The principal question is whether the Standard Implement Company was in actual possession of the agricultural implements, buggies, wagons, etc., in controversy at the time the order of attachment was levied. It appears from the evidence that prior to April 13, 1889, L. M. Spencer was carrying on business at Kiowa, Barber county. He was then indebted to the Parlin & Orendorff Company, for agricultural implements, machinery, merchandise, etc., over $3,000, and to the Standard Implement Company for other agricultural implements, machinery, etc., $4,352.37. On the 12th of April, 1889, L. M. Spencer executed to A. N. Spencer, his brother, a chattel mortgage for $2,000 upon his stock of goods, but dated the mortgage back to April 10, 1889. It seems to be conceded that the chattel mortgage of $2,000 to A. N. Spencer was without consideration, and given to defraud, delay, and hinder the creditors of L. M. Spencer. On the 13th of April, 1889, L. M. Spencer executed a mortgage of $3,000 upon his stock of goods to the Standard Implement Company, but dated it April 12th, and then sent the same from Kiowa by mail to J. P. Hall, at Medicine Lodge, the register of deeds of Barber county, requesting him to "keep inclosed in your possession." There were no instructions to file or record the same. Hall received this chattel mortgage on the 13th of April, 1889, and on Sunday, the 14th of April, 1889, J. N. Eastwood, the agent of the Standard Implement Company, called on him, and received the mortgage executed by Spencer. He then redelivered it to Hall, as register of deeds, and requested him to file it in his office, and paid him his fees for such service. On the following morning at 7 o'clock, Monday, April 15th, Hall filed the mortgage in his office; but before that time, and about 4:30 o'clock A. M. of April 15th, the order of attachment of the Parlin & Orendorff Company was levied at Kiowa upon the stock of L. M. Spencer. On April 15, 1889, L. M. Spencer executed another chattel mortgage to the Standard Implement Company for $4,300, but this was not filed for record until the 16th of April, 1889, at 7 o'clock A. M., long after the levy of the attachment. It is said the second mortgage was given because the first mortgage did not cover the full indebtedness of Spencer to the Standard Implement Company. If the chattel mortgage of $3,000 of April 12, 1889, was not deposited for record prior to the levy of the attachment on the morning of April 15th. and if a the time of such levy the Standard Implement Company was not in actual possession of the stock of goods levied upon, the chattel mortgage was absolutely void as against the Parlin & Orendorff Company, attaching creditors. Paragraph 3903, Gen. St. 1889; Ramsey v. Glenn, 33 Kan. 271, 6 Pac. Rep. 265; Jewell v. Simpson, 38 Kan. 362, 16 Pac. Rep. 450.

It is urged that the mortgage of $3,000

was accepted in good faith, and that, as Hall, the register of deeds, was requested by Eastwood, the agent of the Standard Implement Company, on Sunday, April 14, 1889, to file the same, the filing thereof must date from that time, and therefore that the chattel mortgage was deposited in the office of the register of deeds prior to the levy on the morning of April 15th. The delivery by Eastwood to Hall of the chattel mortgage of $3,000 on Sunday, April 14th, cannot be considered as a "deposit in the office of the register of deeds" on that day. The public offices of a county are not open on Sunday, nor are they required to be open for business of any kind on that day. Paragraph 1877, Gen. St. 1889; section 255, Crimes & Punishment Act; Morris v. Shew, 29 Kan. 661; City of Parsons v. Lindsay, 41 Kan. 336, 21 Pac. Rep. 227. It is not claimed that the register was in his office on April 14th, or that the chattel mortgage was left at his office, and no creditor or subsequent purchaser was bound to take notice of such mortgage until taken to the office, or filed by the register of deeds in his office at 7 o'clock on the morning of April 15th. This was after the levy of the attachment. If the chattel mortgage had been deposited during the usual business hours of any week. day by Eastwood with the register of deeds in his office, and the register had failed or neglected to file it until the next morning, or some subsequent day, the rights of the mortgagee would not be affected or prejudiced thereby in a contest with another creditor. But, as stated, the chattel mortgage was not deposited for filing until the morning of April 15th. Before that time Hall was acting merely as the agent of the Standard Implement Company.

The testimony as to the party or parties in the actual possession of the stock of goods of L. M. Spencer at the time of the levy is greatly conflicting. There was testimony introduced tending to show that A. N. Spencer, on the 13th of April, 1889, under his fraudulent mortgage, took actual possession of the store building and adjoining premises, with all the goods, wares, and merchandise in dispute; that he continued in the possession of the building and the premises and the goods and merchandise until the levy. The affidavit of Mary J. Spencer, offered by the Standard Implement Company, stated, among other things, that just before the levy "George W. Stevens, the sheriff, came to the residence of L. M. Spencer, and said he wanted a key to the store building of Spencer; whereupon A. N. Spencer, the brother of L. M. Spencer, said in reply that he had the key to the store, and was in possession of the stock of goods of L. M. Spencer, under and by virtue of a chattel mortgage executed by L. M. Spencer to him, and that he would be up to the store within half an hour." There was testimony introduced to show that on the 13th and 14th

of April, L. M. Spencer was carrying on business in the store as usual, and that A. N. Spencer was not in charge. There was also testimony introduced tending to show that A. N. Spencer and the Standard Implement Company had joint possession of the stock at the time of the levy; and there was further testimony introduced tending to show that between 2 and 3 A. M. of April 15th, Eastwood, the agent of the Standard Implement Company, went into the store building of L. M. Spencer, accepted possession of the goods from A. N. Spencer, subject to his possession, and left the store before 3 o'clock, locking the door, and putting the key of one of the doors of the building in his pocket; that he then went to his hotel and retired.

George W. Stevens, the sheriff, testified: "Question. Now, referring to that order, [at tachment,] about what time was it that you went to Kiowa that night? Answer. Well, it was in the morning of the 15th, I think. I know it was before daylight. I can't tell the exact hour, but I think between three and four o'clock. I would not be certain about that, but before daylight. Q. Did you go to L. M. Spencer's residence that night? A. Yes, sir. Q. What did you do there? A. Why, I told him what I had come for; that I had come with an attachment, to take possession of his stock of goods there. Q. Where were you when you made that state. ment? A. I was in his house. Q. Who was present? A. His brother and his wife were there. Q. What did L. M. Spencer say to that? A. Well, I can't say exactly what he did say. He pretended to be very sick, and didn't want to talk about it, and didn't talk about it. I said 'pretended;' I guess he was sick. Q. You demanded the key? A. Yes I asked him for the key. His brother [A. N. Spencer] was there. His brother done more talking than he did. He said he held the goods under a chattel mortgage,-held the stock. Q. Claimed to be in possession of it? A. Yes, sir. Q. Did he say anything about anybody else being in possession with him of the stock? A. No, I think not; don't think he did. Q. You demanded the key of L. M. Spencer? A. Yes, sir. Q. What did he say? A. Said he didn't have it, and his brother said he would bring it to me up to the store building in 15 minutes. Q. Where did you go from there? A. To the store building. Q. You waited 10 or 15 minutes? A. Yes, longer than that, I think. Q. Did A. N. Spencer come? A. No; never came. Q. What did you do then? A. I went into the building. I put my notices in there that I had attached the property. Q. Now, at the time you took possession of that stock under this order of attachment, was there any one else there except Mr. Hopkins, Mr. Mercer, and yourself? A. No, sir; no one there except the parties that went with me. Q. Was there any notices or signs tending to show that the stock had been taken posses

sion of by some one else? A. Not to my knowledge. I saw nothing, sir. Q. What did you do after taking possession of the stock? A. I went from there to the hotel, but left the building in charge of Mr. Hopkins. He agreed to take charge of it until I came back in the morning. Q. What time did you go back in the morning? A. 7 o'clock, perhaps. As soon as I got breakfast I went back to the store building. Q. Who was there at that time? A. Mr. Hopkins was there. I don't remember whether Mercer was there when I got there. If not, he was there soon after. Q. Did any one else come there? A. I think several others came there during the morning. Don't remember all who were there."

On account of the conflicting evidence concerning the actual possession of the stock of goods and merchandise at the time of the levy, we cannot, as against the general finding of the trial judge, reverse the judg ment. There was sufficient evidence introduced to show the Standard Implement Company, did not have the actual possession at the levy. The burden of proving such possession was upon that company, the claimant of the property. Swiggett v. Dodson, 38 Kan. 702, 17 Pac. Rep. 594; McCarthy v. Grace, 23 Minn. 182; Wilson v. Hill, (Nev.) 30 Pac. Rep. 1076. The evidence being conflicting, we cannot interfere.

We will not construe the contracts of sale between the Standard Implement Company and L. M. Spencer, because it is admitted "that the title clause in the contracts only operated as a lien upon the goods." We do not decide that this is a proper interpretation of such contracts. The act of the legislature of May 25, 1889, requiring written contracts of conditional sales to be recorded, did not affect the rights of the parties, as the same accrued prior to the law going into force. Chapter 255, Sess. Laws 1889. The order and judgment of the trial court will be affirmed. All the justices concurring.

1. A trial court has ample power, where it is apparent that injustice may be done, to grant a continuance in a case called for trial, when the judgment of another case pending in the supreme court for review is about to be used as conclusive evidence of an estoppel.

2. Where an action of replevin was brought by a plaintiff against a defendant, and the defendant files an answer alleging former judgments between the same parties as res adjudicata, and the plaintiff has taken those cases upon proceedings in error to the supreme court for review, and has given sufficient supersedeas bonds, and has also obtained an order from the district court rendering the judgments, "staying all things pending the determination of the supreme court in the actions," and the plaintiff applies to the trial court for a continuance until such pro

ceedings in error are disposed of, and, after this motion is overruled, asks permission to dismiss the case without prejudice, and, after this is also overruled, is defeated on the trial upon the plea of res adjudicata by the former judgments, held, that the plaintiff's rights were prejudiced by being forced into trial, and that the trial court abused its discretion in not continuing the hearing of the cause until after the cases pending in the supreme court were determined.

(Syllabus by the Court.)

Error from district court, Barber county; C. W. Ellis, Judge.

Replevin by the Standard Implement Company against George W. Stevens, sheriff, and the Parlin & Orendorff Company. Defendants had judgment, and plaintiff brings error. Reversed.

The other facts fully appear in the following statement by HORTON, C. J.:

This was a replevin action brought on the 17th day of April, 1889, by the Standard Implement Company against George W. Stevens, as sheriff, for the recovery of $1,800 worth of personal property, consisting of agricultural implements, buggies, etc., obtained by L. M. Spencer from the Standard Implement Company. George W. Stevens, the sheriff, filed an answer alleging that he held the personal property under two orders of attachment pending in the district court of Barber county in favor of the Parlin & Orendorff Company against L. M. Spencer. The Parlin & Orendorff Company, the party really interested, filed an answer containing a general denial, and also the plea of res adjudicata on accouht of certain proceedings in the district court of Barber county between that company and L. M. Spencer and the Standard Implement Company, wherein certain orders of attachment levied upon the goods and chattels described in plaintiff's petition in this action were sustained, and the claim of ownership of the Standard Implement Company denied. On the 24th of November, 1890, the Standard Implement Company filed its motion to continue the hearing of the cause during the pendency of the proceedings in error in the supreme court of this state, referred to in the answer of the Parlin & Orendorff Company. This motion was overruled. Soon afterwards the Standard Implement Company moved for leave to dismiss this cause without prejudice. The court also overruled this motion. Thereupon the cause proceeded to trial before the court with a jury. The court instructed the jury as follows: "Under the pleadings in this case, the Standard Implement Company admits that the questions involved in this action have heretofore been submitted to a jury, a verdict returned, and the court pronounced judgment thereon. This constitutes in law what is known as res adjudicata, and you are instructed to find a verdict for the defendants." The jury returned a verdict against the Standard Implement Company and in favor of the defendant George W. Stevens, as sheriff, and

the Parlin & Orendorff Company, and assessed the value of the property at $1,800. The Standard Implement Company filed its motion for a new trial, which was overruled, and judgment was entered upon the verdict. The Standard Implement Company excepted, and brings the case here.

R. O. Boggess and Overstreet & Denton, for plaintiff in errror. E. Sample and Chester I. Long, for defendants in error.

HORTON, C. J., (after stating the facts.) This action was disposed of in the trial court upon the ground that judgments involving the same property had recently been rendered in two prior actions against the Standard Implement Company and in favor of the Parlin & Orendorff Company in the district court of Barber county. It appears from the record that prior to the trial of this action both of these cases were taken by the Standard Implement Company upon proceedings in error, for review to this court, and were pending in this court at the time of the trial. In each of those cases supersedeas bonds were filed by the Standard Implement Company in the district court of Barber county, and the court of that county entered an order in each case providing that "all the proceedings under and by virtue of said judgment or order as aforesaid be in all things stayed pending the decision of the supreme court in said action, and that said Standard Implement Company lose no rights by reason of said judgment, nor said Parlin & Orendorff Company acquire any rights by reason of said judgment, pending the decision of said action in the supreme court." We think that the motion for continuance made by the Standard Implement Company until the cases pending in this court were finally determined should have been sustained. It was recently said by this court, in Willard v. Ostrander, 50 Kan. —, 32 Pac. Rep. 1092, that "we are unable to find any language used by the legislature which seems to us to imply that a stay of execution has any other force or effect on the judgment than simply to prevent its enforcement by execution. On the contrary, as a determination of the rights of the parties, it remains in full force pending the proceedings here. It is apparent that this construction of the law may work hardship in some cases. The trial courts, however, have ample power, when it is apparent that injustice may be done, to grant continuances until a case pending in this court, sought to be used as a bar or estoppel, is determined; and it would seem to us that, where an appeal to this court has been taken in good faith, and a sufficient bond to stay execution has been given, if the introduction of the judgment in another case would have the effect, as in the case now before us, to permit the party holding the judgment, through the medium of another action, to collect that judgment, that the trial court should always, on the proper showing being made, continue

the trial until after the case pending here is determined. Only in this way can full justice be done." The judgment will be reversed, and cause remanded for further proceedings. All the justices concurring.

(51 Kan. 246)

STATE ex rel. COUNTY ATTORNEY OF
BARBER COUNTY v. PIERCE.
(Supreme Court of Kansas. June 10, 1893.)
APPEAL-REVIEWING QUESTIONS OF FACT.

In the absence of a bill of exceptions containing the evidence, the appellate court cannot review questions of fact.

On motion for rehearing. Motion denied. For former report, see 32 Pac. Rep. 924.

Chester I. Long, R. A. Cameron, E. Sample, and T. S. Brown, for appellant. C. W. Ellis, Ben Carr, Lyman W. De Geer, and John T. Little, Atty. Gen., for appellee.

PER CURIAM. There is filed on behalf of the appellant an elaborate brief covering all the matters considered by the court on the first hearing. We are satisfied with the conclusions before reached, as expressed in the opinion. It is strenuously contended, however, by counsel for appellant, both in the brief and on oral argument, that it does not appear that Barber county was damaged to the amount of $1,738.58, the face value of the scrip issued in violation of the injunction, or in any other sum, and that the district judge erred in ordering Pierce to make restitution to the county of that sum of money, or of the scrip, and that the county had an ample defense against the scrip, in whose hands soever it might be, if it was illegally issued, because such scrip, or, as it would be more properly termed, the county warrant, is not negotiable. The question counsel seeks to raise is not presented by the record, as there is no bill of exceptions, containing the evidence, offered on the hearing, which we can consider. The order complained of was made by the district judge at chambers on the 12th day of July, 1892. No time was asked or given the defendant to prepare a bill of exceptions. On the 15th of July a notice of appeal was served, and on the 16th of July the bill of exceptions contained in the record was presented to the district judge, and signed by him. In the case of State v. Burrows, 33 Kan. 10, 5 Pac. Rep. 449, it was held that "an objection to the decision of a judge at chambers should be reduced to writing, and presented to the judge, for his allowance, at the conclusion of the hearing when the decision was made, unless application is made for additional time, which may be given, but never to exceed ten days. If no time is asked or given at the conclusion of the hearing before such judge, the parties are concluded, and are not thereafter entitled to present for allowance, and have settled and signed, a bill of excep

tions." In the absence of a bill of exceptions containing the testimony, we cannot say that the court erred in fixing the value of the scrip at its face. It may have been presented to the county treasurer, and paid. In various ways it could happen that the county might fail to secure the benefit of any defense it might have against an outstanding warrant.

The rehearing will be denied.

(51 Kan. 529)

CITY OF KINSLEY v. SIRE. (Supreme Court of Kansas. June 10, 1893.) CRIMINAL LAW-APPEAL--RECORD.

Upon an appeal to the supreme court taken by the state or city from a judgment of the district court quashing an indictment, information, or complaint, a full and complete transcript of all the proceedings in the district court is essential.

(Syllabus by the Court.)

Appeal from district court, Edwards county; S. W. Vandivert, Judge.

Prosecution against August Sire for a violation of a city ordinance. The complaint was quashed, and the state appealed. Defendant now moves to dismiss the appeal. Motion granted.

W. H. Robb, for the State. Fred Dumont Smith, for appellee.

JOHNSTON, J. August Sire was prosecuted by the city of Kinsley for talking loudly on the public streets, and for publicly using profane and obscene language, in violation of a city ordinance. In the district court the sufficiency of the charge was questioned, and a motion to quash the complaint was sustained. Although leave was given to amend the complaint, no amendment was made, but the state has attempted to appeal from the ruling of the court quashing the complaint. The defendant calls our attention to a defect in the record, and insists upon a dismissal of the appeal. The certificate attached to the record fails to show that it is a complete transcript of the proceedings in the district court. This is a fatal omission. The statute provides that appeals may be taken by the state in three cases: First, upon a judgment quashing or setting aside an indictment or information; second, upon an order of the court arresting the judgment; and, third, upon a question reserved by the state. Crim. Code, § 283. Upon the third ground of appeal a complete transcript of all the proceedings is not re quired. This is the only case providing for an abridgement of the record, and the pres ent appeal does not apply to this class. Crim. Code, § 288. It was taken upon the first ground authorizing an appeal by the state, and nothing short of a full and true transcript of all the proceedings is sufficient. The appeal must therefore be dismissed. All the justices concurring.

(9 Útah, 123)

STIMPSON v. UNION PAC. RY. CO. (Supreme Court of Utah. June 23, 1893.) STOCK KILLING-FAILURE TO FENCE RAILROAD

TRACK-LANDS UNDER CULTIVATION.

Act March 13, 1890, (Sess. Laws 1890, p. 78,) which renders railroad companies liable for injuries to stock unless they fence their roads and construct sufficient cattle guards where such roads pass through lands "owned and settled or occupied by private owners," requires such fencing and construction of guards where the land in the vicinity of the place where a horse is killed is settled upon, owned, and occupied by farmers, and forms a portion of tracts which are under cultivation, though not itself cultivated.

Appeal from district court, Weber county; James A. Miner, Justice.

Action by Robert Stimpson against the Union Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Williams & Van Cott, for appellant. Painter & Murphy, for respondent.

BARTCH, J. This action was brought by the respondent to recover the value of a horse which was, killed by the appellant's train on its railway track. The jury returned a verdict in favor of the respondent for the sum of $132.50. The appeal to this court is taken from an order denying a motion for a new trial.

The contention of the appellant herein is that the evidence is insufficient to justify the verdict, and that there was no evidence to show that, at the place where the horse was killed, the land was owned and settled or occupied by private owners. The law of this territory which applies to this class of cases is found in the act approved March 13, 1890, (Sess. Laws 1890, p. 78,) which reads as follows: "Each and every railway or railroad corporation operating a railroad within this territory is hereby required to erect within ninety days after the approval of this act, and thereafter maintain, a good and lawful fence on each side of such railroad where such railroad passes through lands owned and settled or occupied by private owners, with good and sufficient cattle guards at all street or road crossings, to prevent live stock from getting upon such railroad; and any such corporation failing to build and maintain fences and cattle guards as aforesaid shall be liable to the full value of all damages sustained by the owner or owners of any live stock killed or injured by the engine or cars of such corporation, with interest on such damages from the date of the killing or injuring of such live stock." This law requires the railroad companies to fence their lines where the same shall pass through lands that are "owned and settled or occupied by private owners," to construct "good and sufficient cattle guards at all street and road crossings, and thereafter to maintain such fences and guards." If they fail to do this, v.33P.no.7-24

they are liable for all damages to stock occasioned because of such neglect. It will be seen that such fencing and constructing of guards are limited to places where the land along the lines of railroads is owned and settled or occupied, and appellant contends that as to the ownership, etc., of the land the proof in this case is insufficient to entitle the respondent to recover. On the trial it was admitted that the defendant killed the horse, that when killed it was worth $125, that plaintiff owned it, and that the railroad was not fenced. It appears from the evidence that the land in the vicinity of the place where the accident occurred was settled upon, owned, and occupied by farmers, and while, in the immediate vicinity, it was not under actual cultivation, yet it is shown to have formed portions of the tracts which were under cultivation. Some cultivated land appears to have been within a quarter of a mile of the place where the accident occurred, although there is some conflict in the evidence on this point. After an examination of the evidence as disclosed by the record, we are of the opinion that the locality in question was such that it became the duty of the defendant to fence its track as provided by the statute.

The judgment is affirmed.

1. The decision of the trial court on the challenge of a juror for cause is not ground for reversal, unless manifestly erroneous, and prejudicial to the party complaining of it.

2. Where a party suing as administrator produces evidence of the death of his intestate, and of the issuance of letters of administration, as alleged, and no evidence is offered to the contrary, the court is justified in considering the representative capacity of plaintiff as an established fact.

3. The averment of a promise by defendant, under his hand, is equivalent to an aver ment of a promise in writing signed by defendant. Insufficient averments in a complaint may be aided by the averments of the answer. In a suit upon a promissory note it is not nec essary to aver a consideration for the promise of the maker.

4. A note made payable with interest, without specifying the rate, or the time from which the interest is to be computed, carries interest from the date of its execution at the legal rate fixed by law; and a note containing the words, "with the interest at the rate of one and one quarter," but nothing more to indicate the rate, is governed by the same rule.

5. A witness otherwise competent, having first given evidence showing that he has had reasonable means and opportunity of becoming acquainted with the signature of an individual, may give his opinion whether the signature to a paper offered in evidence is or is not the genuine signature of such individual.