 1911, five days after her husband’s death occurred. She left no will. Her husband’s five sons were her children, and her only heirs.
A few days after their mother’s death, the sons rearranged the title to the lands devised to them as cotenants, by exchange of warranty deeds, one of which recited that the interest conveyed was as devisees under the will of Mortimer R. Platt, deceased, and as heirs of Beverly Helm Platt, deceased. Subsequently, the sons conferred together respecting the situation created by their mother’s nonadherence to their father’s will. By agreement between them, deeds were exchanged, and John Helm Platt received a deed from his brothers dated December 20,1911, the material portions of which read as follows:
“The said parties of the first part, for and in consideration of the sum of one dollar paid and a conveyance of real estate to each of said grantors made by said John Helm Platt, the receipt whereof is hereby duly acknowledged, have sold and by these presents do grant, bargain, sell, release, and forever quitclaim unto the said party of the second part, his heirs and assigns forever, all of the following-described tract, pieces, and parcels of land situated in. the county of Johnson and state of Kansas, to wit:
“All of the east half (%) of the northwest quarter (14) and the north half (Vi) of the southeast quarter (14) of section thirty-three (33) in township twelve (12) and range twenty-five (25), together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining; to have and to hold the said granted premises unto the said party of the second part, his heirs and assigns forever.”
After the death of John Helm Platt in December, 1914, his widow continued in unmolested possession of the land until this action was commenced. The premises on which plaintiffs predicated recovery are stated in their brief as follows:
“The undivided half interest in the land in question which passed under the' will of Mortimer R. Platt, Sr., vested in John, Helm Platt as a base or terminable fee, with a contingent executory devise over to such of his brothers as should survive him, in equal shares.
“The contingent executory devise created by the will is not affected by the deeds exchanged during the lifetime of John Helm Platt.
‘ The deeds exchanged during the life of John Helm Platt, being deeds of partition, were inoperative to vest in the respective grantees any new title, but merely set off in severalty the interest which had descended to them as cotenants.”
At the trial plaintiffs raised an issue of fact respecting the nature of the agreement under which the deed to John Helm Platt and the deeds referred to in that instrument were given. Plaintiffs’ evidence was that the parties intended merely to partition the interest they had taken by descent from their mother. Defendant testified the sons all said the will was not worth the paper on which it was written, and they determined to divide and deed the property, disregarding both estates so far as affected by the will. The district court resolved the conflict in the evidence by a general finding in favor of defendant. Besides that, in a memorandum opinion filed in connection with decision of the case, the trial judge stated the brothers intended to settle the whole matter among themselves, and to convey to each other every interest they had in the land. The finding and the judgment of the district court were predicated on that view. The general finding embraced every material fact and inference of fact favorable to defendant, was sustained by evidence, and is conclusive on this court.
The pretension-of the will to dispose of the entire estate failed. The devisees were obliged in any event to derive title to a portion by descent. Nobody was concerned except themselves, and they were at liberty to disregard the will if they chose to do so. Plaintiffs brought into the case the subject of family agreement respecting exchange of deeds, and the court determined the nature of the agreement. It was not necessary there should be controversy or compromise to sustain the agreement. The mutual renunciation of title by purchase and division of property on the basis of title by descent, constituted consideration, and when the arrangement was consummated by exchange of deeds, all parties were bound.
The finding of the court respecting intention of the parties is.not essential to validity of the judgment. Plaintiffs are bound by the quitclaim deed to John Helm Platt.
The will gave John Helm Platt a fee determinable on a stated condition, and a contingent executory devise to his brothers. An executory devise is a limitation by will of a future estate or interest in land. This description is not complete, but is correct as far as it goes. A remainder is also a future estate or interest. The doctrine of seizin made it necessary that a remainder be supported by a particular estate of freehold. Devises were good without livery, and when the statute of wills permitted land to be disposed of by will (32 Hemy VIII, c. 1 [1540]), future estates in land could be created without intervention of the particular estate. The re- suit is, all future devises which are not remainders are executorydevises. (Gray, The Rule Against Perpetuities, §§ 53, 54.) Since remainders were dependent on the particular estate, they were destroyed if the particular estate were destroyed, leaving a gap in the seizin. The case of Pells v. Brown, 2 Cro. Jac. 590 (1620), held executory devises were not destructible on account of casualties to the precedent estate. In Jarman’s opinion this is the essential characteristic distinguishing executory devises from contingent remainders. (2 Jarman on Wills, 6th Am. Ed., 1443.) Thenceforward a contingent executory devise was “something, even before vesting” (Kales Estates, Future Interests, 2d. ed., § 480) , and occupied a relation of better security than a contingent remainder. The case of McCartney v. Robbins, 114 Kan. 141, 217 Pac. 311, involved mortgage of a contingent remainder. It was uncertain who would take When a man died, just as it was uncertain in this case who would take on the death of John Helm Platt. The court held the contingent remainderman had an interest in the land. By parity of reason, a contingent future interest in the form of an executory devise is an interest in land, and not a mere possibility, and there is competent authority to that effect. In the case of Goodtitle v. Wood, Willes’ Reports, 211 (1740), the Lord Chief Justice said:
“The plaintiff’s counsel then compared the case of an executory devise to a bare possibility, and insisted that a bare possibility before the contingency-happened would not descend and could not be granted or devised, and that a recovery would not bar it; . . . of late years the doctrine of executory devises has been settled. They have not been considered as bare possibilities, but as certain interests and estates,"and have been resembled to contingent remainders in all other respects, only they have been put under some restraints to prevent perpetuities.” (pp. 212, 213.)
When executory devises first appeared, resemblance to contingent remainders caused them to be classified with such remainders with respect to alienability. The quality assigned to them continued to attach after the differences between the two forms of future interest had been judicially worked out. In McCartney v. Robbins, the nonalienability inter vivos of contingent remainders was discussed. It was held the old common law on the subject is not in force in this state, the contingent remainderman had an interest before the contingency was fulfilled, which was alienable, and the interest being fully alienable, could be mortgaged. By parity of reasoning, a future contingent interest in form of an executory devise should be alienable, and without pursuing the subject further the court holds the contingent executory devise to the brothers of John Helm Platt was capable of conveyance by deed.
The deed to John Helm Platt was a quitclaim deed. In this state any person having authority to convey may convey “land or any other estate or interest therein” by deed (R. S. 67-205), and a quitclaim deed is a good and sufficient conveyance by quitclaim. (R. S. 67-204.) A quitclaim deed conveys nothing except what the grantor has when the conveyance becomes operative. It does not guarantee that he has anything, but whatever he has at delivery of the deed is conveyed to the grantee just as effectively as if the instrument contained full covenants of warranty:
“There is no rule that will prevent a purchaser who takes a quitclaim deed from procuring all the title which his grantor at the time possesses. A quitclaim deed is as much a conveyance as any other kind of deed, and it will convey what the grantor has just as well as any other deed.” (Utley v. Fee, 33 Kan. 683, 691, 7 Pac. 555.)
“In this state a quitclaim deed to land will convey to the grantee all the rights, interests, title and estate of the grantor in and to the land, unless otherwise specified by the deed itself.” (Johnson v. Williams, 37 Kan. 179, 180, 14 Pac. 537.)
One who, if he should outlive another, would be an heir, has no interest in the land of the other during the other’s lifetime, which passes by conveyance. (Knight v. Dalton, 72 Kan. 131, 83 Pac. 124; Mosier v. Allenbaugh, 84 Kan. 361, 114 Pac. 226.) Contracts relating to such expectancies may be made and enforced, and may be given effect through equitable estoppel. To accomplish this result, equitable requirements must be fulfilled. The intent of the parties must be clearly ascertainable from the instrument; there must be consideration and fair dealing, etc. The contract may be made out from a quitclaim deed, and since this is so, it is sometimes said that the conveyance must describe the expectancy (or future interest) in order to transfer it. This identification of contract and conveyance tends to produce confusion. One requires the assistance of equity to make it effective; the other is a self-sufficient legal conveyance. The principle is illustrated in the case of Clendening v. Wyatt, 54 Kan. 523, 38 Pac. 792. In that case a quitclaim deed described the undivided portion of land to which the grantor might become entitled should he outlive his mother and should she die intestate still seized of the land. The instrument was of no effect as a conveyance, but the court said:
“It is insisted that this contract is in form a quitclaim deed, under which only the present existing interest of John Clendening in his mother’s estate would pass. It is true that, ordinarily, the grantee in a quitclaim deed gets nothing except what his grantor in fact owned at the time of the execution of the deed. . . . And if the contract in question was to be treated as a quitclaim deed, which did not purport to do more than to convey an existing interest, it could not be sustained. ... He had no interest in the land at the time the contract was made. His mother was then alive, and from the face of the contract it distinctly appears that he was contracting away the undivided and future interest which he expected to acquire from his mother’s estate at the time of her death. There is a specific description of the land in controversy in the contract, showing that the property now sought to be recovered was within the contemplation of the parties when the contract was made. Such a contract, based upon ample consideration, honestly and fairly made, with one who is capable to contract, may be enforced in equity.” (pp. 525, 526.)
Whenever an interest in the land itself is recognized, the interest may be conveyed by deed describing the land, and it*is of no consequence whether the instrument specifically describe the interest, or contain full covenants of warranty, or be a plain quitclaim.
The grantors in the deed to John Helm Platt had an estate in the land by inheritance, as well as an interest by way of contingent executory devise. In Kale’s Estates, Future Interests [2d ed., §481], appears the following:
“If the transferor has a present, as well as a future interest in the property mentioned in the deed, it seems clear that there will Re no expressed intent to convey the future interest, . . .” (p. 553.)
The statute of this state relating to conveyances reads as follows:
“Every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.” (R. S. 67-202.)
By statutory definition, the terms land and real estate include “lands, tenements and hereditaments, and all rights thereto and interests therein, equitable as well as legal.” (R. S. 77-201, Eighth.) As indicated above, conveyances may be of land, or any other estate, or interest therein. (R. S. 67-205.) Interpreting this statute, the court said:
“The words ‘conveyances of land’ mean, of course, the land itself in fee simple absolute. The words ‘any other estate or interest therein’ include estates of freehold and less than freehold of inheritance, and not of inheritance, absolute and limited, present and future, vested and contingent, and any other kind a grantor may choose to invent, consistent, of course, with public policy.” (Miller v. Miller, 91 Kan. 1, 4, 136 Pac. 953.)
The public policy referred to includes the rule against perpetuities. From these statutes it is clear that, so far as conveyance by deed is concerned, the distinction between estates proper and other interests in land has been obliterated, and the result is, the word estate is used in R. S. 67-202 as a general and not a technical term. It connotes whatever the grantor could convey, and the statute is to be read as though it were phrased, “Every conveyance of real estate shall pass all the interest of the grantor therein, unless the intent to pass a lesser interest shall expressly appear or be necessarily implied in the terms of the grant.”
It follows from what has just been said that the deed to John Helm Platt was not a mere partition deed. It was a partition deed of the half interest held in common by inheritance, but it did not exclude, expressly or by necessary implication, the executory devise, and consequently the executory devise was conveyed.
Plaintiffs contend the decision in McCartney v. Robbins, 114 Kan. 141, 217 Pac. 311, related to a conveyance of a future contingent interest by an instrument containing a warranty, and should be understood as limited accordingly. Whenever a grantor gives a warranty, the warranty operates by estoppel. In the McCartney case, the court took care to decide that a contingent future interest may be conveyed by deed, and because fully alienable may be mortgaged, before mentioning the subject of warranty. The warranty in the mortgage was referred to only in connection with the subject of remedy, and was given no effect in the discussion of that subject, of the slightest consequence here.
In the case of Simpson v. Greeley, 8 Kan. 586 (1871), a railroad company quitclaimed land in which it had no interest. The court described the relation of the company to the land as a speculative chance, and said it was clear the company could make no legal conveyance of the land. The deed being at most a quitclaim deed, it was held the deed did not estop the grantor from asserting subsequently acquired title. In this connection the court quoted from the. opinion in an early California case, what was said to be a true statement of principle :
“The general doctrine prevailing in the United States is that no estate can be passed by the ordinary terms of a deed unaccompanied with covenants of warranty which is not vested in interest at the time.” (p. 597.)
The questions whether a future contingent interest in land may be conveyed by deed, and if so by quitclaim deed, were not in volved. The court did not consider those questions, did not consider the bearing of our remarkably liberal conveyancing act upon them, and did not decide them. The quotation of authority to sustain decision of the question before the court — effect of a quitclaim deed by a railroad company of Indian land not the subject of enforceable contract between the parties — cannot be regarded as a bar to independent examination of the question arising fifty-five years later, whether a contingent executory devise may be conveyed by quitclaim deed.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Btjrch, J.:
The action in the district court was one to recover an attorney fee. Defendant filed no pleading, did not appear, and judgment was rendered for plaintiff. Subsequently, defendant filed a motion to vacate the judgment. The motion was denied, on the ground the court was without jurisdiction to allow it, and defendant appealed. Defendant also appealed from the unvacated judgment, and assigns error manifest on the face of the record.
The judgment was based on the following instrument in writing pleaded in the petition:
“I hereby employ Burt Comer, attorney of Pratt, Kansas, to institute and prosecute my suit for divorce against my husband, Oscar McGuire, and I agree to pay said Burt Comer for his services as follows, to-wit:
“1. In case no recovery is had in this case, a fee of $50.
“2. In case a recovery is had in this case, a sum equal to 25 per cent of the value of the property, money, or both recovered for me. Also I agree to pay Burt Comer whatever temporary attorney’s fees he is allowed by the court.
“I further agree not to settle, compromise, or otherwise dispose of said suit without the consent of said attorney, and in case I dismiss, compromise, or settle without such consent this suit brought by him for me, I agree to pay said attorney for his services therein a sum equal to one-fourth of the amount of the property, money, or both, recovered by me.
“It is further agreed that said attorney shall not compromise or settle said suit without my consent.”
The petition alleged that, pursuant to this employment, plaintiff successfully prosecuted a divorce action on behalf of defendant, and procured for her an award of real and personal property of the valué of $3,000. The prayer of the petition was for judgment for $750, and the judgment appealed from was for that sum.
The contract was void as against public policy (Railway Co. v. Service, 77 Kan. 316, 94 Pac. 262). Plaintiff contends the provision for payment of a fee in the event defendant did settle, compromise, or dismiss her divorce action, left her free to take such a course, and purged the contract. Defendant contracted, however, not to settle, compromise, or otherwise dispose of the divorce action without her attorney’s consent. She could conclude no arrangement with her husband, however desirable, independently of her attorney, without breach of contract, and the provision referred to was in effect a stipulation relating to compensation in case of breach of contract. Reconciliation of the parties to the divorce action and amicable adjustment of their affairs not extending to full reconciliation, were thus definitely restrained. The contract in the case of Railway Co. v. Service, supra, related to an action for damages for personal injury. The contract was held to be obnoxious to public policy, whether viewed in the light of reason or authority. If there may be degrees of odiousness, a contract interposing a barrier to full control by the plaintiff over a divorce action is more deserving of censure, because of the nature of the litigation. The result is, the judgment was erroneous.
In the case of Williams v. Schrock, 118 Kan. 347, 235 Pac. 111, it was held that direct appeal without motion for new trial and without motion to set aside default, was a proper method to correct an error manifest on the face of a default judgment. The principle applies to a judgment based on a petition predicating relief on a contract void as against public policy.
The civil code enumerates grounds of demurrer for defects appearing on the face of a petition (R. S. 60-705), and then provides as follows:
“When any of the defects enumerated in section 93 do not appear upon the face of the petition, the objection may be taken by answer; and if no' objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.” (R. 8. 60-707.)
Therefore, the fact that the petition in this case did not state a cause of action was not waived by failure to call attention of the district court to the defect by demurrer or by answer. The defect in the petition is not one curable by amendment, no evidence which might be produced at a trial could sustain a judgment for plaintiff, and presence or absence of defendant when judgment was rendered could add nothing to the propriety of the judgment. The petition challenged judicial action, and the judgment is not void. It is merely erroneous. The error committed, however, was not a trial error, to be called to the attention of the distinct court by motion for new trial. The error is manifest on the face of the record, and the defendant has a remedy by direct appeal.
Since the appeal from the judgment itself is well founded, it is not necessary to consider the propriety of the court’s action in denying the motion to set aside the judgment.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
Petitioner, by habeas corpus, seeks to be released from the custody of F, A. Ernst, city marshal of the city of Holton, who is holding petitioner under a commitment issued by the police judge of the city on a judgment convicting the petitioner of violating an ordinance which provides a license fee of $150 per year to be paid by each person, firm or corporation, not a resident of the city, who sells any bread or bakery products to any person, firm or corporation in the city, and which ordinance prescribes a penalty of not less than five dollars nor more than two hundred dollars and not to exceed thirty days’ imprisonment, or both such fine and imprisonment, and shall stand committed until the fine and costs are paid. Holton is á city of the second class and had 2,800 people living in it at the time in question. Its total annual revenue then was $10,803.55, and its annual expenditures were $9,687.12.
Another ordinance of the city imposed the following license fees among others:
“Peddlers of knives, spectacles, albums and articles of a like character, per day $5, per week $25; traveling artists, per day $1, per month $15; book or map agents or canvassers, per day $1, per month $15; peddlers of all other kinds of goods, wares or merchandise not expressly provided for by ordinance, per day $5, per week $25; Provided, That this shall not apply to the sale of farm products or fruit when sold by the producer. . . .
“Com doctors, not residents of the city, per day $1; dentists, not residents of the city, per day $8. . . .
“The sum of $5 per day on each of the callings, employments and occupations following: Traveling insurance agents, traveling land agents, traveling investment agents, and other traveling agents of a like calling, employment or occupation.” .
The petitioner contends that the ordinance is invalid because it does not classify occupations, businesses or professions in the city as provided by statute. The ordinance was passed under the provisions of section 1 of chapter 101 of the Laws of 1925, which provides: ■
“That the governing body of any city of the second or third class shall have the power by ordinance to classify and license for purpose of regulation or revenue any and all occupations, businesses or professions pursued, conducted or carried on within its corporate limits which are not prohibited by law or which are not or shall not be specifically or exclusively reserved to the state or county as objects of taxation or regulation, subject to the constitution and laws of this state, and shall fix the amount of all license fees and provide for their collection and prescribe penalties for the nonpayment thereof.”
The tax here imposed is on nonresidents of the city of Holton, who. sell bread or bakery products in that city. By the ordinance, a tax is'levied on one particular class of persons who do a particular kind of business in the city. The law gives to the governing body of the city the power to classify any (and all) occupations, businesses or professions carried on within the city. The statute gave to the city the power to make the classification that is found in the ordinance. The fact that the ordinance applies only to nonresidents does not render it invalid.
The petitioner contends that the ordinance is invalid because the license fee or tax provided in the ordinance is unreasonable, unjust, discriminatory, and prohibitive. In the City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949, this court said:
“A city of the second class may impose a license tax on photographers; and the fact that a larger tax is required from a traveling or nonresident photographer than from a resident regularly engaged in the business does not render the ordinance invalid.”
In Kansas City v. Overton, 68 Kan. 560, 75 Pac. 549, this court said:
“An ordinance requiring hucksters or hawkers to pay a license of thirty-five dollars for each six months, and requiring a helper or assistant of such huckster or hawker to pay a license of fifteen dollars for the same time, is not so unjust or unreasonable in its operation as to be invalid.
“The expense of inspection and regulation, the amount of the city indebtedness and the necessary cost of carrying on the municipal government enter into the question as to whether a license tax is reasonable and just, and these are -considerations for the municipal authorities rather than for the courts.
“A city ordinance imposing a license tax on hucksters or hawkers is not invalid because it exempts from its operation those who are personally selling the products of their own or leased lands.”
In Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194, this court said:
“Before the courts can interfere with the exercise of legislative power granted to the city to license and regulate such conveyances [jitneys] it must appear that the attempted exercise of such power is flagrantly unjust, unreasonable or oppressive.”
In Lebanon v. Zanditon, 75 Kan. 273, 89 Pac. 10, a license tax of ten dollars a day on transient merchants was upheld.
It is presumed that the ordinance is valid. (37 C. J. 194-195.) The only question involved in what is left for discussion is whether or not the fee required by the ordinance is unreasonable. The rate fixed is $150 a year — about fifty cents a day for each of the business days of the year — not a very high rate. If the rule declared in Desser v. City of Wichita, supra, is followed, the ordinance cannot be declared invalid; it does not appear to be flagrantly unjust, unreasonable or oppressive. The court is not warranted in declaring the ordinance invalid.
The petitioner is remanded to the custody of the city marshal.
Burch, J., dissenting. | [
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The opinion of the court was delivered by
Thiele, J.:
The purpose of the present action was to set aside a sheriff’s deed, and grew out of a previous foreclosure action.
On December 3, 1938, William R. Smith delivered to John L. Power a mortgage covering “all of the unsold portions of the following described property in the name of said William R. Smith situated in the environs of Hoisington, in Barton county, Kansas,” to secure payment of a note. One of the tracts was described as the north half of the northeast quarter of section 5, township 18, range 13 west, in Barton county, Kansas, “except the platted portion.” Thereafter an action to foreclose the mortgage was commenced by Power, service on Smith being had by publication. On March 5, 1940, a decree of foreclosure was" rendered, and thereafter an order of sale was issued, notice of sale was given, a sale was had on April 8, 1940, at which Power was the purchaser, the sale was confirmed and a certificate of purchase was issued to Power, showing the period of redemption to be eighteen months. In each of the above the description of the real estate was as above mentioned.
On June 18, 1941, Smith filed his application to have the judgment opened and that he be allowed to answer, and that having been granted, he filed an answer, in substance alleging that he was the owner of a certain tract described by metes and bounds, “according to the recorded plat of William R. Smith’s north addition to Hoisington, Kansas,” being a part of the north half of the northeast quarter of section 5, township 18, south of range 13 west; that on December 3, 1938, he had executed a mortgage to Power, which mortgage by its terms included the north half of the northeast quarter, etc., except the platted portion thereof; that neither party intended the real estate described by metes and bounds should be included in the mortgage; and that he should be adjudged to be the owner free and clear of any encumbrance created by the mortgage. To this answer Power filed a reply charging that a fiduciary relationship existed between him and Smith, and that the mortgage was made on Smith’s express promise the mortgage would cover all real estate then owned by Smith in the environs of the city of Hoisington, and that Smith furnished the description and Power relied on it and would not have made the loan if he had known there was any exception claimed by Smith, etc., and he prayed for reformation of the mortgage, etc. A trial was then had, as a result of which the court found for Power, and on June 25,1941, it rendered judgment reforming the mortgage to include the land heretofore mentioned as being described by metes and bounds, ratifying and confirming all proceedings had, and reforming the certificate of purchase so as to include specifically the real estate described by metes and bounds. It further rendered judgment barring defendant from any right, title or interest “in and to said property foreclosed in this cause, including the property last above described, subject to his right of redemption”; .and that the redemption of eighteen months as to all of the real estate would expire on October 8, 1941. There was no redemption, and on October 11, 1941, the certificate of purchase was surrendered and the sheriff executed a deed to Power conveying the property by the description as it appeared in the mortgage, and stating, “It being understood that the above described property includes the following:” after which appears the metes and bounds description above mentioned.
On October 17, 1941, Smith filed the present action, his petition alleging the giving of the note and mortgage, the foreclosure action, the proceedings leading up to and the sale of the real estate as described in'the mortgage, the confirmation of the sale and the issuance of the certificate of purchase, the opening of the'judgment and the judgment of the court thereafter, and alleging that the effect of the judgment was to nullify the above-mentioned phrase “except the platted portion,” which reformation did not and could not have appeared in the sheriff’s notice of sale, thus excluding, the public from the knowledge that all of the property described in the mortgage as reformed was to be sold and thus eliminating possibility of competitive bidding at the sale. After making allegations of the description as contained in the sheriff’s deed, it was further alleged that as a result of the reformation of the mortgage, Smith was denied his right to the full eighteen months’ period of redemption. His prayer was that the sheriff’s deed be canceled and that the property be resold, and he be granted his full eighteen months’ period of redemption. To this petition Power demurred as not stating facts sufficient to. constitute a cause of action, and that demurrer being sustained, Smith appeals to this court.
Appellant states at considerable length the question involved in the appeal. Summarized, he states the trial court erred in holding the proceedings in the foreclosure action were res judicata, precluding the court in the instant action from setting aside the sheriff’s deed and ordering a resale of the property, where it appears the notice of sale and certificate of purchase did not describe as much property as the sheriff’s deed purports to convey. He proposes three questions for discussion: Does the district court have power to set aside the judgment of confirmation, when, after sheriff’s deed has been issued, an irregularity appears to have existed by reason of the sheriff’s failure to properly inform the public as to the exact amount of property to be sold at the sheriff’s sale? Does the confirmation of the sale become res judicata so as to prevent the court from later correcting an irregularity in the proceedings? Is the confirmation of irregular proceedings void?
In support of his contentions and to answer the questions stated, appellant has directed our attention to the provision of statute requiring notice of sale (G. S. 1935, 60-3416) and to decisions interpreting it; to the provision of statute authorizing the court, at or after the term at which a judgment or order was made to set it aside for irregularity .in obtaining the judgment or order (G. S. 1935, 60-3007, third); and to decisions pertaining thereto, dealing with the type of irregularities which warrant a court in refusing to confirm a sale or in setting aside a sale of property. We think it unnecessary to review in detail the various authorities cited, for none of them deal with a situation where the facts are like or even analogous to those of the instant case. It clearly appears that after the sheriff’s sale was held, the present appellant, defendant in the foreclosure suit, caused the judgment to be opened and filed an answer in which he set out a description by metes and bounds of the real estate included in the phrase “except the platted portion” and specifically raised the question whether it was included in the mortgage, and alleged it was not, and prayed the court for an order definitely withholding it from the terms and conditions of the mortgage and that plaintiff, appellee here, be adjudged to have no interest in it. By reply, the appellee took issue. The court heard evidence, and made the order as heretofore mentioned. No appeal was taken from that judgment.
There is no contention the trial court did not have jurisdiction of the parties or of the subject matter of the action, nor that it was without power to render the judgment. In such case, if the losing party have any complaint, he must appeal. Many of o'ur decisions are to that effect. (See, e. g., Rennolds v. Guthrie, 103 Kan. 829, 177 Pac. 359; Union Central Life Ins. Co. v. Pletcher, 144 Kan. 359, 58 P. 2d 1158.) When such a judgment has become final, it cannot be attacked collaterally (Brotton v. Luther, 141 Kan. 489, 41 P. 2d 1017). The judgment in the foreclosure action determining the particular lands were included in the mortgage, reforming the mortgage, ratifying and confirming all of the proceedings had and reforming the certificate of purchase, and fixing expiration of the period of redemption, was within the issue first raised by the ap pellant’s answer. The judgment rendered was one the court was competent and authorized to render, and if there was any erroneous ruling or irregularity therein, relief must have been sought by appeal. The judgment was not void and was not open to collateral attack.
The petition filed in the present action was sufficient on its face to present the matters heretofore discussed—the question of res judicata was properly raised by the demurrer, arid the ruling of the trial court thereon is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was commenced as an action to foreclose a mortgage on real estate. Certain defendants held mechanic’s liens on the lands involved. From a judgment allowing two mechanic’s lienholders prior liens the mortgagee appeals. Two other mechanic’s lienholders appeal insofar as their claim of lien on additional real estate was denied. The amounts for which various liens were allowed are not now in dispute.
■ The plaintiff filed its petition alleging that three defendants, each surnamed Jones and hereafter called mortgagors, had executed and delivered to it their promissory note, dated December 4, 1939, for the sum of $6,800 payable in monthly installments, and that default had been made, and that the amount due and declared upon was $5,015.11, plus a penalty of two percent amounting to $100.30; that to secure the note the mortgagors had executed and delivered a mortgage to plaintiff on “the west 180 feet of the south 214 feet of lot nineteen (19), in Westfield Acres,” etc., and that certain named defendants claimed an interest in the real estate, but whatever their claims, they were inferior to that of plaintiff. It prayed for personal judgment against the mortgagors for $5,115.41 and interest, for the foreclosure of its lien, and that it constituted a first lien, etc.
The defendant United Brick & Tile Company, hereafter referred to as the Tile Company, filed its answer and cross petition setting up its lien in the amount of $970.40. This answer alleged in detail that before it furnished materials, it had ascertained the plaintiff had received and recorded its $6,800 mortgage and by reason thereof it furnished materials on a credit basis because it expected to be paid out of the proceeds of'the loan; that the amount advanced by plaintiff was approximately $5,000; that if plaintiff had complied with its agreement with the mortgagors concerning which the Tile Company had been advised and upon the terms of which it extended credit, its bill would have been paid in full, and that because of the facts alleged plaintiff was estopped to assert its lien was prior to that of the Tile Company. We need not notice other allegations. It prayed for foreclosure and that its lien be declared a first lien on the real estate.
The defendants McClarens, doing business as S'. B. McClaren & Son Lumber Company, and hereafter referred to as the Lumber Company, filed an answer and cross petition similar to that of the Tile Company but alleging direct inquiry of plaintiff as to the loan and assurance the proceeds would be available to pay for labor and materials. The Lumber Company prayed for foreclosure of its mechanic’s lien and that its lien be declared a first lien.
. Answers and cross petitions were also' filed by the Advance Furnace Company, hereafter called the Furnace Company, and by Richard LaFoy, doing business as Richard LaFoy Plumbing and Heating Company, hereafter called the Plumbing Company. Both defendants sought to foreclose their mechanic’s liens. The mortgagors answered admitting execution of the note and mortgage, and alleged plaintiff had failed to pay them approximately $1,800 of the amount of the note.
The pleadings of other defendants are not material to this appeal.
A trial was had and judgments rendered. The journal entry of judgment is somewhat involved, but the net result was that all the liens were foreclosed. The Tile Company was given judgment-for $1,059.47, the Lumber Company for a total of $704.57, the plaintiff for $5,273.97, the Furnace Company for $381.56, and the Plumbing Company for $666.90, all of these judgments being against the mortgagors and to bear interest from date of the judgment. The lien of the plaintiff was adjudged to be a first lien but subject to the liens of the Tile Company and the Lumber Company,- which were declared of equal priority, and the liens of the Furance Company and the Plumbing Company were of equal priority and subject to the three liens first mentioned. The several parties in interest filed motions for new trials, all of which were denied.
The plaintiff, hereafter called the appellant, appeals. During the course of the trial the Furnace Company and the Plumbing Company obtained leave to amend so that their liens would cover real estate additional to that described in the mortgage, and as more fully mentioned later. They were denied relief -as to the additional real estate. They also appeal, the substance of their complaint being they were not given a lien on the additional real estate.
The substance of appellant’s contentions is that under the decisions of this court it was entitled to an unlimited and unrestricted first lien on the mortgaged real estate and' that it was not estopped from claiming and being allowed such lien.
As a preliminary it is observed that appellant did not advance to the mortgagors the entire proceeds of the mortgage loan, and while it claims a first lien, the amount thereof is limited to the advances it actually made plus a two-percent penalty provided in its note.
In support of its contention that it is entitled to priority, appellant directs our attention primarily to the early case of Martsolf v. Barnwell, 15 Kan. 612, where it was held that the lien of a real-estate mortgage for a single amount and duly recorded prior to the commencement of improvements was prior to a mechanic’s lien, it there appearing the mortgage made no provision for advance payments and only a small portion had been advanced prior to commencement of the work. That holding was approved in Security Stove & Mfg. Co. v. Sellards, 133 Kan. 747, 3 P. 2d 481. In the Barnwell case there is nothing in the briefs as summarized in the reports nor in the opinion that indicates the full proceeds of the loan were not paid to the mortgagor. In the Sellards case two mortgages were involved. Under one the full amount of the mortgage was paid, and mechanic’s lienholders appealed from that part of the judgment denying them priority. They sought to have this court overrule the Barnwell case, which the court refused to do. Under the other mortgage the full amount had not been paid, but priority was denied for other reasons which need not be noted. But even though we give full effect to the rule announced in the two cases mentioned, it cannot be said they , are decisive of appellant’s rights to a first lien. We must consider also whether appellant’s course of conduct estopped it to claim priority, and what effect its failure to pay the full proceeds of the loan had upon the rights of the lien claimants.
In the briefs we have many citations to authorities dealing with the doctrine of equitable'estoppel. Appellant directs our attention to Gray v. Zellmer, 66 Kan. 514, 72 Pac. 228, where it was held:
“The doctrine of equitable estoppel does not operate in favor of one who has knowledge of another’s rights, or who has convenient and available means of obtaining such knowledge.” (Syl. H 2.)
Appellant also calls attention to the definition of equitable estoppel set forth in Schott v. Linscott, 80 Kan. 536, 539, 103 Pac. 997, while appellee directs our attention to Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 435, 65 P. 2d 584, where a quotation from 10 R. C. L. 689, is cited approvingly.
In 31 C. J. S, 236, equitable estoppel is defined thus:
“Equitable estoppel or estoppel by misrepresentation is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting, rights against another person relying on such conduct; and it arises where a person, by his acts, representations, or admissions, or even by his silence when it is his duty to speak, intentionally or through culpable negligence induces another to believe that certain facts exist, and the other person rightfully relies and acts on such belief, and will be prejudiced if the former is permitted to deny the existence of such facts.” (§ 59.)
In 19 Am. Jr. 634, the term is defined as follows:
“Equitable estoppel or estoppel in pais is a term applied to a situation where, because of something which he has done or omitted to do, a party is denied the right to plead or prove an otherwise important fact. Any more exact or complete definition than this is difficult to formulate for the reason that an equitable estoppel rests largely on the facts and circumstances of the particular case, and consequently, any attempted definition usually amounts to no more than a declaration of an estoppel under those facts and circumstances.” (§ 34.)
And in the same volume at page 637, in treating of its function, it is stated:
“The proper function of equitable estoppel is the prevention of fraud, actual or constructive, and the doctrine should always be so applied as to promote the ends of justice and accomplish that which ought to be done between man and man.” (§ 39.)
In Golden Belt Lbr. Co. v. Klinzman, 138 Kan. 877, 28 P. 2d. 736, the seller of the real estate claimed his-purchase-money- mortgage had priority over a mechanic’s lien for improvements which were commenced before the mortgage was recorded. The mechanic’s lien-holder contended the seller was estopped to claim priority by reason of his conduct, and it was held:
“While it is the general rule that a mortgage to secure the purchase price, given at the time the property is acquired and as a part of the entire transaction, takes precedence over prior judgments and existing and subsequent liens against the mortgagor, such a mortgage is subordinate to liens for improvements authorized by the mortgagee or done with his knowledge and consent, or where, by his acts and couduct, he has estopped himself to assert priority.” (Syl.)
Without going into the details thereof, the evidence disclosed that before the Tile Company extended credit and furnished materials it investigated and learned that appellant had placed on record a mortgage for $6,800, the proceeds of which were to be used to pay for improvements, and that the reason it was not paid was because of the failure of appellant to pay to the mortgagors the full amount of the loan. The Lumber Company presents a stronger case. It made direct inquiry of appellant and was assured the loan had been made and the proceeds would be available to pay labor and material claims. Further than that, an exhibit offered by appellant showed that between December 9, 1939 (five days after date of its note), and July 31, 1940, it issued twenty-three checks disbursing part of the loan and that eighteen of them were made to one of the mortgagors and the contractor or some other person jointly, and that thereafter only two checks bore the name of any of the mortgagors, the others being payable to persons who furnished labor or materials on the job. These various checks totaled $5,015.11, and with the two-percent penalty added constituted the amount for which appellant sought judgment. The appellant refused to pay out the balance of the loan either to the mortgagor or to the materialmen.
We are of opinion the materialmen, in seeking information as to the source from which they were to be paid, and in learning that a mortgage had been made for the purpose of financing construction, had a right to rely thereon, at least to the extent that the amount of the loan would be advanced, whether they received it or not. The Lumber Company is in a stronger position, for it made specific inquiry and was assured the proceeds would be so used. Of course, if the loan had been fully paid, but the materialmen had not, they would not have been entitled, for the appellant would have fully performed. No doubt at the time the loan was made and the mortgage recorded, the appellant expected to perform fully. That does not mean, however, that its subsequent failure to do so was not inequitable to the materialmen who were furnishing 'materials under the belief there would be moneys available to pay them. There is no claim the materialmen are responsible for appellant’s failure to perform fully, and the record is barren as to the reason appellant did not advance the full payment.
Appellant argues that its failure to advance more than it did has not prejudiced the materialmen, that its lien is only for the amount advanced and not the face of the note, and that its judgment and lien being smaller, the value of the interest to which mechanic’s liens would attach is greater. In one .sense that would be true, but in another it would not. The materialmen acted on the assumption they would be paid from the proceeds of the loan—not that they would have to perfect and foreclose mechanic’s liens. Had the full proceeds of the loan been advanced, the mortgagors would have had ample funds to pay the Tile Company and the Lumber Company, and the mortgagor Herbert C. Jones testified he would have done so. The practical effect of the trial court’s judgment was to place the parties in the position they would have occupied had the appellant performed its agreement fully. The representations of the appellant as to the amount it was loaning were of a material fact, and known to it, the materialmen had a right to rely on the representations, it was naturally to be expected they would rely on them, they did rely on them, furnished materials on credit they stated they would not otherwise have furnished, and by reason thereof they changed their positions for the worse. The very method in which appellant disbursed such portions of The sum loaned as it did, shows that it was carrying out, in part, the very thing it assured the Lumber Company it would do.
After full consideration we have concluded the trial court did not err in determining the priority of the several liens.
Taking up the appeals of the Furnace Company and the Plumbing Company, it is noted that their original mechanic’s lien statements claimed a' lien only on the real estate as described in the mortgage noted above. During the course of the trial it developed that the defendant Herbert C. Jones, one of the mortgagors, had contracted in writing to purchase a tract described as the west 180 feet of lots 19 and 20 on Westfield avenue in Westfield addition, being the larger tract of which the first described tract is a part, for a total consideration of $850, the seller agreeing to convey the portion of each lot separately upon payment of one-half of the total consideration. The written contract was at first admitted but was later stricken from the evidence for the reason the mortgage registration tax had not been paid. We need not determine whether or not this ruling was correct. The defendant Jones testified orally to the arrangement that he had received a deed to the tract included in the mortgage and had paid all but $200 of the total consideration for the entire tract; that his purpose in getting the entire tract was “principally so I could pick out my neighbors if, as, and when I saw fit to have them,” and that he might build on it, sell it, let others build, or keep it himself. With this evidence before the court the appealing parties were permitted to amend their lien statements and pleadings. The mortgagors have filed no abstract showing any additional testimony and no brief in support of the judgment so far as it is in their favor. From the evidence as abstracted it appears the improvements made were to the entire tract and not merely to that portion to which the mortgagors had received a deed. It has been held on many occasions that a mechanic’s lien may attach to the owner’s equitable interest in real estate. (See Ehrsam & Sons Mfg. Co. v. Rice, 153 Kan. 483, 112 P. 2d 95, and cases cited.) Under the evidence the Furnace Company and the Plumbing Company were entitled to coordinate liens, not only on that portion of the real estate the legal title of which was in the mortgagors, and as adjudged by the trial court, but to coordinate liens on the equitable interest of the mortgagors in the remainder of the tract. No other lienholder appealed from this phase of the litigation, and their liens are only as adjudged by the trial court.
Insofar as the appeal of the plaintiff association is concerned, the judgment of the trial court is affirmed. Insofar as the appeals of the Furnace Company and the Plumbing Company are concerned, the judgment is reversed and the cause remanded to the trial court with instructions to extend their liens consistent with this opinion. | [
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The opinion of the court was delivered by
Hoch, J.:
In an action brought in district court, plaintiffs sought to impress a trust upon certain real estate in contravention of a devise made in a will, the cause of action being based upon an alleged oral agreement on the part of the testator. The defendants demurred on the grounds that the district court was without jurisdiction, that the petition did not state a cause of action and that another action was pending between the same parties and involving the same cause of action. The demurrer was overruled and defendants appeal.
Brief statement of the facts will suffice. Samuel Yeager, a resident of Kingman county, died testate on July 13, 1941. By the terms of his will executed June 23, 1941, he devised the real estate in question to his wife. In an original action in district court, the plaintiffs, children of the testator by a former marriage, alleged an oral agreement, made some years prior to the execution of the will, between Samuel Yeager and his'sister, who, it was alleged, was, at the time of the agreement, the owner of the land, under which it was agreed that the land would be devised to plaintiffs. It is not necessary to recite at length the averments by which the plaintiffs sought to establish the alleged oral contract, to impress a trust upon the land in contravention of the express terms of the will, and to require the defendant to reconvey the land to them. Admittedly, what they sought to accomplish was, in effect, to nullify the plain intent and purpose of the will by taking all beneficial interest in the real estate from the devisee and establishing it in themselves. In line with an unbroken series of decisions by this court it must be held that the action was in effect a “contest” of the will. If the rule long established in this state by these many decisions were to be disregarded, it might perhaps be argued that plaintiffs were not, technically, “contesting” the will, but were merely seeking to impress a trust on the realty in the hands of the devisee, which would leave her with only the bare legal title (which title plaintiffs ask to have “reconveyed” to them). Our forthright decisions, at variance with that academic view, have held that any action whose plain and essential purpose is to get rid of a will — to effect a result contrary to the obvious intent of the testator—is an action “to contest” the will and can only be brought in conformity with the statutes dealing with the contest of wills. (Axe v. Wilson, 150 Kan. 794, 96 P. 2d 880; Rishel v. McPherson Co., 122 Kan. 741, 253 Pac. 586; rehearing, 123 Kan. 414, 255 Pac. 979, 124 Kan. 31, 257 Pac. 939; Mayer v. Taylor, 142 Kan. 54, 57, 45 P. 2d 858; Kunze v. Kunze, 145 Kan. 72, 64 P. 2d 558; Koch v. Wolf, 146 Kan. 247, 62 P. 2d 1088.) In Rishel v. McPherson Co., supra, wherein an heir sought to recover property on the ground that a will which cut her off, if valid, was procured by fraud, it was held that “her remedy was by action to contest the will, and not to establish a constructive trust.” (Syl. ¶ 4.)
Did the district court have original jurisdiction to entertain the instant action, which was, in effect, an action to contest the will? That question was squarely determined in the negative in the recent case of Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438. It was there held that under the present probate code which became effective July 1,1939, the probate court in which a will is offered for probate has exclusive original jurisdiction to entertain a proceeding to contest the will. The question was fully discussed in the opinion in that case and need not be discussed here. District courts now have jurisdiction in such matters only upon appeal. As was clearly pointed out, this denies no substantial right to those seeking to upset a will. It is merely a question of where they must first seek their remedy. If aggrieved by the decision of the probate court they may not only appeal to the district court, but under the provisions of the new code the district court, upon such appeal, is given “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 of the matter,” and the court “may allow or require pleadings to be filed or amended.” (See G. S. 1941 Supp. 59-2408.)
It follows that the action should have been dismissed for lack of jurisdiction. It is unnecessary to discuss the other grounds set up in the demurrer.
The judgment is reversed with directions to dismiss the action. | [
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The opinion1 of the court was delivered by
Wedell, J.:
This is an appeal by the plaintiff from an order vacating and setting aside a default judgment in rem on the motion of the garnishee defendant. The principal defendant is not a party to the appeal and his rights or liability are not involved. The controversy is solely between plaintiff, the appellant, and the garnishee defendant, appellee.
The appellant, June E. Herd, a resident of the state of Missouri, filed an action in the district court of Sedgwick county against the defendant, Stanley N. Chambers, also a resident of Missouri, to recover damages for the alleged breach of a marriage contract. Service on Chambers was by publication. A garnishee summons was served upon appellee, Wheeler-Kelly-Hagny Trust Company, in Sedgwick county. The garnishee defendant answered it had no property in its possession or under its control belonging to the defendant, Chambers, and was not indebted to him. Appellant, within the twenty-day period allowed by G. S. 1935, 60-945, served notice on the appellee that she elected to take issue on its answer and would maintain it to be liable as garnishee. The principal defendant, Chambers, defaulted. Appellant took judgment against Chambers by default in the sum of $25,000, the amount prayed for in her petition. The judgment was as follows:
“It is therefore ordered, adjudged arid decreed that the plaintiff have and recover the sum of twenty-five thousand dollars (3525,000) compensatory damages, the same to be levied against and paid out of any and all properties, moneys, credits, goods, or assets whatsoever of the defendant in the hands of the Wheeler-Kelly-Hagny Trust Company and subject to the garnishment proceedings pending herein’’ (Emphasis supplied.)
Appellee’s motion to vacate and set aside the judgment alleged:
“That the Wheeler-Kelly-Hagny Trust Company, garnishee herein, is affected by said judgment and entitled to a vacation thereof in accordance with the provisions of the General Statutes of the state of Kansas, 60-3009.
“That said Wheeler-Kelly-Hagny Trust Company, garnishee herein, was served with a garnishment summons and filed its answer to the effect that it had no property, moneys, credits, goods or assets whatsoever of the defendant in its hands, and no exception was taken to> said answer.
“That there was no property of the defendant in the state of Kansas, and • particularly in Wichita, Sedgwick county, Kansas, subject to attachment or garnishment, and the pretended service of summons by publication is void, and by reason thereof the court has no jurisdiction of the parties or subject matter of the action, and was and now is without jurisdiction to render judgment in rem, or otherwise.
“That said judgment appears of record and is a cloud upon the title of property, particularly of real estate of the W'heeler, Kelly, Hagny Trust Company, and materially affects the transaction of business by said garnishee.”
The motion was sustained during the same term of court that the judgment was rendered. It is from that order and from all adverse rulings that plaintiff appeals. Her assignment of error reads:
“The court erred in vacating the judgment rendered on January 13, 1941, and in failing to hear the evidence on the exceptions to the garnishee’s answer.”
Appellee insists the second portion of the assignment of error was not presented to the trial court. The briefs on both sides contain statements that certain legal questions here presented by the respective parties are now raised for the first time. Other than the default judgment, the motion to vacate, and the order sustaining the motion, the record itself is silent as to what specific questions were argued below. Our review must be based upon the record presented here. In view of that record it is impossible for us to understand how appellee’s motion could have been argued without the trial court being advised that the issues in the garnishment proceedings were undetermined at the time the judgment was vacated. The journal entry of judgment clearly states the court examined the files. It was therefore advised the garnishment issues remained undetermined and were then standing for trial. The second part of the specification of error is not that the court refused to hear evidence on the garnishment issues. Those issues had never been set for trial and neither of the parties offered evidence on those issues when the motion to vacate the default judgment was heard. The question presented by the record before us is whether the trial court erred in vacating the default judgment before the garnishment issues were determined.
Appellee’s motion was based upon the contention the default judgment was void. The basis of that contention is contained in its motion. The Statute, G. S. 1935, 60-3009, cited in the first paragraph of the motion, does not purport to state grounds upon which a judgment will be deemed void. It merely declares:
“A void judgment may be vacated at any time, on motion of a party or any person affected thereby.”
Manifestly, the facts alleged in the last paragraph of the motion could not render the judgment void. The other two paragraphs of appellee’s motion clearly disclose the theory upon which it contended the judgment was void. It was, first, that appellant had taken no exception to its answer. That statement was clearly contrary to the record. The second ground or theory of the motion was that there was no property of the principal defendant in this state which was subject to garnishment, and hence the substituted service on the principal defendant was void and the court was without jurisdiction to render the default judgment. Whether there was such property in the state was the fact to be determined in the trial of the garnishment action.
Appellee’s motion did not state, and appellee does not now contend, the publication service on the principal defendant or the service of summons in garnishment-were void or in any manner defective. On the contrary, appellee filed its answer and appellant promptly elected to take issue on that answer as authorized by G. S. 1935, 60-945. The sole issue between appellant and appellee, as joined by their respective affidavits which constituted the plead-, ings in the garnishment proceeding, was whether appellee had property in its possession or under its control belonging to the principal defendant or whether appellee was indebted to the principal defendant. That issue between appellant and appellee stood for trial as a civil action. (G. S'. 1935, 60-945.) Until the garnishment issue was tried and decided in favor of appellee, the default judgment was not void upon any ground presented by the motion of appellee. We are now concerned only with the motion filed by appellee and with the order sustaining that particular motion and not with some other ground or grounds appellee possibly or probably might have presented in its own defense or in defending the action for the principal defendant.
A default judgment against a principal defendant on substituted service, where garnishment proceedings are invoked as a basis for substituted service, is properly- rendered against the principal defendant when that defendant is in default. (Chambers v. Bane, 91 Kan. 88, 136 Pac. 923.) Such judgment had been rendered in the instant case and it was expressly and properly made “subject to the garnishment proceedings pending herein.” When garnishment, as here, is not had in aid of an execution, the judgment in the principal action is taken first and the trial of the garnishee action is had later. G. S. 1935, 60-951, provides:
• “The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant, as parties defendant, and all the provisions for enforcing judgments shall be applicable thereto; but when the garnishment is not in aid of an execution, no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, and if the defendant have judgment, the garnishee action shall be dismissed with costs.” (Emphasis supplied.)
See, also, Chambers v. Bane, supra, and Titus v. Vansickle, 142 Kan. 552, 554, 50 P. 2d 972.
If, upon the trial of the garnishee action in the instant case, it is determined the garnishee is not liable to the principal defendant, then, of course, the substituted service fails and the default judgment will not be permitted to stand. (Chambers v. Bane, supra, p. 90.) The default judgment, in view of the facts before us, cannot be set aside until the garnishee action is tried. Were the rule otherwise- a garnishee defendant could defeat the garnishment proceedings against it and also the action against the principal defendant by merely filing an affidavit of nonliability. Clearly, such a result was not contemplated by the lawmakers.
It may also be noted appellee does not now insist the default judgment was void. It first contends, the trial court, within the same term, has absolute control over its judgments and can set them aside. That a court has complete control over its judgments within the term they are rendered is too well- established to require citation of authority, but manifestly the basis of such control is the exercise of sound discretion. (34 C. J. 207; Isenhart v. Powers, 135 Kan. 111, 9 P. 2d 988.) The instant case does not present a question with respect to the exercise of discretion. Here specific grounds were alleged upon which the court held the default judgment to be void. That specific ruling, and no other, is here for review. It cannot be sustained.
Appellee next urges two other grounds upon which it contends the order vacating the judgment should be affirmed. Both of those grounds present entirely new legal questions. Both of them are utterly foreign to the motion upon which the trial court ruled. If appellee believes it has discovered other grounds than those previously presented to the trial court on which the judgment can be set aside, such grounds must be presented first to a court of original jurisdiction and not to a court which has only appellate jurisdiction of the particular action.
The judgment is reversed with directions to reinstate the default judgment previously rendered.
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The opinion of the court was delivered by
Harvey, J.:
This was an action in ejectment for partition and an accounting of rents and profits. Defendants have appealed from a ruling of the court upon a question of law, in advance of the trial, in which the court held the defense pleaded was barred by the statute of limitations.
From the petition it appears that plaintiff is the only child of a deceased daughter of Sarah Ann Lilly, who died intestate May 14, 1925, the owner and in possession of the real property in controversy; that he became 21 years of age in April, 1941, and brought this action in 1941; that defendants are a son and daughter of Sarah Ann Lilly and are in possession of the real property; that plaintiff and defendants are tenants in common, each owning an undivided one-third interest in the property; that defendants withhold possession of the property from plaintiff and refuse to account for rents and profits.
The answer among other things alleged that by a decree of divorce on March 16, 1923, Sarah Ann Lilly became the legal owner of the real property in controversy, and about that time she and defendants entered into an oral agreement, “That the said Sarah A. Lilly would make her home with Don Lilly and Zola Lilly Nell and they would maintain and provide for her the necessities and comforts of life and look after the use and management of her property for the balance of her life, and Sarah A. Lilly, in consideration therefor, would give to these answering defendants the above-described real property and all other property she might own at the time of her death”; that defendants carried out this agreement on their part, but “That Sarah A. Lilly made no provision by deed, will or other instrument to convey or devise her property to these answering defendants.”
By reply plaintiff denied the oral agreement alleged by defendants and alleged if such an agreement was entered into defendants are barred by the statute of limitations.
For the purpose of having the court rule upon the question of law there was no dispute as to the facts. Plaintiff is the sole grandson of Sarah Ann Lilly and defendants are the sole surviving children. The agreement for maintenance and support and to convey the land was made between Sarah Ann Lilly and defendants in March, 1923, and was fully carried out by defendants. Sarah Ann Lilly died intestate in May, 1925, leaving the plaintiff and the two defendants as her sole and only heirs at law, and without making any devise or conveyance of the land under the agreement. Her estate was probated and the administrator discharged October 10, 1927. Der fendants entered into possession of the land some time after the death of Sarah Ann Lilly. The trial court held that the agreement made in March, 1923, became executed on the part of defendants in May, 1925, at which time they were entitled to performance by Sarah Ann Lilly or by her personal representative. They took no steps to have that contract enforced. The court held the right of action under this oral contract was barred by the three-year statute of limitations.
We shall refer to the parties as they appear in the court below. On behalf of defendants it is argued plaintiff is endeavoring to use the statute of limitations as a weapon of attack rather than a shield of defense; that such a statute cannot be used to uphold a claim for affirmative relief, citing Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844; Burditt v. Burditt, 62 Kan. 576, 64 Pac. 77; Gibson v. Johnson, 73 Kan. 261, 84 Pac. 982, and Capell v. Dill, 82 Kan. 652, 109 Pac. 286. This general statement is correct, but in our judgment it has no application here. Plaintiff does not base his cause of' action on any statute of limitations. As an heir at law of Sarah Ann Lilly, who died intestate, he is the owner of an undivided one-third of the property in question. As such owner he seeks partition of the property and other relief consistent with such ownership. Defendants make no defense as to those claims. They claim under a separate and distinct set of facts. They assert a right to all the land upon an oral contract they made with Sarah Ann Lilly two years before her death, that if they would do certain things she “would give” them the real property in controversy and all other property she might own at the time of her death. They allege they performed the contract on their part, but that she failed to perform the contract on her part. Obviously, their right of action to enforce the oral contract accrued at the time of her death. It was this cause of action asserted by defendants to which plaintiff pleaded the statute of limitations. We think the court correctly held the three-year statute of limitations to be applicable. See Muckenthaler v. Noller, 104 Kan. 551, 189 Pac. 453; Poss v. Steiner, 118 Kan. 595, 236 Pac. 640; McCarthy v. Sink, 152 Kan. 659, 670, 671, 107 Pac. 790; and for cases more directly in point on the facts of this case, see Kunze v. Kunze, 145 Kan. 72; 64 P. 2d 568, and Pownall v. Connell, ante, p. 128, 122 P. 2d 730.
Defendants contend they are in possession of the property, claiming ownership thereof, and are entitled to the quiet enjoyment and use thereof, and that such right is not barred by any statute of limitations. Under this heading they cite the statute, G. S. 1935, 60-1801, and cases to the effect that one in possession may sue to quiet his title at any time. (Giltenan v. Lemert, 13 Kan. 476; Neve v. Allen, 55 Kan. 638, 41 Pac. 966; Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799; Cox v. Watkins, 149 Kan. 209, 87 P. 2d 243, and cases of similar import.) This point is not well taken. Defendants did not go into possession of the property in question within the lifetime of Sarah Ann Lilly, nor by virtue of any deed, will or other instrument executed by her. Upon her death intestate plaintiff became the owner of an undivided one-third interest in the property. When defendants thereafter went into possession of the property they of necessity did so as cotenants of the plaintiff. Their possession was not adverse to him, they did nothing to assert any rights 'against him, they make no contention any statute of limitations runs against his action for partition and other relief, and they have no right as against him to assert title to all of this property by reason of the fact of their possession. See Schwab v. Wyss, 136 Kan. 54, 12 P. 2d 719.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff instituted this suit to establish his interest in certain real estate. A judgment was rendered in his favor, and defendants’ motion for a new trial being overruled, they appeal to this court, their specifications of error covering the matters hereafter discussed.
Omitting formal parts, the amended petition, hereafter called the petition, alleged that on February 8, 1934, Clarence Stephens and wife, predecessors in title of the plaintiff, were the owners of three tracts of real estate, and were indebted to Chas. B. Farwell in the sum of $1,085, secured by a mortgage on the real estate, and on that date the Stephenses executed to Farwell a quitclaim deed, which though absolute in form was intended by the parties to be a mortgage and security for the loan; that on the same day an agreement headed “Option on Real Estate” was entered into by Stephens 'and wife and Farwell wherein it was agreed that if Stephens would pay Farwell $1,085 with interest on or before eighteen months thereafter Farwell would reconvey the property. Of this property one tract was a farm subject to an oil and gas lease, from which, when suit was filed there were moneys impounded, one tract was a small residence from which plaintiff had received rents, and the other tract was a residence rented to one of the defendants. Under the above agreement Farwell agreed to convey to Clarence Stephens and wife within eighteen months on their payment to him of $1,085 with interest and any taxes paid by Farwell. This agreement was extended four times and $1,300 was paid thereon. The petition further alleged the payment of that sum and also that certain rent moneys were due, and that by assignment from Clarence Stephens and wife of the above contract, plaintiff became the owner and holder of all .their interest. It was also alleged that Chas. B. Farwell died in November, 1935, after he had received the $1,300 on the contract and that his sons Frank and Henry were appointed as executors of his estate; that efforts to make settlement had been made, but that the executors refused to make settlement without an order of court directing them to do so. Plaintiff claimed that by reason of the payments made, and the rentals due, there should be an accounting, and if any sum was found due to defendants, plaintiff was ready, able and willing to pay the same into court. His prayer was that the court determine the rights between parties and that he have judgment establishing his title. Defendants’ demurrer to this petition was overruled, the ruling is assigned as error and will be mentioned later.
The defendants answered at length. Very briefly stated, they setup a history of the taxes, rents, etc., on each tract, alleged the deed to C. B. Farwell was absolute; that Stephens had failed to perform the option contract; that Stephens had filed no claim against the estate of Farwell; that while defendants insisted the petition stated no cause of action, if any existed it was barred by the statute of limitations, etc.
At the commencement of the trial, defendants objected to the introduction of evidence because the petition did not state a cause of action, because no claim had been filed against the Farwell estate, and because any action on the contract of February 8, 1934, was barred by the statute of limitations. This objection was overruled and the trial proceeded.
The trial court made extensive and detailed findings of fact, which we summarize. On August 22, 1931, Clarence Stephens and wife delivered to C. B. Farwell, also referred to as Chas. B. Farwell, their note for $1,000 due in five years secured by mortgage on the involved real estate and on February 8, 1934, they delivered a quitclaim deed to Farwell, reserving to themselves the use, rents and profits for eighteen months. On the last-mentioned date Farwell executed an instrument entitled “Option on Real Estate,” heretofore mentioned in reviewing the petition, also a lease for eighteen months. On August 5, 1935, the option was extended and thereafter Stephens paid Farwell $1,300. The total assessed value of the real estate in 1934 was $3,685. Farwell died testate on November 18, 1935, and his sons Frank and Henry were appointed executors. Thereafter several conferences were held by the parties in interest and about September 3, 1936, a statement was prepared showing that the loan was $1,085 and that interest, taxes and repairs added made a total of $2,187.50; that $1,300 had been paid, there was a rent credit of $180 and that the balance due on the last date was $707.50. There was also a finding the Stephenses had collected oil royalties of $293.98 while in possession after March, 1934, and that there were impounded oil royalties of $269.56. Omitting detailed references to the several tracts, etc., the court found the transaction was intended by all the parties as a sale and purchase of real estate, and after setting up details of the accounting, found there was due a balance of $1,324.96, which should bear interest from November 13,. 1941, and that the costs of the action should be divided, and that the. plaintiff should have six months in which to make payment, failing which, plaintiff’s interest in the real estate should be forfeited; that in the event plaintiff make the payment then he is entitled to receive the impounded oil royalties, and if he fail, the impounded royalties should be paid to the defendants. The conclusions of law were consistent with the findings.
The defendants filed their exceptions to the findings and conclusions as made, and for the substitution of those requested by them. We note only their specific request that the court conclude the plaintiff’s claim was one enforceable only against the estate of Charles B. Farwell and barred by the probate code. The defendants also moved for a new trial. These motions were denied and the trial court rendered judgment in accordance with its findings and conclusions.
Appellants contend the petition did not state a cause of action. It is first contended the plaintiff pleads a deed and says it is not a deed but a mortgage, then pleads the option for the purchase of real estate, which negatives the allegation the deed was a mortgage; that the terms of the option contract are so absolute and certain there is no room for either pleading or evidence to the contrary (Fabrique v. Mining Co., 69 Kan. 733, 77 Pac. 584); that plaintiff does not allege performance further than payment of $1,300, and there is no allegation that payment was made on the debt; that time was of the essence of the contract, and that a circumstance which shows plaintiff did not rely on the deed as being a mortgage is that he took from his father and mother an assignment of the option contract and not a deed. To support all of the above contentions defendants direct our attention to the petition as well as to matters arising during the trial.
The gist of the contention made is that the petition was not framed upon a distinct and definite theory and is supported primarily by the first section of the syllabus of Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619. Our attention is directed to other cases where that case has been cited, among them being Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965. In the latter case it was said:
“In Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619, it was held that plaintiff must frame his petition on a distinct and definite theory, and upon that theory the facts alleged must state a good cause of action. The case has been cited on a number of occasions, and the force thereof has been diminished.” (Citing cases.) (p. 853.)
In other cases it has been held that inconsistent allegations do not make a petition demurrable. (See, e. g., Fetzer v. Williams, 80 Kan. 554, 103 Pac. 77; Trousdale v. Amerman, 124 Kan. 614, 261 Pac. 826.)
We are of opinion the trial court ruled correctly on the demurrer. The plaintiff pleaded all the facts of the various transactions, and his contentions with respect to them, all leading to his claim that he had an interest in the real estate; that the extent of his interest was in controversy; that possibly some sum was due to the defendants; that the court should determine that sum and he was ready, able and willing to pay it. The fact the court did not fully agree with his claim as to legal effect of the deed and option contract is not a reason for saying his petition was demurrable as not stating a cause of action.
It is apparent that plaintiff sought the aid of a court of equity to have determined his right in the premises. The suit is somewhat out of the ordinary, but it is of that class where the court has power to apply settled rules to unusual conditions and to do equity. (Marquez v. Cave, 134 Kan. 374, 5 P. 2d 1081; Stady v. The Texas Company, 150 Kan. 420, syl. ¶ 5, 94 P. 2d 322.)
It is also contended the demurrer should have been sustained because the action was barred. The contention is that Farwell having died in 1935 and an administration then started, suit must have been started within one year, under G. S. 1935, 22-727. It may be observed that in 1935 the probate court was concerned with real estate only in the event it was necessary to sell the same for statutory reasons. The petition here makes it clear that the plaintiff or his parents, through whom he claims, were in possession of the three tracts of real estate at all times under an asserted claim of ownership, and except as they desired a settlement of their obligation to Farwell or his estate, they need never have commenced any suit. The decision in Hurst v. Hammel, 153 Kan. 827, 113 P. 2d 1045, the only case cited by appellants, does not support their contention. Under the facts alleged in the petition the only possible claim for money was that of defendants against the plaintiff, not one of plaintiff against the defendants or the estate of their ancestor.
The ruling of the trial court on the demurrer to the petition was correct.
Appellants’ contentions as to the rulings on their objection to the introduction of evidence and their demurrer to plaintiff’s evidence, are placed on the same grounds urged against the petition. We therefore do not discuss those rulings further.
Appellants also contend the trial court erred in the admission of testimony. Complaint is made that testimony of an attorney’s secretary as to the statement of account as due September 3, 1936, previously mentioned, was a privileged communication. We think it clear the conversations leading up to the preparation of the statement were had not only between the attorney and his client, but as part of a general conference at which plaintiff’s father and his attorney were present. There was no privilege under the circumstances. It is further objected that the only persons pretending to speak for the estate were the two executors, and that they could make no agreement affecting the status of the parties as it existed at the date of the death of Charles Farwell. The contention, as made, ignores the facts. The evidence indicates the conference was had between the several parties in interest to determine what was due to the estate under the contract. The last written extension of the contract was made November 9, 1935, when $100 was paid and the time extended to December 30,1935. One of the purposes of the testimony was to show that the parties in interest were treating the so-called option contract as a contract of purchase and sale and were dealing with each other on that basis.
It'is also contended that where the'contract is clear and unambiguous the construction is for the court without the aid of evidence. The rule is correct, but its application here is not so clear. The option contract of February 8, 1934, was one of three contracts, each of which was executed on the same day. One was a quitclaim deed, in which use, rents and profits for a period of eighteen months was reserved; another was a lease of the same property for a period of eighteen months for an expressed consideration of one dollar and other valuable consideration; and the third was the so-called option whereby Stephens had the right for eighteen months to purchase the property for $1,085 and interest and any taxes which Farwell might pay. The option was extended four times by written endorsements made thereon. The first extension was in consideration of the sum of one dollar and stated it was made to afford opportunity for the parties to work out a new contract. Shortly thereafter Stephens paid $1,000. Three subsequent extensions were made, $100 being paid on each extension. Farwell died shortly after the last payment was made. The evidence showed and the trial court found the assessed value of the real estate in 1934 was $3,685. In effect appellants complain because the trial court, instead of permitting them to keep the real estate, whatever its worth,-as well also the $1,300 which had been paid, and to receive the impounded oil runs of $269.56, held that by the transactions of February 8, 1934, the parties intended a sale and purchase, as was evidenced among other things by the endorsements and payments, the possession of Stephens, the leasing by one of the Stephenses, the collection of royalties, the making of repairs, the statement of account of September 3, 1936, and the continued possession thereafter by the Stephenses.
Even though it be conceded that the so-called option contract could be divorced from the deed and lease made the same day, and that it could be treated as a pure option contract, the course of dealings between Charles B. Farwell, and after his death his executors, on the one hand and the Stephenses on the other shows that the contract was treated as for purchase and sale. Without further discussion we are of opinion the trial court treated the whole problem judiciously, fairly and equitably, and its judgment should be, and it is, affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to construe a will and. to recover property plaintiff alleged he was entitled to under it. The court acceded to the request of the parties to pass upon the legal questions involved in the construction of the will in advance of the trial upon questions of fact. The trial court construed the will contrary to plaintiff's contention in at least one important particular, and he has appealed.
The pertinent facts are not controverted and may be stated as follows: The plaintiff, Albert T. Dyal, born October 10, 1903, is the son and only child of William A. Dyal and his wife, Salome Crowe Dyal. His mother died in 1905 and some two years later William A. Dyal married Lillian Hossfeld. There-were no children by the second marriage. William A. Dyal died January 9, 1918, leaving a will, executed December 11,1917. At the time of his death his only heirs at law were his wife, Lillian Dyal, and his son, Albert T. Dyal, plaintiff herein, and they were the only persons named as beneficiaries under his will. At the time of his death he was the owner of several parcels of real property and of considerable personal property, including a substantial going business. As written, the body of the will contained nine paragraphs, four of which were numbered; the others were not. For convenience of reference the trial court used the Roman numerals I to IX to designate the paragraphs. The first seven of these paragraphs read as follows:
I. “First, I direct that all indebtedness, including that of last illness, funeral expenses and the erection of a suitable monument, be first paid.
’. II. “Second, I give? grant, devise and bequeath to my wife, Lillian Dyal, our home, being lot two (2) on Greenwood avenue in Potwin Place together with the furniture, household goods and equipment contained therein; also the north twenty-three and two-thirds (23%) feet of lot twenty-seven (27) on Kansas avenue in the city of Topeka, all in Shawnee county, Kansas.
III. “Third, I give, grant, devise and bequeath to my son, Albert T. Dyal, lots thirty (30) and thirty-two (32) and an undivided one-half interest in lot fifty (50) all on Kansas Avenue North in the city of Topeka, Shawnee county, Kansas.
IV. “Said property to be held in trust by my wife, Lillian Dyal, and to be managed by her, for the use and benefit of said Albert T. Dyal, without bond, until the said Albert T. Dyal shall arrive at the age of twenty-one years.
V. “Fourth, all the residue and remainder of my estate both real and personal I give, grant, devise and bequeath to my wife, Lillian and to my son, Albert T., share and share alike, the share of my son Albert T. to be held in trust by my wife, Lillian, and to be by her managed and cared for, without bond, until said Albert T. shall arrive at the age of twenty-one years.
VI. “If my wife shall depart this life before this will takes effect I give, grant, devise and bequeath the part of my estate herein given to her, to my son, Albert T. Dyal, and if my son Albert T. Dyal, shall depart this life before this will takes effect I give, grant, devise and bequeath the part given to •him to my said wife, Lillian.
VII. “In case my wife and myself should die in or as the immediate result of a common casualty or in case she should die without having used or otherwise disposed of the property herein devised and bequeathed to her, I give, ■grant, devise and bequeath the same to my son Albert T. Dyal.”
By the VUIth paragraph Lillian Dyal was named executrix with -authority to sell and convey the real property, and the IXth -paragraph gave her similar authority as executrix and as trustee for the son respecting the personal property.
The will was duly admitted to probate on January 15, 1918. The widow, Lillian Dyal, filed a written election to take under the will. 'She was duly appointed and qualified as executrix and duly administered the estate and closed the administration. On March 22, 1918, she was appointed by the probate court to act as trustee of the property which passed by the will to the son, and continued to act as such trustee until he became twenty-one years of age, and made her report and was finally discharged as such trustee on November 12, 1934. She died intestate on June 5, 1941, leaving as her sole heirs at law two brothers and one sister. Coadministrators have been appointed for her estate, who have entered upon and taken possession of all of the property belonging to her at the time of her death. Plaintiff has' made demand upon them for the property which he claims passed to him under the will, which demand was refused.
After issues were joined and a hearing the court made findings of fact, substantially as above stated, and the following conclusions of law:
“1. Paragraph II is a devise and bequest in fee of the real and personal property therein described to Lillian Dyal and is not limited by the provisions of paragraph VII.
“2. Paragraph III is a devise in fee of the real property therein described ■to Albert T. Dyal and is not now limited nor restricted by any subsequent provision of the will.
“3. Paragraphs V, VI and VII, after applying the facts as they existed upon the death of Lillian Dyal and after eliminating from these paragraphs the provisions which, upon the death of Lillian Dyal, were inoperative, would read as follows:
“ ‘All the residue and remainder of my estate both real and personal I give, grant, devise and bequeath to my wife, Lillian, -and to my son, Albert T., share and share alike. In case my wife should die without having used or otherwise ■disposed of the property herein devised and bequeathed to her, I give, grant, ■devise and bequeath the same to my son, Albert T. Dyal.’ (Emphasis mine.)'
"4. I conclude that the phrase ‘herein devised and bequeathed to her’ which appears in paragraph VII refers only to the one-half of the residue and remainder of the estate given to the wife in paragraph V.
“5. I further conclude that if there remained any of the one-half of the residue of the estate given to Lillian Dyal by paragraph V and which she had not ‘used or otherwise disposed of,’ that such remainder passed to Albert T. Dyal upon the death of Lillian Dyal.”
Judgment was rendered in harmony with these conclusions of law.
Appellant complains of the trial court’s conclusions of law and especially of those numbered 1 and 4, and argues that the court, in ascertaining the intention of the testator, was not justified in excising paragraph VI and the first part of paragraph VII and in redrafting paragraphs V, VI and VII, as was done in the court’s conclusion of law No. 3. The point is well taken. It is true, when a will provides for several situations, any one of which might exist when distribution under the will is to be made, and the others not, distribution will be made in harmony with the conditions which then exist. But this does not mean that in ascertaining the intention of the testator provisions of the will relating to- situations which do not exist when the distribution is to be made are to be excised from the will if they do in fact throw light upon the purpose and intent of the testator.
The correct rule to be used by the court in construing a will is to put itself as nearly as possible in the situation of the testator at the time the will was made and with this situation in mind to give force and meaning to the language used in the will, and from all this to ascertain and determine the purpose and intent of the testator. Naturally, the testator in making his will takes into consideration the amount and character of his property and the names and relationships of those who are entitled to be beneficiaries, and in planning the will looks to the future. The court is not justified some twenty years later in taking a retrospective view and saying that because some of the situations provided for in the will do not exist, such provisions throw no light upon the intention of the testator, and hence must be disregarded and the will in effect rewritten.
In support of the conclusion of the trial court appellees cite McNutt v. McComb, 61 Kan. 25, 58 Pac. 965, where a will, in the first item, used language which, standing alone, made a complete bequest and devise of the testator’s property to his wife, and a second item provided that at her death what then remained should be divided among three named persons. In construing the will the court held the clauses to be repugnant and that the second must be ignored. This holding cannot be given force here for two reasons: First, it does not appear at all certain that the trial court attempted to apply that doctrine in reaching its conclusion in this case; but, second, which is much more important, the doctrine there announced has been disapproved repeatedly by subsequent decisions of this court. It was followed specifically in Holt v. Wilson, 82 Kan. 268, 271, 108 Pac. 87, and was referred to approvingly in Safe Deposit Co. v. Stich, 61 Kan. 474, 478, 59 Pac. 1082; Lohmuller v. Mosher, 74 Kan. 751, 754, 87 Pac. 1140; Hurst v. Weaver, 75 Kan. 758, 763, 90 Pac. 297; Overly v. Angel, 84 Kan. 259, 263, 113 Pac. 1041; Thornberry v. Fletcher, 91 Kan. 744, 747, 139 Pac. 391; Twist v. Twist, 91 Kan. 803, 805, 139 Pac. 377, and possibly in some other cases. At best the rule followed in the McNutt case was to some extent in conflict with the rule previously announced by the court in Donohue v. Donohue, 54 Kan. 136, 139, 37 Pac. 998, where it was said:
“Every will should be construed in accordance with the intention of the testator, as expressed in or implied from the language.”
And in Ernst v. Foster, 58 Kan. 438, 49 Pac. 527, where it was held:
“A will is to be construed, not alone by its language, but by the condition of the testator’s family and estate; and the judicial expositor should put himself as far as possible in the position of the testator, and take into consideration the circumstances surrounding him when the will was executed.
“It is a general rule' that a will should be construed so as to give effect to every part thereof, providing an effect can be given to it which appears to be consistent with the general purpose of the testator as gathered from the entire instrument.” (Syl. ¶¶11, 3.)
The same rule had been applied to the construction of a contract. (Palmer v. Blodgett, 60 Kan. 712, 57 Pac. 947.)
The McNutt case was distinguished in several cases (Chase v. Howie, 64 Kan. 320, 67 Pac. 822; Coleman v. Coleman, 69 Kan. 39, 76 Pac. 439; Hawkins v. Hansen, 92 Kan. 73, 139 Pac. 1022, where the court recognized “each will must be construed by its own terms”; Koenig v. Koenig, 92 Kan. 761, 142 Pac. 261; Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950; Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802; Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280, and perhaps in some other cases). In Morse v. Henlon, 97 Kan. 399, 155 Pac. 800, it was held:
“The intention of the testator ... is not controlled nor defeated by the fact that the scrivener divided the words used to express the malting of a :gift by the testator to a beneficiary into three paragraphs instead of including .all in a single paragraph.” (Syl. If 2.)
And in Brown v. Brown, 101 Kan. 335, 166 Pac. 499, it was said:
“A- rule for the interpretation of wills, to which all other rules are subordínate, is that the intention of the testator, as gathered from all parts of the will, is to be given effect. . . .” (Syl. If 1.)
And in Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132, the court specifically held:
“The old rule, that the devise of a fee may not be impaired by a subsequent ■contradictory provision, is qualified by the modern rule, that the intention, as gathered from all parts of the will, must control.” (Syl. If 3.)
This was specifically followed in Otis v. Otis, 104 Kan. 88, 177 Pac. 520; and in Markham v. Waterman, 105 Kan. 93, 181 Pac. 621, it was held:
“Rule followed that in the' construction of a will the testator’s intention is to be gleaned from the entire text of the testament, and not by giving such ■controlling significance to any one paragraph as to render abortive other and •subsequent provisions of the will which likewise indicate part of the testator’s purposes.” (Syl. f[ 1.)
And in the opinion it was said:
“The old rule that a seemingly unqualified devise in an independent and prior clause of a will cannot be diminished by separate, subsequent clauses of the will (McNutt v. McComb, 61 Kan. 25, 58 Pac. 965; 4 Kent Comm. 270), has been largely superseded by the modem Kansas rule, that the testator’s intention is to be gleaned ‘from the four corners of the instrument’—from the entire text of the document. Some of our earlier cases foreshadow the coming of this doctrine. (Williams v. McKinney, 34 Kan. 514, 519, 9 Pac. 265; Ernst v. Foster, 58 Kan. 438, 47 Pac. 527), and this court was fully committed to it ini Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950, and haso followed it ■consistently in all the later cases. (Morse v. Herilon, 97 Kan. 399, 155 Pac. 800; Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802; Id., 102 Kan. 104, 619, 171 Pac. 769; Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280; Brown v. Brown, 101 Kan. 335, 166 Pac. 499; Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132; Otis v. Otis, 104 Kan. 88, 177 Pac. 520.)” (p. 95.)
Subsequent decisions ignore or disapprove the rule of law applied in the McNutt case and follow the general rule that in construing a ' will the surroundings of the testator may be taken into consideration, .and that in view of those surroundings the will must be interpreted in harmony with the language used therein, all parts of the will being ■considered, and that the intention of the testator, shown by the con ■sideration of these matters, governs in the construction of the will. See Pearson v. Orcutt, 106 Kan. 610, 189 Pac. 160, and 107 Kan. 305, 191 Pac. 286; Utilities Co. v. Bowersock, 109 Kan. 718, 729, 202 Pac. 92; Mansfield v. Crane, 116 Kan. 2, 4, 225 Pac. 1087; Hinshaw v. Wright, 124 Kan. 792, 262 Pac. 601; Stanolind Pipe Line Co. v. Ellis, 142 Kan. 102, 104-5, 45 P. 2d 846; Pedroja v. Pedroja, 152 Kan. 82, 87, 102 P. 2d 1012; Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177; Whitsitt v. Mulkey, 154 Kan. 138, 114 P. 2d 836. These cases demonstrate that since 1914 the rule applied in McNutt v. McComb, supra, has been disapproved repeatedly and that it has no more weight now than if at that time it had been specifically ■overruled. It is futile to rely upon it now. We feel confident the trial court did not attempt to do so.
Considering the situation of the testator with respect to his property and his family, and considering the language of his will, we think it not difficult to determine his intentions. He owned several parcels of real property—nine are described in the petition-—-the value of which is not shown, and personal property, including a going business, valued at more than $28,000 in the inventory and appraisement filed by his executrix. His heirs at law were his wife and his son, then fourteen years of age, related to each other by affinity only. Obviously, he meant to provide well for each of them. There is nothing in his will tending to show that he wanted any of his property to go to anyone else. He gave his wife (paragraph II) the home with its furnishings and another parcel of real property. He gave his son (paragraph III) two parcels of real property and provided (paragraph IV) that his wife, as trustee for the son, should manage the property during the son’s minority. The remainder of his property—a substantial part if not the bulk of his ■estate—he gave (paragraph V) to his wife and son in equal shares, •she to manage his share as trustee during his minority. While making these gifts in language which, if standing alone, would make the respective gifts to his wife and son complete, he had in mind .and incorporated in his will alternative dispositions of his property ■dependent upon situations which might arise.
By paragraph VI the testator made an alternative devise and bequest of all his property to his son in the event of his wife’s death before the will became effective. There is no reason to say he did not intend this provision to apply to the devise and bequest made to the wife in paragraph II as well as those made to her in paragraph V.
By paragraph VII the testator made an alternative devise and bequest of all his property to his son in the event he and his wife should die as the immediate result of a common casualty. There is no reason to say he did not intend this provision to apply to the devise and bequest made to the wife in paragraph II as well as those made to her in paragraph V.
And in the same paragraph, and as a part of the same sentence, he made an alternative devise and bequest to' his son in case the wife should die without having used or disposed of the property previously devised and bequeathed to her. We see no reason to say that this provision should be segregated from the' other alternative devises and bequests and given an entirely different meaning.
In its conclusions of law the trial court emphasized the word “herein” as used in paragraph VII. But it is only by excising from the will the last part of paragraph V, all of paragraph VI, and the first part of paragraph VII, and redrafting those three paragraphs in one that the word “herein” is so closely related to the devise and bequest in paragraph V that it can be said to apply to that alone.
In construing wills courts have no authority to reform the will or to excise from it important provisions which have a bearing upon the testator’s intention. (Hoover v. Roberts, 144 Kan. 58, 58 P. 2d 83; Alexander v. Goellert, 153 Kan. 202, 205, 109 P. 2d 146.)
It should be noted that the words “give, grant, devise and bequeath” are used in each of the paragraphs II, III, V and VII to express the gifts made in those paragraphs. We see no reason to say that they are used with less force in one paragraph than in the others.
In the alternative provision evidenced by paragraphs VI and VII only one situation is stated in which the son does not receive property, and that is if he should die before the will becomes effective, while there are two circumstances named under which the wife receives no property; if she should die before the will becomes effective, or if she and the testator should die as the result of a common casualty, and one in which the property given to her is not used or disposed of by her at the time of her death. There is no reason all these provisions should not be given effect in determining the testator’s intention.
In view of the fact that the hearing in the trial court was upon questions of law in advance of the trial of the issues of fact there has been no determination as to what property given to the wife by paragraphs II and V had not been used or disposed of at the time of her death.
From what has been said it necessarily follows that the judgment of the court below must be reversed with directions to proceed further with the case in harmony with the views herein expressed. It is so ordered.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Dawson, C. J.:
Plaintiff Clyde Baker recovered judgment against the defendant insurance company for loss and damage sustained in the alleged theft of his automobile.
Plaintiff owned a two-door Ford sedan which was covered by a policy of insurance issued by defendant and which insured plaintiff against loss or damage to his automobile through “theft, robbery or pilferage.”
The pertinent facts were developed without material dispute. Plaintiff and his family resided a short distance north of Arkansas City, which is situated near the Kansas-Oklahoma state line. On Sunday morning, June 4, 1939, his wife and two small daughters set out for church and Sunday school in the Baker automobile. One Claude Moore, a boy of juvenile-court age, rode along with them. When they reached the church Mrs. Baker left the ignition key in the car. Young Moore went into the church at one door and out at another and got into the Baker car and drove it away. He picked up two other boys and they rode down into Oklahoma a few miles, thence north through Arkansas City for some distance, and stopped for a time. Then one of Moore’s companions took the wheel and on their way back to town the car left the highway and was wrecked.
Plaintiff’s demand on defendant to be reimbursed for the loss and damage was rejected. Hence this action. The jury’s verdict in favor of plaintiff was for $430 and interest. Answers to two special questions were also returned by the jury:
“1. Q. For what purpose do you find that the boy, Claude Moore, took the Baker ear from at or near the Methodist church on or about June 4, 1939? A. For his own personal use for as long as he saw fit.
“2. Q. Did the boy, Claude Moore, at any time while the Baker car was in his possession on June 4, 1939, intend to permanently appropriate the car to his own use? A. No.”
Judgment was entered on the general verdict and defendant appeals, urging several errors which its counsel summarize into a single question of law, viz.: Did the taking and use of appellee’s automobile under the admitted facts in the case constitute a theft of the car within the meaning of the insurance policy, in view of the specific finding of the jury that Claude Moore did not intend to permanently appropriate the car to his own use?
Defendant’s counsel take the negative side of this question and direct our attention to a provision of the crimes act, G. S. 1935, 21-544, which declares it to be a misdemeanor to take away or use any automobile, “with intent to deprive the owner of the temporary use thereof, against the owner’s will, but not with the intent of stealing or converting the same permanently to his own use.” By another provision of the same statute the felonious stealing of an automobile is declared to be grand larceny and punishable by imprisonment in the penitentiary.
It is argued that since the legislature itself has drawn this distinction between the larceny of an automobile and the mere trespass of temporarily depriving the owner of its use, the obligation of the insurance policy should be interpreted according to these provisions of the crimes act. This court has not hitherto interpreted the terms of a civil contract so strictly unless the text compelled such construction. In Motor Co. v. Insurance Co., 111 Kan. 225, 207 Pac. 205, 24 A. L. R. 736, we held that where the owner of an automobile was swindled out of its possession, the lures and wiles of the swindler by which he accomplished that object constituted a species of theft for which the car owner could recover on a policy insuring him against theft, robbery and pilferage. In the opinion it was said:
“It may well be that in a prosecution for'the crime narrated the strict rules of our criminal law would require that the swindler be charged with the latter offense [obtaining property by false pretenses] rather than the former [grand larceny]. But it cannot be said that the contract of insurance was drawn to fit the narrow limitations of the Kansas crimes act,” (citing and quoting from the Grain & Supply Co. v. Casualty Co., 108 Kan. 379, 382, 195 Pac. 978).
The authorities in other jurisdictions are divided on the question at bar. Speaking generally, the earlier decisions held that the term “theft” in an insurance policy was synonymous with larceny, and recovery was usually denied to the holder of a policy of insurance for the theft of his automobile unless the technical elements of the crime of larceny were established. (Annotations in 14 A. L. R. 215, 19 id. 171.)
This court is committed to the doctrine that contracts of insurance should be liberally construed in favor of the insured and strictly as against the insurer who had the privilege of formulating the terms of the contract and had its own experts for their draftsmanship. (Grain & Supply Co. v. Casualty Co., 108 Kan. 379, 195 Pac. 978, 16 A. L. R. 1488.) See, also, Bankers Mortgage Co. v. Dole, 130 Kan. 367, 372, 286 Pac. 258; Tripp v. United States Fire Ins. Co., 141 Kan. 897, 900, 44 P. 2d 236.
There is a growing-trend in the more recent decisions to rule more strictly against insurance companies on the “theft” provisions of their policies. Thus in Pennsylvania Indem. Fire Corp. v. Aldridge, 73 App. D. C. 161, 117 F. 2d 774, 133 A. L. R. 914, it was held that a policy insuring an automobile against “theft” was broad enough to cover the act of a boy, employed to clean and simonize a car; who, with other boys, took it for a ride, and accidently wrecked it on the way back, although the boy had no intent' to permanently deprive the owner of the car, and although in a criminal prosecution against him the boy was convicted under a statute which made the temporary appropriation of a car without the consent of the owner a distinct offense from that of larceny. In the opinion the court took full cognizance of the strict rule of some courts which holds that there can be no recovery where the person taking the car had no intention to permanently deprive the owner of it, but said:
“To permit such a result would be to permit insurance companies, by using the word theft, to evade liability in many cases in which, under prevailing laws, they would be liable if they had used the word larceny. This is certainly not the result intended by the applicable rule. . . . It is apparent that the word theft is reasonably susceptible of the construction contended for by appellee and given by the lower court.” (p. 778.)
In Fire Ins. Co. v. House, 163 Tenn. 585, 45 S. W. 2d 55, it was held that a recovery could be had on a policy insuring an automobile against theft where the owner parked it near his residence, and a drunken man got into the car and drove it away and wrecked it. The trespasser had no intention of permanently depriving the owner of his property. The pertinent syllabus reads:
“A policy insuring the owner against ‘theft, robbery or pilferage’ of his automobile is applicable where one drove the car away and damaged it by running into a tree, notwithstanding that the circumstances indicated that the person took the car for temporary use and with the intention of returning it.” (Syl. 115.)
See, also, Nugent v. Union Auto Ins. Co., 140 Ore. 61, 13 P. 2d 343.
In Employers’ Fire Ins. Co. v. Consolidated Garage, 85 Ind. App. 674, 155 N. E. 533, the Indiana Appellate Court held that the owner of an automobile was protected by his insurance policy against theft of the car where an employee of a garage in which it was stored took it out without the owner’s consent and wrecked it on a pleasure trip. This ruling, however, is at variance with later decisions of the Indiana supreme court as shown in a brief annotated article in Vol. 16 of the Indiana Law Journal at pages 593, 594. It reads:
“In two recent cases an automobile was taken without the consent of the owner by a person in temporary possession, but without the intent to keep it permanently. Each automobile was insured against theft. The Indiana supreme court denied recovery on the insurance policy for damages to the car, but a federal circuit court of appeals allowed recovery.
“The Indiana court followed the weight of authority and defined theft as synonymous with larceny, requiring the common law intent to appropriate another’s property wholly and permanently. The federal court allowed recovery, holding that an appropriation inconsistent with the property right of the person from whom it was taken was sufficient.
“The general rule in construing insurance contracts is that if the language is ambiguous or reasonably open to two constructions, the one most favorable to the insured will be adopted. The application of the rule would include ‘taking without consent’ cases within the coverage of theft policies.
“Where state statutes make vehicle taking a felony but do not require an intent to permanently deprive, courts generally consider such taking unprotected by theft policies. These cases follow the rule which defines theft under the insurance contract as ‘theft as common thought and common speech would now image and describe it.’ A contrary result is reached by some courts on the ground that statutes have broadened the crime of larceny by expressly making certain acts larceny which did not contain all of the common law elements.
“The Indiana court defines felonious intent as the common law understood it. Taking an automobile temporarily without the consent of the owner, therefore, is not theft even though a more severe punishment is meted out to the wrongdoer than in grand larceny. The federal court reconciles the statutes with the common law definition and holds, use inconsistent with the property interest of the owner is included within the theft clause.
“A strict application of the common law seems to justify the Indiana decision. However, in view of the rule of interpretation favoring the insured as well as the statutory changes of intent in larceny, the more modern view of the federal court is to be commended.”
When we reflect that nowadays the means of identifying and recovering stolen automobiles are so efficient, the likelihood of the owner of it being permanently deprived of it through trespass, theft, larceny or otherwise is so remote that it would scarcely be worth an owner’s while to insure his car against “theft” if the policy would only cover a case where he is permanently deprived of it. Indeed, in the common practice of automobile thieves there is no intention of depriving the owner of it permanently. The thief’s intention as indicated by his usual conduct is to use the car for a few hours or a few days and abandon it before the peril of his incriminating possession of it leads to his undoing. Should not the insurance company be liable on its “theft” policy in such a typical case? And is it not fairer to hold the insurer to a strict interpretation of his contract, rather than the insured, who if he is not protected by the policy he has paid for gets nothing for his money?
This court holds to the liberal view as laid down in the Aldridge case, supra, and other cited cases to the same effect.
The judgment of the district court is affirmed.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Hoch, J.:
Defendant appeals from a conviction of maintaining an intoxicating-liquor nuisance in violation of G. S. 1935, 21-2130. In the same information he was also charged on another count with unlawful possession of intoxicating liquor, and upon that count he was acquitted. His principal contentions here are that the verdict of guilty on the nuisance count should be set aside because (1) it is inconsistent with acquittal on the possession count, and (2) it is not supported by any substantial evidence.
The first contention has been squarely rejected in prior decisions of this court. Possession of intoxicating liquor is not essential to establishment of guilt under G. S. 1935, 21-2130. The statute includes, among other descriptions of a common nuisance, places “where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage.” (State v. Geselle, 131 Kan. 729, 293 Pac. 494, and cases therein cited.)
After a careful examination of the record we conclude that appellant’s second contention is equally untenable. It is not the function of appellate courts, which have not had the opportunity afforded in the trial court of noting the demeanor of witnesses and otherwise passing upon their credibility, to weigh conflicting evidence. Upon appeal from conviction in a criminal action the evidence must be viewed in the light most favorable to the state, and the verdict will not be disturbed if there was substantial evidence, even though entirely circumstantial, as a basis for a reasonable inference of guilt. (State v. Murphy, 145 Kan. 242, 65 P. 2d 342; State v. Harper, 137 Kan. 695, 22 P. 2d 454; State v. Wood, 145 Kan. 730, 67 P. 2d 544; State v. Davis, 106 Kan. 527, 532, 188 Pac. 231.)
For a number of years defendant has operated a business or club, upstairs at 114 East Fourth street in Topeka. The club, said to be chartered as a nonprofit club, is known as the Young Men’s Progressive Athletic Club. Appellant pays tribute to the character of the club’s membership and urges that the sole purpose of the club is to provide lawful entertainment and recreation for its members— a place where they may meet to play games and otherwise enjoy social fellowship. But the legitimacy of the organization and the standing of its members is not at issue here. We can look only at the record to see whether the state presented any substantial evi dence to support a reasonable conclusion that the defendant was guilty as charged.
There was evidence that when police officers went to the premises on August 9, 1941, they found their admission barred by a steel-covered door which was barred on the inside and had a small peephole in one of the panels; that the officers knocked but no one answered for a while; that after waiting for some minutes the officers began hitting the door with a sledge hammer and then someone said, “Don’t tear my door up, and I’ll open it.” The door was then opened. One officer testified that while they were waiting to be admitted he heard someone say “it is the police” and heard the sound of breaking glass inside. Other officers had gone to a back stairway where they also found the way barred by' a steel-covered door. The owner of the building testified that he did not install the steel-covered doors and didn’t know who did, but he didn’t think they were put there before the defendant rented the place. The upstairs quarters appeared to consist of several rooms on each side of a central hall. On one side of the hall one room had tables and chairs in it and another had what one officer said “I would call a bar.” This officer further testified: “It is a back bar, with glasses on it. It has a front bar, ice box, nickelodeon, and then the third room has another makeshift bar, there is a counter in it, with a lot of boxes and paper and stuff stacked behind it, and empty bottles, etc.” The rooms on the other side of the hall were apparently living quarters. The officer testified that at the door of one'of these rooms he detected a strong odor of liquor. On one side of this room was a window which opened to the wall of an adjacent building, there being a space of only six or eight inches between the two walls. Using a flashlight, the officers looked down between the buildings and saw a lot of broken bottles and several unbroken liquor bottles with liquid in them. The window sill was wet and there was some broken glass on it. One officer testified he noticed an odor which “smelled like whisky” near the window. Standing near by was a bamboo pole which had a wire coat hanger fastened to the end and shaped like a hook. The officer started to use this pole to fish the liquor out of the window, but the defendant who was standing near told him that the pole belonged to him and he couldn’t use it. Later the officer returned to the room in the absence of defendant and by attaching to the pole a string with a slipknot succeeded in drawing up one of the unbroken bottles. A chemist for the Lattimore laboratory testified that the contents of the bottle tested 50.2 percent alcohol by weight. When the officers entered the place there were a number of persons standing around “drinking one thing and another,” but there was no testimony that any of them was drinking intoxicating liquors. “One man threw what he was drinking on the floor. I don’t know what it was.” Several officers took part in the raid and their testimony was substantially as above stated. A number of whisky glasses were taken by the officers from the bar and introduced in evidence. There was testimony that when taken “there was the odor of liquor” on the glasses. Appellant admits, in his brief, that these glasses were found- but says, “they were for decoration only.”
The same club rooms, while operated by defendant, had been searched by police officers on previous occasions, and on at least one such occasion bottles of whisky had been found at the same place in the narrow space between the buildings and below the same open window. As before noted, it is not within our function to give consideration to the testimony of defendant and various club members tending to establish his innocence. That was for the jury.
On the evidence submitted by the state, we cannot say that the jury could not reasonably arrive at a verdict of guilty on the nuisance count.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to recover double indemnity on a life insurance policy which provided that upon receipt of proof that the insured had sustained bodily injuries, solely through external, violent and accidental means, resulting, directly and independently of all other causes, in the death of the insured, the defendant would pay an additional, amount equal to the face of the policy.
The late Mrs. Jessie Johnson, of Kansas City, Mo., held a policy of life insurance for $516 issued by defendant in 1931, and payable to plaintiff at her death. She died on October 27,1938, and her body was taken to an undertaker’s establishment in Kansas City, Kan. The attending physician declined to sign a death certificate without holding a post-mortem examination which plaintiff and his wife, daughter of deceased, were only persuaded to permit on the threat of the undertaker to take the body back to Missouri, where an autopsy might be held without their consent. An autopsy was held by Dr. Eugene P. Chatman, following which he made a certificate of death as required by the bureau of vital statistics of the Missouri state board of health.
Defendant paid the face value of the policy without cavil, but rejected plaintiff’s claim for the double indemnity on the ground that there was no proof that the death of the insured was caused by “external, violent and accidental means, resulting directly and independently of all other causes,” within the terms of the insurance contract.
Hence this lawsuit. Issues were joined, and a jury was called and sworn. Plaintiff adduced his evidence. Defendant’s demurrer to its sufficiency was overruled., Defendant then adduced its evidence, and the cause was submitted to the jury, which eventually reported they could not agree. The court declared a mistrial and discharged the jury.
Defendant appeals, assigning error on the trial court’s ruling on its demurrer to plaintiff’s evidence.
The evidence relied on to sustain plaintiff’s claim to the double indemnity was as follows:
The insured was about fifty-one years of age and somewhat overweight. On the afternoon of August 14, 1938, two women, a Mrs. Harness and Myrtle Simmons, were visiting in her home. She excused herself to them, saying she was going to take a bath. Sometime later, her two visitors heard a splash and a dull thud. They ran to the bathroom and found the floor covered with water, and Mrs. Johnson sitting in the tub. One of those visiting women, Myrtle Simmons, testified that Mrs. Johnson had fallen in the tub and could not get out of it, that she and Mrs. Harness tried to get her out, but Mrs. Johnson said, “Wait a minute, I am hurt.” When asked where, she answered, “In my right side; you all wait.” Eventually the two women got her out of the tub and helped her into bed. She complained of her side hurting while she was in the tub and after they put her to bed. The same witness testified that she called the same evening and found Mrs. Johnson still in bed and complaining of her side.
Eight days later, on August 22, Mrs. Johnson was taken to a hos pital where she stayed about a month and was discharged. Some days later, her daughter, Mrs. P. G. Porter, went to see her and found her in bed and sent her to another hospital where she became the patient of Dr. Eugene P. Chatman. The insured stayed in that second hospital until her death.
The death certificate, in part, reads:
“The principal cause of death and related causes of importance were as follows:
“Abscess of the liver.
“Other contributory causes of importance: Fall.
“What test confirmed diagnosis? Blood cultures.
“Was there an autopsy? Yes.
“If death was due to external causes (violence), fill in the following: Ac- . cident. Yes.
“Where did injury occur? At home, 1410 Troost.
“Manner of injury. Fall in the bathtub.
“Nature of injury. [No answer.]
“Was disease or injury in any way related to occupation of deceased? No.
“(Signed) Eugene P. Chatman.”
There was some evidence that a few days before the alleged accident the deceased had a touch of indigestion caused by eating cheese, but that she had completely recovered therefrom before August 14.
In this appeal counsel for defendant contend that the evidence as summarized above was insufficient to take the case to the jury. They even insist that there was no evidence that the insured fell in the bathtub. We, however, have no hesitancy in holding the fact of her fall and the time and place of it were about as well proved as can ordinarily be done in any case where eyewitnesses are wanting and where there are no objective symptoms of injury. In our recent accident insurance case of Broyles v. Order of United, Commercial Travelers, 155 Kan. 74, 122 P. 2d 763, the insured was discovered lying on the floor of his office with a fractured skull. His death followed in five days, and in an action to recover on the policy whose terms were similar to those of the one now before us we held that the circumstances warranted a presumption that the insured’s death was caused by an accidental fall rather than by suicide or murder.
Our difficulty is not) with any paucity of evidence that Mrs. Johnson suffered an accidental fall in her bathtub on August 14, 1938, but to discover any semblance of proof that her fall in the bathtub caused the abscess of the liver from which she died. The indulgence of our law makes the recitals of the death certificate competent evidence. (Jaques v. Commercial Travelers, 104 Kan. 612, 617, 180 Pac. 200.) But that certificate declares that the principal cause of death was abscess of the liver. The double liability on the policy sued on requires receipts of due proof that the insured sustained bodily injuries, solely through external, violent and accidental means, which resulted directly and independently of all other causes in her death. The death certificate does not supply those requisites. It says the fall in the bathtub was an important contributing cause, but defendant’s obligation to pay the double liability is not established by proof that the fall in the bathtub was an important contributing cause. Where the evidence in this case failed completely was the want of some competent testimony to show that the abscess of the liver which the death certificate declared to have been the principal cause of Mrs. Johnson’s death resulted from the fall in the bathtub. The death certificate in effect is to the contrary—that the fall in the bathtub was an important contributing cause but not the principal cause. How then can we say that the evidence concerning the fall in the bathtub and the recitals of the death certificate were sufficient.to overcome defendant’s demurrer, and shirk our judicial responsibility by letting the case go to the jury?
Counsel for appellee does not help us over this dilemma. He cites cases like Williams v. General A. F. & L. Assurance Corp., 144 Kan. 755, 62 P. 2d 856, where we said, “If the accident be shown to be the cause of the injury for which the action is brought plaintiff can recover.” Certainly he could recover in such a case. Further along in the same opinion, it is said:
“Most of the courts look to the evidence to see whether the accident caused the injury for which the action was brought. Many of the cases use the term ‘proximate cause,’ as do some of the leading authorities. (Citations.) . . . In some of the cases cited these terms are used: ‘efficient and predominating cause,’ ‘independent and sufficient cause,’ ‘sole moving and active cause.’ But, without regard to the characterizing words used, the proper inquiry, and the one usually made, is whether the injury for which suit was brought was caused by the accident. When that is controverted, generally it is held to be a question for the jury.” (p. 758.)
None of the other cases cited supports the position of the appellee. Thus in Corsones, Admr., v. Monarch Acc. Ins. Co., 103 Vt. 379, 154 Atl. 693, where the double indemnity was allowed to plaintiff, a waiter had sustained injuries by a fall while carrying dishes. The evidence tended to show that the fall caused a hernia, and consequently the case was rightly decided. But we have groped in vain for evidence in this case tending to show that the fall caused the abscess of the liver. The same distinction is obvious between the instant case and Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81, 171 N. E. 914, where the insured sustained a fall while carrying a milk can. There was evidence that in his fall he sustained an injury which culminated in an ulcer which eventually caused his death. So, too, in Casualty Co. v. Colvin, 77 Kan. 561, 95 Pac. 565, there was evidence to show that the disease which culminated in the death of the insured was caused by an accidental injury; and it was therefore quite proper to attribute the death to the injury rather than the resultant disease, insofar as concerned the obligation of the policy.
A painstaking consideration of the record and the briefs constrains a majority of this court to hold that defendant’s demurrer to plaintiff’s evidence should have been sustained. The judgment is therefore reversed with directions to enter judgment for defendant.
Harvey and Smith, JJ., dissent. | [
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The opinion of the court was delivered by
Smith, J.:
This was a petition to probate a will. The will was admitted to probate. Certain'parties that objected to the probate of the will have appealed.
The petition to probate the will filed in the probate court alleged the residence of the person who was offering it for probate; that the First National Bank of Goodland had been named in decedent’s' will as executor; that the will had been duly executed, was genuine, and at the time of the execution the testator 'was of full age, of sound mind and not under any restraint; that he died on the 6th day of October, 1940, a resident of Sherman county and a citizen of the United States. The petition then stated that his mother and a' brother and a sister survived him and that the American Legion, Department of Kansas, was his only legatee and devisee, and that the probable value of the estate was approximately $25,000 real estate and personal property; that the appointment of an executor was necessary and it was prayed that the First National Bank of Goodland, Kan., be named executor thereof.
The will provided that after all debts and funeral expenses should be paid the rest of testator’s property should go to the American Legion, Department of Kansas, which was to use the property for the use of disabled World War veterans with fifty percent or more disability, whether they were confined to private or government hospitals or resided in their own home or private homes. The will stated that it was the wish of the, testator that the executor not sell the property but that the sale be left to the American Legion and that the funds be disbursed within ten years from the date of the decease.
Johanna Schikowsky, the mother and sole heir of testator, alleged that the petition was defective because it did not set forth the interest of the petitioner; that the will was not executed according to law; that the instrument was never acknowledged by Schikowsky to be his last will; that the witnesses to it were interested and could not serve and that he did not know the contents when he signed it; that he lacked the mental capacity to make a will; that he did not know what property he hád or who were the natural objects of his bounty; that at the time he made the will he did not have the mental capacity to make it because he was suffering from insane delusions; that at the time he made the will he was under the influence of the scrivener of the will who was an officer of the American Legion, the chief beneficiary; that the testator was under the direction of the scrivener to such an extent as to destroy the freedom of the will of Schikowsky; that the will had been revoked; and—
“That the principal beneficiary named in said alleged will, to wit, The American Legion, Department of Kansas, does not have power and authority to accept a devise or bequest such as contained in the alleged will of said decedent, and the institution named as executor does not have the power to act as such and said alleged will is void and without effect.
“That said alleged will is too indefinite, uncertain and ambiguous as to constitute a will and is therefore void.”
The probate court heard evidence and found that the allegations of the petition had been proved; that the decedent died testate, a resident of Sherman county, Kansas; that the instrument offered for probate was duly executed according to law; that the decedent at the time of the execution was of sound mind and under no restraint and that the will was genuine.
The court found that the First National Bank was not permitted under the law to serve as executor and that a special administrator should be named, and ordered the will admitted to probate. The objectors appealed to the district court. In the district court evidence was heard on the issues as they had been made in probate court.
The trial court made extensive findings of fact. It is not necessary to detail them here, but it is sufficient to state that the court found that testator died in Sherman county, October 6, 1940; that the will was duly prepared and signed and witnessed according to law; that at the time he signed the will testator was of sound mind and capable of transacting his business; that he was never under any undue influence; that at the time of the execution of the will the scrivener was not an officer of the American Legion; that at the time of its execution testator understood the contents of the will; that the American Legion, Department of Kansas, was a Kansas corporation; that the instrument introduced was the last will and testament of Schikowsky; that at the time of the making of the will he did not lack testamentary capacity.
The court concluded as a matter of law that the will was in proper testamentary form, had been properly executed; that at the time of its execution testator was of sound and disposing mind, acted without restraint, and that the will should be admitted to probate; that the American Legion was sufficiently described and was legally capable of acting as trustee; that the trust created by the will was not void for indefiniteness; was a valid charitable trust; that the American Legion was capable legally of becoming the beneficiary under the will and administering the trust therein imposed.
The motion of the objectors for a new trial was overruled and judgment was given pursuant to the above findings and conclusions.
Hence this appeal.
.The appellant contends that the will did not create a valid charitable trust; that the instrument was not the will of the deceased; that the instrument was not a valid will and that the lower court erred in not allowing the attorneys for appellant an attorney’s fee.
In the argument of the appellant that the will was not the will of deceased and not a valid will and that he lacked testamentary capacity, she contends that we should examine the record and reach a different conclusion as to the facts than was reached by the probate court and the trial court. It would add but little to this opinion to set out the details of the evidence here. The testator was a bachelor; he had served in the World War and belonged to the American Legion. There was some testimony about his having had differences of opinion wi.th his mother over business matters. There was also evidence that sometime before he made the will he suffered epileptic seizures and that he had had a sunstroke. There was evidence on the other hand to the effect that he knew how much property he had; had managed his property and had a definite idea of what he wanted to do with it. Under such circumstances it is plain that the rule announced so many times to the effect that this court will not weigh conflicting evidence on appeal and that where there was substantial evidence to sustain the findings of fact the findings will not be disturbed, is in point. (See Randall v. Bird, 118 Kan. 341, 235 Pac. 103; also, Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580.)
The principal point urged by the appellant is that this will was void because it attempted to create an invalid trust. This depends on the argument that the American Legion did not have the capacity to act as a trustee and the trust itself was so indefinite as to be unenforceable. The clause of the will under consideration is as follows:
“I hereby give, devise and bequeath unto The American Legion, Department of Kansas, all of the residue of my property, both real, personal and mixed, oí which I shall die, seized and possessed, or to which I shall be entitled to receive at the time of my decease, wherever situate, and The American Legion, Department of Kansas, is to use the property herein willed for the use of Kansas disabled World War veterans with 50 percent or more disability, whether said World War veterans are confined to private or government hospitals or who reside in their own homes or private homes, and it is my wish that the real property be not sold by my executor, but the sale be left to The American Legion and said estate funds be disbursed as herein directed on or before ten years from the date of my decease.”
We shall first, deal with the question of whether or not the American Legion, Department of Kansas, is capable of administering this charitable trust. This question received the attention of this court in Barnhart v. Bowers, 143 Kan. 866, 57 P. 2d 60. In that case an unincorporated church society had been named as trustee of a charitable trust for the benefit of the church. This court held that a charitable trust was created, and while the unincorporated society could not act as trustee, it was proper for the court to name the same church when it subsequently became incorporated.
By analogy the American Legion, Department of Kansas, would have all the qualifications fitting it to act as trustee that this church society would have.
In Treadwell v. Beebe, 107 Kan. 31, 190 Pac. 768, this court held that a municipal corporation had the capacity to administer a charitable trust.
See, also, 10 A. L. R. 1359, and annotations following.
We have examined the charter of the American Legion and are familiar with the general program of the society. No doubt the testator had the advantage of this same information, since he was a member of the society. It is doubtful if there is an organization anywhere better fitted to administer a trust of this sort than is the American Legion.
Appellant next argues that this will did not create a trust for charitable use.
In Hollenbeck v. Lyon, 142 Kan. 352, 47 P. 2d 63, the use was for the benefit of needy poor in and around Abilene. The court upheld that as a charitable trust.
In Barnhart v. Bowers, supra, the will provided that the income derived therefrom be used for the benefit of the church. This court upheld that as a charitable trust.
In Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580, the will provided that the Bethany Methodist Hospital was to receive certain real estate, use it or dispose of it as should be for the best interests of the hospital in the care and treatment of crippled children. This court upheld that gift.
See, also, Clark v. Watkins, 130 Kan. 549, 287 Pac. 244.
Appellant next argues that the will is invalid because the trust it creates is so indefinite that the court could not enforce it, and she points out how indefinite is the phrase “Kansas disabled war veterans with 50 percent or more disability.” She questions whether the phrase means men who have always lived in Kansas or who lived in Kansas when the will was written. The cases that have been stated heretofore are in point on this question. Wills with similar clauses have been construed so as to confer on the named trustee the right and duty to exercise discretion as to what use shall be made of the proceeds of the trust compatible with the wishes of the testator.
Appellant next argues that the court erred in not allowing counsel for the appellant in the district court and this court an attorney’s fee. A large discretion rests upon courts as to circumstances under which an attorney’s fee may be allowed. It appears that for the successful carrying out of this trust it may have been for the benefit of all concerned that the question of the validity of the trust be settled. That was a result of this litigation.
We have concluded, therefore, that counsel for the appellant here should be allowed the sum of $600 for attorney’s fees and expenses both in the district court and this court.
The judgment of the trial court with reference to the allowance of an attorney fee is reversed, and on all other questions is affirmed. | [
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