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harvard-lil

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cold-cases

like 11

"1932-05-07"

[ "135 Kan. 388", "10 P.2d 1079" ]

[ { "author_str": "Burch", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe opinion of the court was delivered by\nBurch, J.:\nThe appellant was convicted of violating the liquor law, and appeals.\nDefendant says his contention generally is that the evidence of the state as a whole was not sufficient to warrant conviction of anything charged in the informatiosi. The information contained five counts. Defendant was convicted on two counts only, the first charging possession of intoxicating liquor, and the second charging a sale. Speaking generally and specifically, there was abundant evidence to sustain conviction on those counts, which are all that are involved here.\nWitnesses for the state undertook to minimize or nullify the effect of testimony they had given at an inquisition held by the county attorney, showing defendant was guilty. The court permitted the *389county attorney to do what is necessary to be done in such cases, and defendant makes several complaints about that. This feature of the case is governed by the decision in the case of State v. Smarsh, 117 Kan. 238, 231 Pac. 52.\nComplaints about instructions are without merit, and other complaints of the proceedings are so lacking in merit they need not be mentioned.\nThe judgment of the district court is affirmed.\n", "ocr": true, "opinion_id": 7911378 } ]

"1932-11-05"

[ "136 Kan. 400", "15 P.2d 723" ]

[ { "author_str": "Hutchison", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe opinion of the court was delivered by\nHutchison, J.:\nThe appeal in this case is from a conviction of murder in the second degree and sentence pronounced thereon. The *401information charged murder in the first degree, and the court instructed upon both degrees and upon all the degrees of manslaughter.\nMany errors are assigned; some of them are concerning the instructions given, one concerns the refusal of the court to sustain the motion to discharge the defendant for want of evidence, direct or circumstantial, or some of the essential elements of the crime, but most of them are because of the fact that there was no eye-witness to the shooting. A very serious question is involved as to an instruction concerning admissions said to have been made by counsel for defendant in his opening statement to the jury, which was made before any evidence had been introduced by the state, contrary to the order of trial prescribed by R. S. 62-1438. The record shows that the defendant’s counsel elected to make the opening statement before the introduction of the state’s testimony. At the close of the state’s testimony the defendant moved to discharge the defendant because the state had failed to prove facts sufficient to constitute an offense under the information. The court overruled this motion, and in doing so took into consideration some of the statements made by defendant’s counsel in his opening statement to the jury as admissions of fact. After this ruling on the motion the defendant rested without introducing any evidence whatever, the jury was then instructed, arguments were made, and a verdict was rendered of murder in the second degree.\nAppellant objects to the taking of any of his counsel’s opening statement to the jury as testimony in the case, and insists if any part of the statement is taken the whole of the sentence or statement on that subject should have been taken together. There were two persons killed in this connection, but the information in this case only charges defendant Thomas with the killing of McNally. The opening statement as to the shooting of the other man is necessary to get the connection with what is said to have followed, and is as follows:\n“The evidence will show that as Thomas started to step out of the car, I don’t know whether he stepped on the running board or not, a man, he didn’t know then who it was, got out of this car and started across the street toward the car that Dayton Thomas was in, and as he got to Dayton Thomas he threw a gun down on him, and said, ‘Stick them up.’ The evidence will show that Thomas reached in and grabbed his gun and fired twice. As he fired, this man throwed his hands up this way (indicating) and as he did, the gun went back of him and dropped on the pavement.”\n*402The part of the statement concerning the shooting of McNally was as follows:\n“The evidence will show that when Mr. Thomas got in the car, and sat down on the seat, McNally suddenly struck him in the face and that Thomas, the evidence will show, had had no controversy with Mr. McNally and he said to McNally, 'What in the hell do you mean?’ McNally then caught him and beat him in the face — the door still loose and swinging, and at that time, Dayton Thomas, who as he ran after the car dropped his gun in his pocket— Thomas grabbed his gun, and believing that he was going to be thrown from the car and going to be hurt, shot, and he shot McNally.”\nA later part of the statement is as follows:\n“The evidence will show he went on up to the house where he boarded with Mrs. Thomas, opened the door, went in, and she noticed his condition, noticed the blood on him, the abrasion and cuts on his chin and that she asked him what was the matter, and he said, ‘Two men tried to hold me up and I shot them.’ ”\nAppellant calls our attention to the opening and closing paragraphs of his opening statement to show that he was not referring to the evidence of the defendant in the case alone and what it would prove, but to all the evidence on both .sides — these paragraphs, the first and last, are as follows:\n“The evidence in this case — and I don’t say evidence on behalf of the defendant alone, but I say the evidence in this case, both on the part of the state and on the part of the defendant, will show several things that I want to call your attention to.”\n“Now, then, under the evidence and under the instructions of the court as to a. man’s right of self-defense, and under the instructions of the court as to a reasonable doubt and to resolve that doubt in favor of the defendant, if the evidence in this case both on behalf of the state and on behalf of the defendant should show facts as I have detailed them to you, we will expect at your hands a verdict of not guilty on behalf of this man, Dayton Thomas.”\nThe trial court instructed the jury that the opening statement of counsel for defendant relieved the state from proving the presence of the defendant at the time and place of the alleged shooting and also proof of firing of the revolver at the deceased. This is particularly assigned as error. The argument made against it is that this was not evidence and was only a part of the statement, and if any of it is to be taken and used as evidence, the entire statement should be so considered. On the other hand, the state maintains that the part taken is made admissible by being against interest while the other part was self-serving. The two instructions given in relation thereto are as follows:\n*403“In a previous instruction, I have told you, that under certain circumstances homicide is justifiable.\n“If, from all of the evidence in this case, and the reasonable inferences which you draw therefrom, you cannot determine beyond a reasonable doubt, that the defendant did not fire the shot at the deceased while he, the defendant, was being assaulted by the deceased under such circumstances as caused the defendant to believe that he was in danger of death or great bodily harm immediately, and that he shot in good faith to protect himself therefrom, you cannot find the defendant guilty.\n“The state has not offered any evidence to show that the defendant shot and killed the said John McNally. Counsel for the defendant has, however, in open court stated that the defendant shot at the said McNally and that such shooting was done in self-defense. This statement by counsel of defendant relieves the state from proving the presence of the defendant at the time and place of the alleged shooting, and, also, proof of firing of the revolver at the deceased. This statement, however, does not admit that the shot fired by the defendant was fatal and caused the death of John McNally, nor that the defendant willfully, maliciously, deliberately and intentionally shot and killed the said John McNally, nor does it admit that the shooting was unlawful; neither does it admit that the defendant was not justified in firing at the deceased.\n“Counsel for the defendant admits that the defendant was present at the place in question and that he fired the shot, but does not admit that if death resulted from the shot, that the killing was unlawful; the burden of proof rests upon the state, as hereinbefore instructed, to establish to your satisfaction beyond a reasonable doubt, that the killing was unlawful and that the defendant is guilty of some one of the offenses included in the charge made in the information, as hereinbefore explained to you.\n“Therefore, unless you find that the state has so proven the charge included in the information you should find the defendant not guilty.”\nCounsel for the state cite State v. Truskett, 85 Kan. 804, 118 Pac. 1047, as decisive, but while it concerns the consideration of statements made by defendant’s counsel in his opening statement as evidence in the case, yet there was evidence covering the same points regularly admitted, and the trial court instructed the jury “to entirely disregard such unsupported statement of counsel.” It was a case where there were no eye-witnesses, and the defendant’s attorney in his opening statement told what was said and done in the closet leading up to the shooting. But this was corroborated by one witness at the store of the defendant’s nephew where the defendant went immediately after the shooting and there said, “I have shot Neely. I had to do it.” He told the sheriff exactly the same thing a few hours later, and both these statements were regularly introduced in evidence. The trial court ruled the first statement at the *404store could only be considered as it might have a bearing upon the mental condition of the defendant, but put no such limitation upon the statement to the sheriff. It was said in the opinion:\n“It is true that part of the remark was self-serving, but it was a part of one statement, offered we must presume, as an admission tending to prove guilt, and must be considered as a whole and its effect left to the jury. . . . It is true the jury might have believed the first part and rejected the last part of the statement, but it was their province to do so and not that of the court.” (p. 816.)\nThe error in that case was in failing to give to the jury the consideration of the self-serving part of the statement as well as that against interest and let the jury decide whether the killing was done in self-defense. The trial court in the case at bar avoided that error by instructing the jury as to self-defense. The reference to the opening statement in the Truskett case, supra, is of no particular consequence or help in this case because the trial court in that case told the jury to entirely disregard such unsupported statements of counsel, and without it the jury had the statement made by the defendant himself to the sheriff that “I have shot Neely. I had to do it.”\nThe state refers to a part of the opinion in the case of State v. Jackson, 42 Kan. 384, 22 Pac. 427, where the court speaks of a fact being admitted in a criminal case so that it is no longer a question of fact where “the entire uncontradicted evidence in the case might clearly, unquestionably, conclusively and directly prove the same.” But the admission there spoken of was the kind to be based upon the uncontradicted evidence. There was no actual admission in that case. The admission claimed was an essential element of the crime and was denied by the plea of not guilty.\nThe case of State v. Wilson, 166 Ia. 309, is cited by the state to show the defendant may be bound by the admissions of his attorney in his opening statement. The essential element of the crime under consideration there was that death resulted from the wounds inflicted by the shots. The attorney said:\n“They have doctors to prove to you that a woman was shot and killed. We know it. What do they need that evidence for? We admit that the woman is dead, and that those shots killed her. A fact is a hard thing to get away from.” (p. 325.)\nThe supreme court recognized the statement as an admission and the right to regard it'as such, but the closing sentence on this point in the opinion shows that there must have been some evidence on the *405subject in addition to the attorney’s statement, as it refers to “circumstances proven.” The concluding sentence is as follows:\n“In thus disposing of the point raised, it is not to be assumed that we entertain any doubt as to the sufficiency of the circumstance proven to warrant the inference that death resulted from the wounds inflicted by the shots from the revolver.” (p. 326.)\nOf course counsel for the defendant in a criminal case may, in the course of the proceedings, make an admission of fact voluntarily and purposely to avoid the necessity of proving it, and the court has a perfect right to accept such as an admitted fact for which no proof will be necessary. Such admission, however, is properly made to the court and a record is made of it as such. Then the court conveys to the jury such admission, through its instructions, and it becomes a judicial admission.\n“The admissions of attorneys of record bind their clients in all matters relating to the progress and trial of the cause; but, to this end, they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial . . (1 Green-leaf on Evidence, 16th ed., 311.)\nIn criminal cases, more particularly than in civil, the defendant is protected against any and every statement of his counsel which is not definitely and purposely intended as and for an admission.\n“A statement made by counsel in open court which is not in fact an admission cannot be treated as one. Admissions made by counsel in argument do not take the place of testimony, nor can a conviction be based thereon . . .” (16 C. J. 639.)\n“A conviction of accused cannot be had upon the admissions of criminality made by his counsel not constituting a plea of guilty.” (16 C. J. 760.)\nIn the case of State v. Wheeler, 93 Wash. 538, the defendant was being prosecuted for adultery, and the statement of defendant’s counsel as to a party being a justice of the peace in connection with a marriage ceremony was used where evidence was lacking, and the judgment was reversed on that account, the court saying:\n“The statement of counsel does not admit that Maaker was a justice of the peace at the time, and was not made as an admission. It was a mere voluntary statement, suggesting that, at one time, Maaker was a dentist and a justice of the peace. An admission by an attorney to be binding upon his client must be distinct and formal, and made for the express purpose of dispensing with the formal proof of some fact at the trial.” (p. 641.)\nIn the case of Sanderson v. State, 44 S. W. (Tex.) 1103, the court instructed the jury as follows:\n*406“ ‘The defendant’s counsel . ■ . in his plea and argument, admitted that defendant had the pistol, and defendant was present at the time.’ ” (p. 1103.)\nThe judgment was reversed with the following comment:\n“This charge assumes: First, that the defendant carried the pistol in violation of law; second, it places the burden upon the defendant to justify such unlawful carrying. It would be a very dangerous precedent to authorize a jury to convict a defendant for any admissions that might be made by his counsel in argument.” (p. 1103.)\nWe conclude in the same way, that it would be a very dangerous precedent to authorize a jury to convict one charged with a crime upon the admissions his counsel made in an opening statement which were unsupported by evidence regularly introduced. All the authorities found on the subject impress us that a solemn admission, intended to be binding upon one charged with a crime, should be made other than in an-argument or address to a jury, and because the court accepted such statements as admissions against interest and separated them from the self-serving statements with which they were connected, we think it was error. Other assignments of error need not be here considered. The one considered requires a reversal and the granting of a new trial. It is so ordered.\n", "ocr": true, "opinion_id": 7911593 } ]

"1932-12-10"

[ "136 Kan. 447", "16 P.2d 543" ]

[ { "author_str": "Dawson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe opinion of the court was delivered by\nDawson, J.:\nThis was an action for an accounting of the proceeds of chattel property covered by mortgages held by these *448litigants, and in which incidental fraud and conspiracy were charged against the defendant bank, its officers, and the mortgagor.\nIt appears that prior to October 28, 1927, one Lundstrom, a tenant farmer of McPherson county, was indebted to the plaintiff bank in the aggregate sum of $3,457.40 with interest as evidenced by three past-due promissory notes. Lundstrom had been a customer of plaintiff, but prior to the incidents giving rise to this lawsuit he had transferred his account to the defendant.\nOn October 28, 1927, plaintiff filed suit against Lundstrom on his past-due notes and caused an attachment to be issued on his chattel property consisting of 90 hogs, a corn crop, and 100 acres of fall wheat. The attachment process was served on Lundstrom on the following day, October 29, about the close of banking hours. At once Lundstrom hastened to the defendant bank, rapped on its back door and was admitted. Two days later, on October 31, two chattel mortgages covering the attached chattels and other personalty, executed by Lundstrom in favor of defendant, were filed for record. These mortgages purported to secure Lundstrom’s notes, one for $1,056.90 dated October 28, 1927, and the other for $1,600 dated October 29, 1927.\nOn December 6, 1927, about a week after the filing of the attachment suit and the subsequent filing of defendant’s chattel mortgages, Lundstrom and plaintiff effected a settlement whereby the attachment suit was dismissed and plaintiff accepted notes from Lundstrom, one for $500 with personal security and another for $2,500 secured by a junior mortgage on the chattels he had mortgaged to defendant.\nDuring the year 1928 part of the personalty covered by defendant’s first and plaintiff’s second mortgages was sold. On February 5, 1929, Lundstrom held a public auction and pretended to sell to the highest bidders all the remaining personalty covered by plaintiff’s mortgage; but within four days thereafter he remortgaged nearly all the same chattels to defendant. Afterwards some of this remortgaged personalty was sold, and part of it was again remortgaged to defendant in May, 1930.\nNo accounting of the proceeds of the mortgaged property was ever given to plaintiff by Lundstrom nor by the defendant bank, and eventually this action was begun.\nPlaintiff’s petition set out most of the facts narrated above, and alleged that the transactions between Lundstrom and defendant which had their inception in his execution of chattel notes and *449mortgages to defendant subsequent to the institution of plaintiff’s attachment suit were conducted by them purposely to defraud plaintiff; that plaintiff was thereby deceived into the belief that defendant’s chattel mortgages filed of record on October 31, 1927, were regular, valid and prior liens on the chattels and personalty which plaintiff had attached; and that in that belief plaintiff accepted a junior mortgage on those chattels and dismissed its attachment suit.\nPlaintiff alleged that defendant and its officers had notice and knowledge of plaintiff’s junior lien on Lundstrom’s chattel property; and that they had caused and permitted much of it to be sold between January 1, 1928, and December 1, 1928, for an amount sufficient to pay in full defendant’s senior mortgages and also that of plaintiff; but that defendant had refused to apply any part thereof to the satisfaction of its own liens or to reduce the claimed lien of plaintiff.\nPlaintiff also alleged that the public auction of February 4, 1929, was a fraudulent and fictitious pretense that Lundstrom’s personalty was sold to satisfy the pretended mortgages held by defendant, and that it was so conducted to defeat the claim and lien of the plaintiff.\nPlaintiff also alleged that it did not discover .the fraud practiced upon it pursuant to this conspiracy of Lundstrom and defendant until February, 1929. Plaintiff further alleged that all. it had received on account of Lundstrom’s indebtedness due to it was payment of the $500 note, and $362.50 as the proceeds of some wheat covered by its mortgage.\nPlaintiff prayed for judgment for the balance due on Lundstrom’s indebtedness to it, and for an accounting from all the defendants for the proceeds of all sums realized from the sale of the property covered by its mortgage, and for whatever further equitable relief should be found proper.\nDefendant filed a lengthy answer which contained a general denial and pertinent allegations touching Lundstrom’s indebtedness to it at the times the notes of October 28 and October 29, 1929, were executed to it, also the chattel mortgages given to secure these notes. One paragraph of defendant’s answer reads:\n“4. The defendants deny all knowledge or notice of the claimed attachment, and all knowledge or notice of the claimed mortgage of $2,500 alleged in the petition, but admit that the plaintiff bank took its second mortgage of *450$2,500 subject to the defendant bank’s said two mortgages of $1,056.90 and $1,600 above alleged.”\nDefendants also pleaded with extended detail subsequent loans made by the defendant bank to Lundstrom and set out certain matters of accounting between it and Lundstrom covering the years 1928 and 1929; and admitted their knowledge of and their consent to the auction held by Lundstrom on February 5, 1929; and denied all claim and right in plaintiff to any of the property after the sale thereof on that date.\nWhile this action was pending the defendant bank passed into the hands of a receiver and that officer was made a defendant.\nThe cause was tried by the court with the assistance of an advisory jury. Special interrogatories were answered by the jury, some of which read:\n“Q. 1. Was the sale of February 5, 1929, conducted in good faith by the defendant Lundstrom and the defendant the Commercial State Bank, as a foreclosure sale? A. No.\n“Q. 5. Did the defendant Lundstrom buy said property at the public sale? A. No.\n“Q. 6. When did the defendant bank, through its officers, have knowledge of the second mortgage of the plaintiff, covering the property on which the defendant had or claimed a first mortgage? A. On or before December 15, 1928.\n“Q. 7. Did the defendants or any of them enter into a conspiracy or understanding to impair or destroy the security of the second mortgage of the plaintiff, or the property of defendant Lundstrom? A. Yes.\n“Q. 8. If you answer the above question in the affirmative, state which of the defendants so conspired. A. Lundstrom and Commercial State Bank.\n“Q. 9. Was the public sale of the mortgaged property, which was held on February 5, 1929, made with the intent of converting the property into cash and applying the proceeds to the payment of any mortgage or mortgages covering the same? A. No.\n“Q. 10. Was said public sale held for the purpose and with the intent on the part of the defendants or any of them to deprive the plaintiff of its mortgage lien? A. Yes.\n“Q. 11. Was the plaintiff bank defrauded in any manner by the agreement between Lundstrom and his by-bidders that they should bid in the property at said sale and did so? A. Yes.\n“Q. 12. If you answer question No. 7 in the affirmative, state the time when said conspiracy was entered into and the acts or conduct which you find constituted it. A. December, 1928. Asking Farmers State Bank [plaintiff] to release mortgage bogus sale, and adding unsecured notes into mortgage, and refusing to give an accounting of the mortgaged property sold.\n*451“Q. 16. When did the defendant the Commercial State Bank, through its president or cashier, have actual notice of the mortgage of the plaintiff, the Farmers State Bank, as actual notice is defined in these instructions? A. On December 10, 1927.”\nThe trial court approved the jury’s special findings and also made findings of its own, one of which was that 17 items of hogs, cattle and wheat, amounting to $5,401.45, and covered by plaintiff’s and defendant’s mortgages, were sold between February 28, 1928, and November 5, 1930; also, that between February 13, 1929, and August 5, 1930, Lundstrom paid defendant items of cash amounting to $1,789.59. The trial court also found that defendant was the owner and holder of Lundstrom’s notes and mortgages of October 28 and October 29, 1927, aggregating $3,408.77; and that plaintiff was the owner and holder of a note and second mortgage executed by Lundstrom and that there was a balance of $2,858.15 due thereon. The trial court also found that certain cattle and hogs covered by the chattel mortgages of the litigants were still in the hands of Lundstrom. These were later sold and the proceeds (gross $640.25, net $635.36) accounted for, and a supplemental finding made pertaining thereto.\nJudgment was entered in plaintiff’s behalf against all the defendants for $2,932.36 as of October 30, 1931, and it was held that of that sum $640.75, less $4.89 for taxes paid, should be a preferred claim on the assets of the defendant bank.\nDefendants appeal, urging our attention to various errors, of which those most clearly specified will be noticed in the order of their presentation.\n1. Complaint is made as to the sufficiency and competency of the evidence adduced to prove that defendants had notice of the second mortgage given by Lundstrom as an inducement to plaintiff to dismiss its attachment suit. On that point the president of the defendant bank testified:\n“A. ... I didn’t know much about that attachment suit until later on. Mr. Lundstrom . . . explained why he had made a settlement at the Farmers State Bank on this attachment suit, and the way he had settled it.\n“Q. You knew it was settled by the giving of a mortgage and a release of the attachment? A. Yes, sir.”\nEberhardt, defendant’s cashier, testified:\n“Q. You made it a practice, I presume, to the best of your ability to keep track of the financial condition of the borrowers at your bank? A. Well, we tried to.\n*452“Q. And in the line of your duty you inquired about and kept track of C. L. Lundstrom’s financial condition, did you not? A. Yes, sir.”\n“The information came to me that the Farmers State Bank had attached the property upon which we had taken a mortgage, but I am not sure how soon. It may have been several weeks after we took the mortgage.”\nMoreover, the circumstances had considerable evidential potency —at least the triers' of fact might so conclude. Lundstrom had been a customer of plaintiff. He changed his account to defendant. It might fairly be inferred — even if defendant’s cashier had not virtually admitted it — that defendant made the ordinary inquiries touching his financial status when that change was made, or at least before loaning him, a tenant farmer, the considerable sums evidenced by his notes of October 28 and 29, 1927. It was a highly significant fact that as soon as Lundstrom was served with the attachment process he hastened to the defendant bank after banking hours and was admitted at the back door and that notes and chattel mortgages in favor of defendant of dates almost simultaneous with the attachment were soon forthcoming. The defendant bank’s records when produced in court showed that one entry concerning those notes had been made as of October 28 following other entries which recorded transactions of October 29. If evidence of such significance had been adduced in a liquor prosecution nobody would have the hardihood to say such evidence of notice was insufficient to carry the case to the jury. We must hold, also, that the evidence pertaining to the weekly reports of chattel mortgages supplied by the register of deeds at defendant’s request and for which it paid was competent on the disputed issue of notice. It is beside the point to argue that this service supplied was unofficial. That fact is of no importance. If the courthouse janitor had informed the defendant that Lundstrom had given plaintiff a second mortgage on his personal property, that fact would have been competent evidence of notice, and the same information supplied unofficially by the register of deeds was no less competent.\n2. Error is assigned on the trial court’s instruction, No. 10, too long for reproduction, touching the distinction between notice and knowledge of plaintiff’s second mortgage. The argument against this instruction is partly predicated on its hypothesis that defendant was entirely ignorant of the fact that plaintiff had accepted a second mortgage from Lundstrom in settlement of its attachment suit. Of course a senior mortgagee has no duty to inspect the public records *453to apprise himself of the existence of possible junior liens (unless and until the matter of a renewal of such senior lien requires attention), but the trial court took adequate care of this feature of the case, as follows:\n“11. You are instructed that the filing of plaintiff’s mortgage is not sufficient to impart actual notice or knowledge of the existence of the chattel mortgage to the owner of the first mortgage. Such owner of the first chattel mortgage must have actual notice or knowledge of the existence of such second mortgage aside from the mere fact that such chattel mortgage was filed.”\n3. It is next urged that the auction held by Lundstrom was conducted in good faith, and that plaintiff’s junior claim was lawfully extinguished thereby. Whether that auction was bona fide or simulated and fraudulent was a question of fact; and the evidence which the triers of fact apparently believed was to this effect: The president of the defendant bank testified that the sale bills were printed at his direction and that he attended the sale. Joe Morine testified:\n“I was the auctioneer at the C. L. Lundstrom farm on February 5, 1929. C. L. Lundstrom made the arrangements and told me it was going to be ‘somewhat of a peculiar funny sale.’ He said he didn’t expect to sell the property, but he wanted me to make him a price on the job lot in place of a commission arrangement. On account of his representation that it was not an actual sale I made him a special price of $15. . . . After the sale Mr. Lundstrom said the property had all been bid in for him with the exception of the $22.50 item.”\nVarious witnesses testified that they made bids at the auction on various properties, hogs, corn, pigs, calves, cows, and that these were knocked down to them but that they paid no attention to them after the sale. Lundstrom testified that nothing was said about the auction being a foreclosure sale, and that it was advertised as an ordinary public auction. He also testified that only the chattel property covered by plaintiff’s mortgage was put up for sale.\nIn view of such a record it is impossible for this court to hold that plaintiff’s rights as junior chattel mortgagee were extinguished by the simulated sale of February 5,1929.\n4. It is next contended that plaintiff should have asserted its rights within a reasonable time after discovering the alleged fraud and duplicity of Lundstrom and the defendant bank. It is not clear from the record just when plaintiff became fully apprised of the fraud. It had not been greatly concerned because of the filing of defendant’s chattel mortgages upon the heels of its attachment suit, for the reason that at that time Lundstrom’s chattel property was *454believed to be quite sufficient to satisfy defendant’s mortgages and plaintiff’s claim also. Apparently plaintiff preferred a second mortgage on Lundstrom’s chattels to a lawsuit with defendant to decide the questions of precedence and bona fides between itself as attaching creditor and defendant as ostensible chattel mortgagee. The record shows that Lundstrom was selling his chattels in piecemeal all through the years 1928, 1929, and 1930, but there is no evidence to show that plaintiff knew — or when it knew — that enough of the property had been sold to satisfy defendant’s senior liens. There is nothing in the record to show that plaintiff waited an unreasonable time before commencing its action.\n5. It is next contended that fraud was not sufficiently pleaded and that it was not proved. Plaintiff's petition was not subjected to a timely attack; defendant chose rather to join issues of fact which the petition tendered. So far as concerns the proof it can hardly be denied that there was competent evidence of fraud. However, those allegations and evidence of fraud may now be regarded as mere matters of inducement; they give a background to an intelligible understanding of the situation which culminated in this lawsuit. The trial court found it possible to determine the rights of the parties without a positive finding of fraud further than implied in its approval of the jury’s findings. We discern nothing in such a disposition of the case to justify complaint by defendants.\n6. Other points urged against this judgment must be summarily disposed of for want of space and time for further discussion. Defendants were not entitled to judgment on the record. The substitution of the receiver for the defendant bank did not alter or diminish plaintiff’s cause of action; the jury’s findings 6, 7 and 12 were not adverse to plaintiff; no error transpired in admitting the testimony of the witness Fornberg; the trial court fairly stated the issues to the jury; the plaintiff waived nothing and was not estopped to prosecute its claim in this action; the trial court did not suppress any valid claims or defenses advanced by defendants nor did the court mistake defendants’ claims; no error was committed in the instructions given or refused; there is no inconsistency in the jury’s findings 6 and 16 or otherwise; the statute of limitations did not bar this action; and the record fails to show that defendants did not have a fair trial.\n■ Before concluding, however, we must say a final word of comment on the sort of an appeal presented here. From first to last the record and the argument have been interlarded with a myriad *455of items of account on the assumption that this court should take these up and deal with them separately. Not so, however. That was the function of the trial court, as is the case in any other action involving mere issues of fact. In City of Oswego v. Condon, 124 Kan. 823, 825, 262 Pac. 542, where a formidable record involving an accounting to establish an alleged shortage in a city treasurer’s funds was submitted for our review, it was said:\n“It is altogether beyond the functions of this court to make an independent accounting of the fiscal affairs of the city ... to determine the status of the treasurer’s accounts. It must suffice to say that no manifest or demonstrable error is disclosed in the findings and they will have to stand.”\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7911604 } ]

"1932-12-03"

[ "136 Kan. 571", "16 P.2d 547" ]

[ { "author_str": "Burch", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe opinion of the court was delivered by\nBurch, J.:\nThe action was one to recover damages from the city for personal injuries inflicted by a mob. Plaintiff prevailed, and the city appeals.\nPlaintiff introduced his evidence and rested. The city demurred to plaintiff’s evidence, and the demurrer was overruled. The evidence, which need not be recited, was such that it would have been egregious error for the court to sustain the demurrer.\nHaving no defense, the city introduced no testimony. The city requested the court to give an'instruction to the jury. The evidence furnished no basis for the instruction, the instruction was incorrect in point of law, and it was properly refused. Instead of the requested instruction, the court gave an instruction which was based on the evidence and which was correct in point of law.\nThere is no complaint of the court’s definition of a mob, and the tumult of the riotous assemblage which mauled plaintiff was such that occupants of dwelling houses along the street were aroused from their beds, and one man got out of bed and fired shots over the heads of the mob to disperse it. The police department of the city was called, but did not respond for an hour and a half.\n*572The verdict in plaintiff’s favor was for $2,750, and the only complaint of the verdict is that it was excessive.\nPlaintiff was badly beaten. He was severely cut about his face, and his face, body and legs were black and blue. He bled profusely, and suffered great pain. He was taken to a hospital, where several stitches were taken in his lip, and his head was bandaged. Teeth were knocked out. As a result of his pommeling it became necessary to extract sound teeth, and his mouth troubled him for three or four months. Pie received a severe wound behind the right ear, which has affected his hearing. Pie was injured on the night of August 9,1930. The trial commenced on October 8,1931. He testified the injury caused a throbbing on the inside of the ear, his ear had troubled him continually, became worse, still troubled him, and at the time of the trial he could not hear well. The verdict had the approval of an able district judge, experienced in the trial of personal-injury cases, and this court declines to reduce the amount of the verdict.\nThe judgment of the district court is affirmed.\n", "ocr": true, "opinion_id": 7911641 } ]

"1933-01-07"

[ "136 Kan. 637", "17 P.2d 827" ]

[ { "author_str": "Dawson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe opinion of the court was delivered by\nDawson, J.:\nThese actions, consolidated for purposes of trial, were brought by plaintiffs to enjoin the city of Salina and its officials from constructing a new channel for the Smoky Hill river at and near the eastern limits of the city. The project was designed to protect public and private property thereabout from recurring floods. The proposed channel was to be 3,500' feet in length, and would shorten the tortuous course of the stream to the extent of several miles. The improvement also contemplated the construction of a dam, certain dykes, and a $48,000 bridge, as incidents to the main project.\nThe city took the initial step toward the projected improvement by the adoption of a resolution, March 18, 1929, reciting that it was deemed necessary for the public good that the bridges, streets, alleys and other public and private property in the city be protected from the overflow of the Smoky Hill river, and the city engineer was directed to make a survey of the territory.\nOn October 24, 1929, the engineer’s report was filed, and four days later it was approved by the city government, and likewise approved by the public service commission on November 25, 1929.\nThe city next procured the services of a firm of consulting .engineers who made a survey of the volume of flood waters of the river and matters pertinent thereto.\n*639On February 17, 1930, the city authorized a survey of a right of way for the proposed improvement, and on May 5, 1930, the right of way thus surveyed was subjected to condemnation; and, on application to the district court, commissioners were appointed to appraise the condemned property and to assess damages for the land taken.\nAt this stage of the proceedings, on June 28, 1930, this action, No. 30,732 herein, by Putnam et al., was begun against the' city and its governing officials to restrain them from constructing this projected improvement. Plaintiffs pleaded the foregoing facts and alleged that they were owners of described lands which would be subjected to condemnation for the proposed improvement; that dykes and ditches would be constructed thereon; that plaintiffs’ property contained a highly valuable stratum of sand and gravel for which there was a commercial demand; that they had erected a sand plant thereon costing $50,000, and that such plant had been operated for the past two years at an annual profit of $20,000.\nPlaintiffs alleged that the proposed dyke would destroy their business, deprive them of access to their shipping facilities, confiscate their sand and gravel plant, render forty acres of their land inaccessible and worthless, subject their other lands to flood hazard, and cause other irreparable damages to them set out in detail. .\nPlaintiffs further alleged that the territory of the proposed project lay outside the limits of the city; that defendants had not sufficient funds to construct it; that they were without authority to raise funds to pay damages; and that the statutes under which defendants were proceeding were violative of certain cited provisions of the state and federal constitutions.\nOn January 13, 1931, No. 30,733 herein was begun by Housel et al. against the city and its officials as a taxpayers’ suit under the code (R. S. 60-1121). The petition recited substantially the same fact as in the Putnam case, and alleged that plaintiffs owned real and personal property in the city subject to taxation; that defendants had set about the projected flood control at public expense with the intent and purpose of subjecting all property within the city to the payment of assessments for such improvement and to pay damages for the condemnation of property taken for flood control and its incidents; and that defendants proposed to pay for the projected improvements and the damages pertaining thereto by a bond issue to *640the amount of a half million dollars without a bond election to sanction such issue.\nPlaintiffs further alleged that the engineers’ estimates of costs and damages were wholly inadequate; that they took no account of resulting damages to lands which will inevitably be flooded if the proposed flood-control project is a success in the locality it is designed to protect; that no funds are provided to satisfy such resultant damages; and it was further alleged that defendants had made no effort to assess any benefits to private property on account of such improvement; and that defendants intended to cast the entire cost upon the taxpayers of the entire city and to issue the bonds of the city in payment therefor.\n. Plaintiffs’ petition concluded with allegations of various infirmities in the statutes (to be noted below) under which defendants assumed to act, and prayed for the same injunctive relief sought by plaintiffs in case No. 30,732.\nIn the first of these cases defendants answered at length, admitted their intention to proceed with the projected improvement, set out in detail the various procedural steps they had already taken, maintained the validity of the statutes under which they were acting, and concluded with a prayer for judgment in their behalf.\nIn the companion case of Housel et al. the answer made appropriate admissions and denials leading to a similar joinder of issues.\nBoth causes were tried by the court without a jury. Evidence for plaintiffs and defendants was introduced; findings of fact and conclusions of law were made, and judgment in favor of plaintiffs was rendered in both cases.\nDefendants’ motions to set aside the conclusions of law, for judgment on the findings of fact and for a new trial were overruled. Hence these appeals.\n1. Before noticing the matters urged by defendants we must consider a motion of plaintiffs to dismiss on the ground that defendants have failed to procure and file a transcript of the testimony, yet have made repeated references to the evidence in the course of their brief and argument.\nAs these cases were tried by competent counsel it seems sufficient to say that the want of a transcript does not necessarily require the dismissal of an appeal but merely restricts the scope of appellate review.\n*641“Failure to provide a transcript of the evidence does not necessarily require the dismissal of an appeal; it merely excludes from the scope of the review those features of the lawsuit dependent thereon.” (Lasnier v. Martin, 102 Kan. 551, syl. ¶ 1, 171 Pac. 645.)\n“Where appellee objects to the sufficiency of a record whose accuracy is dependent on the recollection of appellant’s counsel of what transpired at the trial, a record so limited will not permit an unrestricted appellate review.” (Wyckoff v. Brown, 135 Kan. 467, syl. ¶ 1, 11 P. 2d 718, 720.)\nSee, also, Richards v. Kansas Electric Power Co., 126 Kan. 521, 526, 268 Pac. 847, and citations.\n2. Turning to the legal questions reviewable in this restricted appeal, it is contended that the trial court erred in its ruling that the first of the statutes under which this project was undertaken (Laws 1917, ch. 87, R. S. 12-635 to 12-646) as originally enacted was unconstitutional. This statute, entitled “An act relating to natural watercourses,” consisted of thirteen sections. Its first section suggests its general purpose:\n“Section 1. That the mayor and council or the mayor and commissioners of any city in the state of Kansas, in which there is, or through which there flows, a natural watercourse, the overflow from which, in the event of high water, is liable to cause injui-y to any bridge, street, alley, public or private property, may, in order to prevent said injury, construct the necessary levees and embankments, change and raise the grade of streets and alleys and the approached to bridges and raise said bridges and make all other improvements necessary to protect the same: Provided, however, That none of the provisions of this act shall be held or construed to repeal or affect the powers of drainage districts now organized under the provisions of chapter 215 of the Session Laws of 1905.”\nThe succeeding sections prescribe the successive steps under which such improvement shall be made. By section 11 (R. S. 12-645) it was provided:\n“That said [governing body] . . . shall provide- for the payment of said bonds and the interest thereon as the same becomes due and payable, by the levy of a general tax on all the taxable property in said city.”\nA rather obvious infirmity in this statute was that it gave sanction to the construction of a project of flood control for the benefit of private as well as public property, the cost of which should be met by a bond issue to be paid by the levy of a general tax upon all the taxable property of the city. Of course public taxation is not permissible for the improvement of' private property. In the early case of Leavenworth County v. Miller, 7 Kan. 479, 518, where *642questions relating to the validity of a county bond issue given in aid of the construction of a railroad were under consideration, it was said:\n“(1) Taxation must be for a public and not merely a private purpose; (2) the taxes must be properly apportioned; (3) the district taxed must have a special interest in and be specially benefited by the thing for which the taxes are levied.”\nThis principle of taxation underlay our decisions in C. B. U. P. Rld. Co. v. Smith, Treasurer, et al., 23 Kan. 745, and City of Geneseo v. Gas Co., 55 Kan. 358, 40 Pac. 655. The same rule was well applied in Loan Association v. Topeka, 87 U. S. 655, 22 L. Ed. 455. See, also, Darby v. Otterman, 122 Kan. 603, 252 Pac. 903; 2 Cooley’s Constitutional Limitations, 8th ed. 986, 1026; 37 Cyc. 719, 720; 26 R. C. L. 41-44.\nHowever, it is not clear that the entire act of 1917 was unconstitutional because of the invalidity of section 11. It would seem that the want of a valid and pertinent provision in the statute for the assessment of benefits and for apportioning the cost of the improvement between the public and private property benefited thereby merely rendered the statute inoperative rather than unconstitutional as a whole. Such a view is supported by respectable authority. In State, ex rel., v. Cincinnati, 52 Ohio St. 419, 27 L. R. A. 737, a statute of eleven sections which authorized cities of a certain class to annex contiguous municipalities under specified conditions contained a constitutional infirmity in its first section, as originally enacted. That section was redrafted and reenacted by the legislature of Ohio. In litigation which followed it was contended that the originally defective section rendered the entire statute unconstitutional, and that its infirmity could not be cured by amending the section which had rendered abortive the entire act. But the court held otherwise. The pertinent headnote reads:\n“An amended section of a statute takes the place of the original section and must be construed with reference to the other sections, and they with reference to it; the whole statute, after the amendment, has the same effect as if reenacted with the amendment, and hence, an unconstitutional statute may be amended into a constitutional one, so far as its future operation is concerned, by removing its objectionable provisions or supplying others to conform it to the requirements of the constitution.” (Syl. HI.)\nIt seems to us that this rule is necessarily correct. If a section of any of our familiar and important statutes, such as that of descents and distributions, the statute of wills, the crimes act, or a section of *643one of our codes of procedure, should be held unconstitutional, surely it would not be held that such an infirmity would vitiate the whole statute and necessitate its entire reenactment merely to amend and correct the objectionable matter in a single section. In 25 R. C. L. 906, this question is treated thus:\n“. . . Where the obnoxious features of the statute may be removed, or essential ones supplied by a proper amendment, so that it can be held that, had the law been primarily so framed under its title and within its scope as it has been by the amendment thereto, it would have been valid, it may be rendered valid by amendment, so far as its future operations may extend. . . . And, in the absence of such a constitutional provision, there can be little question but that a statute which violates a constitutional provision may be amended so as to remove the offending parts without reenacting the entire statute, if the defective provision is so separable from the rest of the statute as not to- render it unconstitutional in its entirety, . . . This is oh the theory, according to some decisions, that such an act is not void, but merely inoperative, and that it becomes operative on the removal of the defect by an amendment.”\nSee, also, note on the legislative power to cure unconstitutional statute by amendment in 60 L. R. A. 564.\n3. The original section 11 (R. S. 12-645) whose defects rendered the act of 1917 abortive was amended in Laws 1927, ch. 99, the title to which read:\n“An Act amending section 12-645, Revised Statutes of Kansas, 1923, relating to the protection from flood waters, and the method of paying therefor, and the assessment of special benefits that may accrue to property especially benefited by the construction of a storm sewer in cities of the first class, and repealing section 12-645, Revised Statutes of Kansas, 1923.”\nThe amended section reads:\n“The governing body shall appoint three disinterested householders of the said city to appraise any special benefits that may accrue to any property by reason of said improvement being made. Said appraisers . . . shall personally view, inspect and examine all lots and pieces of land liable to be specially benefited by said improvement being made. If, in their judgment, any lots and pieces of land will be specially benefited by said improvement being made, other than the benefits to the city generally, said appraisers shall report the same to the governing body, listing the lots and pieces of land specially benefited and the amount of special benefit to each. The same notices, public hearings, time for objections and appeals shall apply to said report as provided for the report of appraisers to assess damages as provided in sections 12-639-640-641-642 and 643 hereof. The governing body shall have the power to revise and correct said report if in its judgment any benefit appraised to a lot or piece of land is too much or too small, and when so revised, corrected and approved by the governing body, the special benefits so ascertained shall be *644assessed against each lot and piece of land and collected the same as special taxes for sewers are collected: Provided, That should the benefits so- ascertained exceed the cost of the improvement, a pro rata reduction shall be made to each lot and piece of land, so that the tptal assessments shall equal the cost of the improvement; and should the benefits so ascertained be less than the cost of the improvement, the remainder of the cost shall be assessed against the city generally, and said governing body shall provide for the payment of the said city at large portion of said bonds and the interest thereon as the same becomes due and payable, by the levy of a general tax on all the taxable property in said city.” (R. S. 1931 Supp. 12-645.)\nBefore examining tliis act of 1927 and its title, it may be well to take note of successive amendments which have been made to original section 1 (R. S. 12-635) of the act of 1917. It was amended by chapter 95 of the Session Laws of 1925, and again amended in Laws 1929, ch. 107, as follows:\n“An Act relating to the protection of cities from overflow of natural watercourses, amending section 12-635, Revised Statutes of 1923, as amended by\nchapter 95, Laws of 1925, and repealing said original section as amended.\n\"Section 1. That original section 12-635, Revised Statutes of 1923, as amended by chapter 95 of the Laws of 1925, be and the same is hereby amended to read as follows: Section 12-635. That the governing body of any city of the state of Kansas in or near where there is, or through which there flows, a natural watercourse, the overflow from which in the event of high water is liable to cause injury to any bridge, street, alley, public or private property, may, in order to prevent said injury, acquire by condemnation and eminent domain, or purchase, within or without said city limits, within five (5) miles therefrom, the land and easements necessaiy to construct drains, canals and artificial watercourses, or to widen and straighten existing drains and watercourses, or to construct the necessary levees and embankments, and may change and raise the grade of streets and alleys and the approaches to bridges, and raise said bridges, or construct bridges where necessary, and may widen existing drains, channels and canals, and acquire the necessary outlets therefor beyond the limits of the city, and may cause any and all other necessaiy work, construction and improvements to be made to protect said city and public and private property therein located from floods and damage by overflow of said natural and artificial watercourses: Provided, however, That none of the provisions of this act shall be held or construed to repeal or affect the power of drainage districts now organized under the provisions of chapter 215 of the Session- Laws of 1905; And provided further, That this act shall have no force or application in cities through which flows a navigable stream.”\nIt will be observed that the title to the act of 1927 quoted above, indicates a purpose of authorizing the assessment of special benefits which may accrue to property by the construction of a storm-sewer in cities of the first class. The act itself, quoted above, says nothing about storm sewers, but gives methodical directions for the *645assessment of special benefits accruing to “lots and pieces of land liable to be benefited by the improvement to be made,” that is, by a flood-control improvement so authorized by the act of 1917. It is elementary, of course, that whatever features of the title of an act are wanting in its text may be ignored; and whatever material matter in the act is not fairly indicated by its title is void. In State, ex rel., v. McCombs, 129 Kan. 834, 838, 294 Pac. 618, it was said:\n“The title may be broader than the act itself, but the act may not be broader than the title. [Citations.]”\nIt would seem that the purpose of the act of 1927 (ch. 99) is clearly expressed in its title by these words:\n“An Act amending section 12-645, Revised Statutes of Kansas, 1923, relating to protection from flood waters, . . . and repealing section 12-645, Revised Statutes of Kansas, 1923.”\nBut since the text of this statute has nothing to say about storm sewers the words in the title relating to “the assessment of special benefits that may accrue to property especially benefited by the construction of a storm sewer in cities of the first class” must be regarded as impertinent surplusage. In this view the title and text of the act of 1927 are sufficient to cure the defect in the original section 11 of the act of 1917; and it must be held that, so far as concerns the present actions, the amendment of 1927 to the act of 1917, in title and text, is valid.\n4. One objection to the act of 1917 with all its amendments, which is stressed by counsel for plaintiffs and which seemed serious to the trial court, is that the statute contemplates that the flood-control project may be undertaken for the benefit of public and private property; and it is suggested that eminent domain cannot be invoked for the benefit of private property. The progress of the law has put some limitations on that doctrine. Following the disastrous floods in 1903 and 1904, which devastated the valley of the Kaw, legislation was enacted (Laws 1905, eh. 215) which authorized the creation of flood-control districts (called drainage districts) whose principal purpose and function is to protect private property from floods, and where the protection of public property, bridges, schools, and the like, is or may be an inconsequential proportion of the protection afforded. Any such drainage district was given the power of eminent domain, the theory being that when a great amount of private property requires protection *646against recurring hazards of inundation any such hazard may become a matter of public concern, and the power of eminent domain may rightfully be exercised, because the public welfare is in fact affected. See Laws of 1905, ch. 215, and successive amendments thereto; R. S. 1923, ch. 24, and annotations; R. S. 1931 Supp., ch. 24, and annotations. In Roby v. Drainage District, 77 Kan. 754, 757, 95 Pac. 399, the first of many cases requiring our attention after the enactment of the statute of 1905, this court made note of the fact that public property of the city of Topeka was included with private property in the drainage district under consideration; and, indeed, it is hardly conceivable that in any of the various drainage districts organized to provide flood control in this state in the last twenty-five years there would be an entire absence of public property ; and it may be taken for granted that assessments and benefits have been imposed thereon and charged thereto as is done in the construction of the more familiar types of special improvements, like street paving, sewers and sidewalks. (Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 Pac. 788.) In this case of Roby v. Drainage District, supra, it was said:\n“The power of the legislature to create districts for the purposes of drainage and to provide for assessments to be made therein by the drainage board to pay for such improvements cannot be successfully questioned. (Ross v. Supervisors, 128 Iowa, 427, 104 N. W. 506, 1 L. R. A. n. s. 431 and note.) This may be done through a corporation thus organized, or through county or township boards (Gen. Stat. 1901, ch. 34), or by carrying sewer districts as provided in the laws governing cities. When the nature of the case does not conclusively fix it, the power to determine what shall be the taxing district for any particular burden is a legislative power, not restricted except by constitutional limitations. (1 Cooley, Tax., 3d ed., 234.) The benefits of a highway, a levee or a drain may be so peculiar that justice would require the cost to be levied upon a part of a township or county, or upon parts of several subdivisions of the state.”\nIn our examination of the statute of 1917 and its various amendments we are unable to discern such infirmities in it as would vitiate any and every flood-control project which might be undertaken under its provisions. A city may be so situated that the only practical means of averting its flood hazards would be by some engineering project, to pay for which all real property within the corporate limits, public and private, should be charged with benefits and burdens fairly assessed and imposed. But the city of Salina may not be so circumstanced. At least, this court cannot take judicial *647notice of that fact, and the trial court’s pertinent finding on this point reads:\n“. . . The evidence shows, and the court finds, that the principal benefit from the construction of the Smoky Hill river project will accrue to private property in the city of Salina lying east of the Smoky Hill river. . . .\n“The principal damage from flood waters is to the real estate over which it flows. The principal benefit of flood control is to real estate.\n“Under the proceedings contemplated by the city all of the cost of the improvement except such as might be assessed to the lots and tracts of real estate specially benefited, must be raised by the assessment of real estate not benefited and by the assessment of all the personal property in the city. . . .”\nIn the limited review permitted to this court because of the want of a transcript and the want of a motion attacking this finding of fact, this court is bound to hold that this finding cannot now be disturbed, and of necessity it must control our disposition of these appeals.\nIn its findings of fact and conclusions of law the trial court referred to a number of other objections to the proceedings as undertaken and contemplated by defendants. One question raised by the litigants and left undecided related to a proposed construction of a bridge to cost $48,000 as a part of this flood-control project without submitting that detail to a vote of the people. But neither party complains because this question was left undecided, so this matter is not open to review. (But see R. S. 10-201, 10-202 and 13-1034.) Other matters raised by the pleadings upon which no ruling was made, and as to which no complaint was made below, are not subject to appellate review.\nTo summarize: The statute of 1917 was merely inoperative and not wholly unconstitutional because of the defects and insufficiency of section 11 to make proper provision for the assessment of benefits and for the proper apportionment of the costs to the public and private property within the city to pay for the projected improvements. We also conclude that the amendment to section 11 of this act of 1917, in chapter 99 of the Laws of 1927, was enacted in conformity with the constitutional requirement of article 2, § 16; and so far as suggested by the briefs and arguments of counsel that amended section (Laws 1927, ch. 99, R. S. 1931 Supp. 12-645) is valid and sufficient to make the statute operative. The fact that both public and private property are to be benefited by the proposed flood-control project does not render it illegal, provided each kind of property is fairly charged with the benefits accruing thereto and its *648proper share of the cost of the improvements fairly assessed against it. But real property within the city not subjected to flood hazard, or which will receive no practical benefit from the projected improvement, cannot be taxed for its construction. It must also be held that the general mass of personal property within the city cannot be taxed to pay the cost of this flood-control project where the property to be benefited thereby is wholly or principally real estate. The fact that private property is to be the principal beneficiary of a flood-control project does not render such project one of mere private concern nor forbid the authorization of the power of eminent domain to accomplish it.\nThe other objections to the judgments have all been noted. None of them was of sufficient gravity to change the result, nor do they justify further discussion.\nThe judgments are affirmed.\nBurch, J., not sitting.\n", "ocr": true, "opinion_id": 7911665 } ]

"1933-01-28"

[ "136 Kan. 764", "18 P.2d 195" ]

[ { "author_str": "Harvey", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe opinion of the court was delivered by\nHarvey, J.;\nThis is a condemnation proceeding. The principal question presented here is whether the appeal bond, signed by a part only of the tenants in common, owners of the real property con*765demned, gave the court jurisdiction of the appeal as to the other tenants in common. Allied with that is the question whether the bond given was sufficient to authorize the district court to permit its amendment.\nThe railroad company, desiring to construct its road on a new right of way through a portion of Dickinson county, commenced condemnation proceedings to obtain the right of way through a tract of land owned by W. A. Sinclair, Ellsworth Sinclair, Jennie Sinclair, Katie Graffis, Erma Moore and Aaron Sinclair, as tenants in common. Commissioners were appointed who made an award of $915. Within ten days thereafter an appeal bond was filed. In its caption all of the owners of the real property were named. It recited (among other things not complained of) “That we, Katie Graffis, ... as principal, and W. A. Sinclair, ... as surety, are held and firmly bound,” etc. It was conditioned that, whereas the railroad company had caused commissioners to be appointed who “did assess and appraise the land and all damages to the following described property belonging to W. A. Sinclair, Ellsworth Sinclair, Jennie Sinclair, Katie Graffis, Erma Moore and Aaron Sinclair (the property is described), . . . and, whereas, said landowners feel themselves aggrieved by such assessment, and intend to appeal therefrom to the district court of said Dickinson county, Kansas, Now, therefore, . . .” It was signed by Katie Graffis and W. A. Sinclair, and W. A. Sinclair signed an affidavit qualifying as surety on the bond, which bond was approved by the clerk of the district court.\nAfter the time provided by statute for appeal had expired the railroad company filed a motion to dismiss the appeal as to all of the owners of the property except Katie Graffis, named as principal in the appeal bond given. Thereafter the other owners of the property filed a motion asking leave of court to amend the appeal bond so as to name all of the owners of the real property as principals and to have additional surety. Both motions came on to be heard. The court overruled the motion of the railroad company and sustained the motion of the property owners. Thereafter an amended appeal bond was filed, substantially the same as the first, except that all of the tenants in common, owners of the real property, were named as principals and a third person as surety, and the bond was signed by all of the owners as principals and by the surety. Thereafter a trial was had, resulting in an award to the property owners of $1,526.35. In the meantime Katie Graffis had *766died and there had been a reviver in the name of Jake Graffis, her sole and only heir, but no point is made of that. After the verdict the railroad company moved to reduce the verdict to the amount representing the interest of Jake Graffis, successor in interest to Katie Graffis, the only claimant that perfected an appeal by giving bond within the time provided by law. This motion was overruled.\nIn this court the appellant contends that but one of the several owners of the real property appealed' — that the others did not even make an attempt to appeal, hence, as to them, there was no appeal — and that there was nothing in the nature of an appeal bond filed by them in court which could be amended. Cases are cited and relied upon (Lovitt v. Wellington & Western Rld. Co., 26 Kan. 297, and St. L. K. & S. W. Rly. Co. v. Morse, 50 Kan. 99, 31 Pac. 676) in which the appeal bond given, or the instrument purporting to be a bond, was for some reason void in toto, in which cases it was held there was nothing to amend, and hence an attempted amendment after the time for appeal had expired was without effect.\nThe proceeding before us does not fall within the rule of those cases. Each tenant in common of real property has an undivided title and the right to possession of the property (Schwab v. Wyss, 136 Kan. 54, 12 P. 2d 719). He may maintain forcible entry and detainer (Klingbeil v. Neubauer, 111 Kan. 716, 208 Pac. 255), or an action in trespass (King v. Hyatt, 51 Kan. 504, 32 Pac. 1105), or in ejectment (Horner v. Ellis, 75 Kan. 675, 90 Pac. 275), and recover for the entire property. Here the owners of the property were treated as a unit in the award made. There were no separate awards for the respective owners. The bond recites, after having named the owners of the land, “said landowners feel themselves aggrieved . . . and intend to appeal.” It is quite clear that the appeal was taken on behalf of all cotenants and for their benefit. Generally the rights of all cotenants will be saved from the operation of a statute of limitations by any cause that will prevent its running against any of them. (38 Cyc. 123.) Perhaps, in the light of the authorities above mentioned, it could have been determined for the benefit of all under that bond, but we do not need to decide that question. Certainly the bond was not void in toto. If there were any question about the form of the bond it was within the discretion of the court to permit it to be amended. (McClelland *767Bros. v. Allison, 34 Kan. 155, 8 Pac. 239; St. L. & S. F. Rly. Co. v. Hurst, 52 Kan. 609, 35 Pac. 211; Parker v. Gibson, 78 Kan. 90, 96 Pac. 35; Elliott v. Bellevue, 82 Kan. 78, 107 Pac. 794; Wood v. School District, 102 Kan. 78, 169 Pac. 555; Burke v. Missouri-K.-T. Rld. Co., 132 Kan. 625, 296 Pac. 380.)\nWe find no error in the ruling of the trial court, and its judgment is affirmed.\nThiele, J., not participating.\n", "ocr": true, "opinion_id": 7911686 } ]

"1933-07-08"

[ "138 Kan. 26", "23 P.2d 595" ]

[ { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe opinion of the court was delivered by\nSmith, J.:\nThis action was instituted in probate court to collect a promissory note. The probate court gave judgment for the holder of the note. An appeal was taken to the district court, which gave judgment for the maker of the note. The appeal is from that judgment.\nThe first question raised is that a motion to dismiss the appeal to the district court should have been sustained. This motion was filed on the ground that no affidavit of proof of service of the notice, of appeal and no affidavit for appeal had been filed as required by R. S. 22-1102. A hearing was had on this motion. The evidence disclosed that the docket of the probate court did not show any record of the filing of such an affidavit. Counsel for the holder of the note, together with the probate judge, searched the files of the case every few days during the thirty-day period allowed for perfecting the appeal and found no affidavit. A few days after the thirty-day period had elapsed counsel for the holder of the note called at the office of counsel for the executor and advised the stenographer in that office that he held a final judgment against the estate and that no affidavit for appeal had been filed in the probate court. Within a few days an affidavit for appeal was discovered in the files of the case, with no filing mark on it.\n*27At a hearing on the motion to dismiss the appeal in the district court the evidence of plaintiff was substantially as outlined above. While no denial of that motion was filed at the hearing, it was treated as though it had been denied. Counsel for the executrix, his stenographer and notary, who had prepared the affidavit and taken the acknowledgment to it, testified that the affidavit was prepared in time; that a complete file consisting of carbon copies of all papers in the case was kept in the office; that carbon copies of the notice of appeal and affidavit for appeal were in the file; that neither of them had any distinct recollection of having taken them to the office of the probate court; that neither had seen the affidavit and notice after filing until the time of the hearing, and that the papers had not been in their office since. There was testimony that occasionally, when some one came into the office to file papers and found the probate judge out, the papers would be left on the desk of the judge to be filed by him on his return. The trial court heard the evidence on the motion to dismiss the appeal and held against dismissal. This amounts to a finding of fact that the affidavit was in fact filed. It will be seen that this finding was based on conflicting evidence. It will not be disturbed on appeal.\nThe trial of the case on its merits was by the court. The note was for $3,500, dated July 27, 1920, payable in six months from that date. On the back appeared the following:\n“Oct. 25, 1920........................... ... $250\nMay 1, 1927............................ ... $320\nFeb. 27, 1929........................... ... $72\n“Indorsed without recourse to R. C. Eastman by C A. Sealey.”\nThe hearing in probate court was on May 12, 1931, so it will be seen that the statute of limitations would have run but for the payments on May 1, 1927, and February 27, 1929.\nPlaintiff endeavored to establish that these payments were made by the maker of the note, on the dates written on it, by the testimony of one Mahoney that Morrow told him that he had spent more on a trip to New Mexico with Sealey than he had expected to spend and that he “had put that much on the Sealey note.” The plaintiff attempted to prove the execution of the note and the making of the payments by the testimony of Sealey, the payee of the note who had assigned it to Eastman. An objection to this evidence was sustained under the terms of R. S. 60-2804. The following offer of proof was then made:\n*28“Mr. Eastman : The claimant now offers to show by Mr. Sealey that the indorsements on the back of claimant’s exhibit No. 1, except as to where the date ‘May 1, 1927’ is written, that all of the rest of the writing on the back of it, including October 25, 1920, $250; paid $320; February 27, 1929, $72; that all of those matters that I have just enumerated represent credits for the claimant’s exhibit No. 1, were all placed there in the presence of Mr. Morrow and with his consent and approval, and some of them written by him. I believe the word — the figures ‘May 1, 1927’ was put on there by either Mr. Morrow or Mr. Morrow’s attorney; I am not sure or the estate’s attorney, I am not sure just which that is. We offer to make that showing by Mr. Sealey.”\nAn objection to this offer of proof was sustained. The plaintiff then rested his case. A demurrer to the evidence of plaintiff was then offered by defendant. This was taken under advisement by the court. The defendant did not introduce any evidence.\nThe court took the case under advisement and made the following finding:\n“Now on this 22d day of January, a. d. 1932, the court finds that respondent’s demurrer to evidence should be overruled, that respondent’s objection to testimony introduced by claimant should be overruled, that the testimony offered is not sufficient to establish a voluntary payment by deceased upon the note in suit after the running of the statute of limitations, therefore, the court finds in favor of respondent for costs.”\nJudgment was accordingly entered in favor of defendant.\nThe error upon which plaintiff places the most stress is the order denying his motion for a new trial. He complains that evidence was rejected by the court which would have been sufficient to sustain a finding that the credits in question were put there by the maker of the note. The record discloses that this evidence was not offered to the trial court in any record form. On this account the refusal of the court to admit it cannot be urged here as error. (See R. S. 60-3004; also, Leach v. Urschel, 112 Kan. 629, 212 Pac. 111; also, State, ex rel., v. State Highway Comm., 136 Kan. 297,15 P. 2d 449.)\nThe plaintiff argues further that the uncontradicted evidence tended to prove that the indorsements on the note were put there by the maker on the dates named. The record shows that the trial court was of this opinion when the demurrer to the evidence of the plaintiff was overruled. The trouble is, however, that evidently the court did not believe this evidence, even though it was uncontradicted by any direct evidence. This court cannot compel the trial court to believe witnesses when it appears that tribunal did not *29believe them. Neither can it reverse a judgment because offered evidence was not believed. (See Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, 234 Pac. 77; also, Peoples National Bank v. Diven, 135 Kan. 400,10 P. 2d 883, and cases there cited.)\nThe judgment of the trial court is affirmed.\n", "ocr": true, "opinion_id": 7911961 } ]