the court properly sustained the objection thereto.

The third specification of error relates to certain remarks of the court and counsel for the defendant in error made during the trial of the cause. Under this head, counsel in his brief refers to several remarks made by the court and one statement made by the counsel for the defendant in error. With the exception of one remark made by the court, no objection appears in the record, and no exception was taken to the language used. The rule is well settled that an objection and exception must be taken and allowed to remarks of court or counsel in the trial of a cause in order to avail a party in the review of a case. The remark of the court to which exception was taken was as follows: "You are trying Mr. Smyth as though he was a common, ordinary thief, trying to get away with somebody's property." This remark was entirely uncalled for, and ought not to have been made by the court; but we are convinced from a careful review of the record that it could not have prejudiced the jury in any manner, and that the verdict would have been the same had the remark not been made.

The specifications of error from the fourth to the tenth, inclusive, refer to the giving and the refusing of a number of instructions. We do not consider it necessary to review each and all of these errors separately, nor to here present the instructions, given and refused, in full. Some of the instructions which were refused were given, in substance, in the general charge by the court; while others, as presented, do not state the law applicable under the circumstances and evidence in this case. This case was tried by the plaintiff in error upon the theory that the transfer between Smyth and the Carltons was not in good faith, and that no legal possession of the goods had been given to Smyth prior to the levy of the execution. These questions were all properly presented by the general charge of the court, and the jury was specifically advised as to what constituted a delivery of possession.

So far as the bona fides of the transfer is concerned, under the evidence in this case, we think the jury made the proper finding, for the record, in our opinion, fails to disclose anything but a straight business transaction. It is true that, at the time the bill of sale was made, the parties thereto were aware that a judgment would shortly be ordered against the Carltons, and that the

transfer was made with a view of protecting Mr. Smyth; but, under our statute, this is no evidence of bad faith, for a person may prefer any creditor, and as long as that creditor is an honest one, and the transfer is entered into in good faith, it cannot be successfully assailed.

Under the eleventh specification of error, which is the overruling of the motion for a new trial, besides recapitulating the points already discussed, special attention is drawn to the fourth and fifth grounds of said motion, which were to the effect that the amount recovered by the plaintiff was too large, and that the verdict was not sustained by the evidence, and was contrary to law. Counsel for plaintiff in error contends that the record does not show any evidence sustaining the amount which the jury returned as the value of the goods in question. From a careful review of the record, we are unable to sustain the position of counsel, and are of the opinion that the jury had before them sufficient evidence to sustain the verdict. Attached to the petition in this case was an itemized statement of the goods which it was claimed had been taken by the sheriff. One of the witnesses was about to testify as to the value of each separate item named in the schedule, when the counsel for the plaintiff in error waived the reading of each separate article, and afterwards this same witness testified that Exhibit A (being the schedule attached to the pleadings) showed, as it stood corrected by him, the fair market value of the goods at Wichita on the day of the levy in question. Statements, admissions, and allegations in pleadings are always in evidence, for all purposes of the trial of the action, and are used for the purposes of the trial before the court and jury; and the statements contained in Schedule A of the petition in this case, taken in connection with the evidence of the witness above referred to, which directly refer to the figures contained in the schedule, gave to the jury the estimate of the plaintiff as to the value of the goods in question, The whole record in this case shows that this conclusion is correct, and it was for the jury to determine, from the conflicting statements made by the different witnesses upon the question of value, what the real value was.

Perceiving no error prejudicial to the rights of the plaintiff in error, the judgment of the court of common pleas of Sedgwick county is affirmed. All the judges concurring.

(3 Kan. App. 602)

MAYER v. SPARKS et al.

(Court of Appeals of Kansas, Southern Department, C. D. May 4, 1896.) SATISFACTION OF JUDGMENT-POWER OF COURTAUTHORITY OF ATTORNEY-CONTRACT.

1. It is error for the court to order the satisfaction of a judgment in a cause, upon motion filed therein, where the facts claimed to justify such satisfaction arise outside of the court, and are disputed, and where parties are interested in the judgment who were not parties to the original action, and who are not served with notice, and do not appear upon the hearing of said motion. In such a case the only proper and adequate remedy for the satisfaction of a judgment is by a separate action in which all who are interested are made parties.

2. An attorney at law has no authority, by virtue of his general employment as an attorney, and without special authority from his principal, to assign a judgment belonging to such principal.

3. Where the minds of the parties never meet upon the same thing, there can be no valid contract.

(Syllabus by the Court.)

Error from district court, Barber county; G. W. McKay, Judge.

Action by Christian Mayer against John Sparks, Ratliff Sparks, and others. Judgment for plaintiff. From an order satisfying the judgment, Christian Mayer brings error. Reversed.

Thornton W. Sargent, for plaintif in error. G. M. Martin, for defendant in error.

COLE, J. Christian Mayer brought an action in the district court of Barber county, Kan., against Daniel M. Byroad and wife, John Sparks and Ratliff Sparks, and others upon a certain note and mortgage, and in February of 1893 recovered a personal judgment against Byroad and wife, as the makers of the note and mortgage, and against John Sparks and Ratliff Sparks, who had purchased the land mortgaged, and agreed to pay said mortgage. He also obtained a decree of foreclosure of the land, which was afterwards sold, and, after the proceeds of the sale had been properly credited, there remained a deficiency judgment against John Sparks and Ratliff Sparks for $735.13. The premises sold under the mortgage were purchased at said sale by Albert Bromer. In December of 1893 an execution was issued against the property of Sparks & Sparks for this deficiency judgment, which execution was returned for want of time in which to sell, and in February, 1894, an alias execution was issued for the same purpose. While this execution was outstanding, and in March of 1894, John S. Sparks and Ratliff Sparks filed a motion in the district court of Barber county asking for an order for the recalling of such execution, and assigned various grounds therefor, and also asked that the judgment of Christian Mayer against John S. Sparks and Ratliff Sparks

be adjudged fully satisfied. Upon the hearing of said motion the court ordered the satisfaction of said judgment, and from this order Christian Mayer brings the question here for review.

The first error complained of is that the court had no right to order a satisfaction of the judgment upon motion in this case. We consider this position as well taken. The record discloses that some kind of an assignment had been made of this judgment to Cook & Palmer, and also an assignment by Cook & Palmer to one Atkinson. No notice was served upon Atkinson or Mayer of the hearing of this motion, and, while certain attorneys appeared upon behalf of Mayer, the record discloses that they stated at the time of the hearing that they appeared without authority from Mayer, and only because no time had been given to communicate with him, and for the reason that said attorneys had represented him in procuring said judgment. It is true that, as between a judgment debtor and creditor, the court will entertain a motion to satisfy a judgment where the facts are not controverted, and the proceedings are of record in the court hearing the motion. But in this case Mayer, who was interested, had no notice of the motion, and no one appeared by authority for him. Atkinson, whom the evidence disclosed had some kind of an assignment of the judgment, had no notice of the motion, and had not appeared in any manner. Under such circumstances, where parties who were not interested in the original cause of action claim an interest in the judgment, the court ought not to hear and determine a motion for the satisfaction of said judgment in the absence of the interested parties, and without notice to them. The only adequate and proper remedy in such a case is by a separate action, where all parties claiming an interest are brought before the court. Freem. Judgm. (4th Ed.) § 480; McCutcheon v. Allen, 96 Pa. St. 319.

The second point raised by the plaintiff in error is that the court erred in admitting evidence of the alleged assignment of the judg ment from Christian Mayer to Cook & Palmer. It appears that after the alias execution in the case of Mayer v. Byroad, Sparks et al. was issued the firm of Cook & Palmer entered into certain negotiations with T. A. Noftzgar, who was the attorney of Christian. Mayer in the foreclosure case, for the purchase of the land sold under the foreclosure, and the satisfaction of the deficiency judg ment remaining against Sparks. For the purpose of carrying out these negotiations, Noftzgar telegraphed to Bromer, who was the owner of the land, a certain proposition. The message was made as short as possible, and, while it was intended by Cook & Palmer and Noftzgar to convey to Bromer the idea that a sale of the land was also to include a satisfaction of the Mayer judgment, it was not

of the proposition, as he understood it, by Bromer, was the only authority which Noftzgar had for the assignment to Cook & Palmer, outside of the authority he might possess as the attorney of Mayer in the foreclosure case, and this fact was known to Cook & Palmer at the time. The record further shows that it was agreed between Noftzgar and Cook & Palmer that the sale should not be considered complete until Bromer had seen the papers and ratified the deal. When the papers were sent to Bromer, he immediately, upon receiving a full understanding of the matter, refused to consent to the sale as proposed, and Noftzgar thereupon offered to return the money and notes which he had received from Cook & Palmer. An attorney has no power, by virtue of his general employment, to assign a judgment belonging to his principal. In this case there is but one conclusion to be drawn from the evidence, and that is that Noftzgar never received any special authority from Mayer to assign said judgment. This being the case, the assignment made by Noftzgar had no validity, and was improperly received in evidence. Freem. Judgm. § 430; Jones v. Inness, 32 Kan. 177, 4 Pac. 95.

The next assignment of error is that, even admitting the authority of Noftzgar to make the assignment in question, he would then simply be acting as an agent of Bromer, and could only bind him as far as he followed the direction of his principal. We consider this question of but little importance in this case, for there is no testimony which connects Bromer, the owner of the land, with Mayer, the owner of the judgment, in such a manner as would authorize either Bromer or his attorney to attempt any release of the judgment in question. It is, however, plain from the record that the mind of Bromer upon one hand, and the minds of Cook & Palmer upon the other, did not meet upon the proposition, and therefore no valid contract was entered into between them. We are clearly of the opinion that for each and all of the reasons above set forth the district court committed error in ordering a recall of the execution and the satisfaction of the judgment in question. The judgment is reversed, and this cause remanded, with instructions to the district court of Barber county to deny the motion. All the judges concurring.

(3 Kan. App. 612)

FULTZ v. NEAL.

(Court of Appeals of Kansas, Southern Department, C. D. May 20, 1896.)

APPEALABLE Order.

An order of a justice of the peace discharging a garnishee is not appealable. (Syllabus by the Court.)

Error from district court, Sumner county; James A. Ray, Judge.

Action by George R. Fultz against F. P. Neal. Demurrer to the complaint sustained, and plaintiff brings error. Affirmed.

error.

W. W. Schwinn, for plaintiff in James T. Herrick, for defendant in error.

COLE, J. Plaintiff in error filed his petition in the district court of Sumner county, alleging, in substance, that the firm of Fultz & Millard brought an action before a justice of the peace in said county, and at the same time procured a garnishment summons to issue in said action; that both the defendant and the garnishee were served, and that answer was made showing that the garnishee was indebted to the principal defendant in a sum in excess of the amount of the plaintiffs' claim; that afterwards such proceedings were had before the justice of the peace that judgment was rendered against the plaintiffs for costs, and said garnishee was discharged, and that thereupon within the time prescribed by statute an appeal was taken by the plaintiffs, whereby they appealed from the judgment rendered against them for costs by the justice of the peace, and from the order of said justice discharging the garnishee, and said appeal was perfected, and said cause removed to the district court of Sumner county, Kan.; that afterwards the cause came on for trial, and plaintiffs obtained judgment against the principal defendant for $140.50, with interest and costs; that an order was made by the district court directing the garnishee to pay into court the amount of said judgment and costs, which judgment and order are unappealed from and unreversed, and of full force and effect. The petition further alleges that at the time of the service of the garnishment summons the garnishee was a banking corporation, and that the defendant in this action was the cashier of said bank; that afterwards said bank ceased to have any organization, and ceased to exercise any of its functions as a banking corporation; that at the time such bank was served with garnishment summons it had a large amount of property belonging to the principal defendant in the original case. The petition further alleges that the defendant in this case was at the time a large stockholder of this bank, and that after the service of the garnishment summons he, with other persons, divided the property of said bank, and that this defendant received of said property more than $10,000, which he retains, and that by said acts the bank has been prevented from paying into court the money ordered to be paid in by the district court of Sumner county; that all the officers of said bank upon whom service could be had have removed from the state. The petition then alleges that the firm of Fultz & Millard have sold and transferred the judgment in question to the plaintiff in this case; that this plaintiff has demanded of the defendant in this case payment of the

judgment and costs, which demand has been refused, and the petition prays judgment | against the defendant, F. P. Neal, for the amount due to plaintiff. To this petition the defendant, F. P. Neal, filed his demurrer, setting forth as grounds therefor: First, that the petition failed to state facts sufficient to constitute a cause of action against the defendant in favor of the plaintiff; and, second, that the petition shows affirmatively that the said plaintiff ought not to recover from this defendant; and, third, that the petition shows that the garnishment proceedings against the bank in the action of Fultz & Millard before the justice of the peace were dismissed, and said garnishee discharged by said justice of the peace long before the bringing of this action; and that such order of said justice of the peace dismissing such garnishee proceedings and discharging said garnishee has never been vacated or appealed from, but remains in full force and effect. This demurrer was sustained, and the plaintiff elected to stand upon his petition, and brings the case here for review.

While the demurrer in this case is in three separate paragraphs, it may be said to contain but the one real ground, namely, that the petition of the plaintiff fails to state a cause of action, and the ground which seems to have been urged and which is here argued by counsel for both sides is that there is no provision of the statute for an appeal from a justice of the peace discharging a garnishee. It is true, the defendant in error, in his brief, claimed there were certain techn.cal defects in the language of the pleader who drew the petition, but they are of minor importance, and, in our opinion, are not such as would sustain the ruling of the court upon the demurrer in this case. There can be no doubt, however, that the real point here discussed is settled by the cases of Roll v. Murray, 35 Kan. 171, 10 Pac. 472; Becker v. Steele, 41 Kan. 173, 21 Pac. 169. In the latter case Horton, C. J., reviews the different cases theretofore passed upon by the supreme court, closing with the case of Roll v. Murray, supra, in the following language: "In Roll v. Murray, 35 Kan. 171, 10 Pac. 472, the action was commenced before a justice of the peace, and an order of attachment obtained. Subsequently, upon the motion of the defendant, the attachment was discharged. Afterwards a judgment was rendered in favor of the plaintiff and against the defendant. Within the ten days the plaintiff filed an appeal bond, attempting to take an appeal both from the order of the justice discharging the attachment and also from the judgment of the justice upon the merits. The appeal bond was sufficient for both these purposes, if an appeal from an order of the justice of the peace discharging an attachment was allowable. This court held that the appeal did not give

*

to the district court power to review and retry the attachment proceedings instituted before the justice of the peace. Mr. Justice Valentine, in delivering the opinion, said, among other things: "There is no provision in the statutes for taking an appeal from the order of the justice of the peace in any provisional remedy or in any ancillary proceeding, and no provision anywhere for retrying in the district court, upon an appeal from a justice of the peace, any question that pertains only to some provisional remedy or to some ancillary proceeding. The appeal is from a final judgment only, and from a judgment on the merits only, and the trial afterward to be had on the appeal is only upon the merits. *** In our opinion, attachment proceedings cannot be taken to the district court at all on appeal.'" It is contended by counsel for plaintiff in error that this language of the chief justice is dictum merely, but it will be noted that in the case of Roll v. Murray, from which he quotes, the doctrine here referred to is laid down in the syllabus of the case, and, while Valentine, J., who delivered the opinion in Roll v. Murray, dissents from the opinion in Becker v. Steele, and thereby appears to modify the language used in the former case, yet the court, after a review of all the cases bearing upon the point, hold to the doctrine that attachment proceedings cannot be taken to the district court at all on appeal. From the fact that the attention of the court in Becker v. Steele was specially directed to the distinction sought to be drawn by Valentine, J., we must conclude that the court intended a full application of the doctrine, and we can only say, in the language of Horton, C. J., in the last-named case: "If the construction given to the statute works injustice, the remedy is with the legislature."

It is further argued by counsel for the plaintiff in error that the doctrine which he here contends for is the same as is enunciated in Washer v. Campbell, 40 Kan. 398, 19 Pac. 858; Id., 40 Kan. 747, 21 Pac. 671. We think the cases are not at all parallel. That case was an action on a bond given for the purpose of procuring the release of proceedings in garnishment, and by the giving of said bond the garnishees were released. It does not present the question of an appeal from an order releasing a garnishee, nor is that question discussed in the opinion in the case.

We do not think it necessary to consider the question as to whether the other facts stated in the petition would have been sufficient to charge the defendant, Neal, for the reason that the appeal from the judgment of the justice of the peace did not carry with it the garnishment proceedings, and therefore the demurrer was properly sustained, and the judgment of the district court is affirmed. All the judges concurring.

113 Cal. 221) BLOOD v. LA SERENA LAND & WATER CO. (No. 19,510.)

(Supreme Court of California. June 6, 1896.) CORPORATIONS-SEAL-UNAUTHORIZED ACT OF OFFICERS RATIFICATION.

1. Where a seal which had not been formally adopted by a corporation was used for the first time in the execution of instruments afterwards in question, the finding that it had become the common seal of the corporation by use is sustained by a showing that it had afterwards been employed as the seal of the corporation in all transactions requiring the impress of a seal.

2. That a resolution was passed at the preliminary meeting of stockholders, before the organization of the board of directors, is insuflicient to support a finding that an instrument thereby attempted to be authorized was duly and regularly executed.

3. Where the execution of a note and mortgage could have been authorized only by a resolution of the board of directors, equivalent to an authority in writing, within Civ. Code, § 2309, a corporation can ratify an unauthorized execution by its president and secretary only in the manner that would have been necessary to confer original authority for the act ratified, as provided by section 2310, and not by an exercise of ownership over the property for the price of which the note and mortgage were executed. McFarland, J., dissenting.

In bank. Appeal from superior court, Santa Barbara county; W. B. Cope, Judge.

Action by James A. Blood against La Serena Land & Water Company to foreclose a mortgage. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Thos. McNulta and Chapman & Hendrick, for appellant. R. B. Canfield and J. W. Taggart, for respondent.

HENSHAW, J. Appeals from the judgment and from the order denying a new trial. The complaint is a pleading in the usual form to foreclose a mortgage alleged to have been executed by defendant corporation to plaintiff. Defendant answered, denying the execution of the instruments, and likewise filed a cross complaint, a general demurrer to which was sustained.

Upon the trial the following facts were disclosed: One James A. Blood was the owner of a ranch containing about 350 acres. In the year 1887 he authorized his nephew, James A. Blood, Jr., a real-estate broker, to make a sale of this ranch at the price of $105,000, agreeing to pay him a commission of $5,000 for effecting the sale. Blood, Jr., proceeded as a "promoter" to organize a corporation for the purpose of purchasing this land, platting, subdividing, and selling it. Under these circumstances, the La Serena Land & Water Company was organized as a corporation. After it had filed its articles of incorporation, but before any meeting of its directors was held, the subscribers to the capital stock of the corporation, of whom Blood, Jr., was one, in meeting, agreed upon the purchase of the Blood ranch, and to that

end authorized the payment by Blood, Jr., to plaintiff of one-half of the purchase price of the ranch. Upon receipt of this sum, plaintiff was to execute to the corporation his deed for the land, and, in return, the corporation was to make and deliver to him its note and mortgage for the remaining one-half of the purchase price. Thereafter the directors met and organized. They made no formal adoption of a corporate seal, but seem to have instructed their president to procure such a seal. They adopted no resolution looking to or touching upon the purchase of the Blood ranch, or the execution of the note and mortgage. Payment to plaintiff of the one-half of the purchase price was, however, made by Blood, Jr., pursuant to the instructions which he had received at the stockholders' meeting, which payment consisted of about $40,000 in gold coin, and stock of the corporation of the estimated value of $12,500. Upon receipt of this, plaintiff executed to the corporation his deed for the land, and, in return, received a note and mortgage for the sum of $52,500. Both the note and the mortgage were executed in the name of the corporation by James L. Barker, its president, and James A. Blood, Jr., its secretary. Barker and Blood were, in fact, respectively, president and secretary of the corporation. The note and mortgage also bore impress of what purported to be the common seal of the corporation. Blood, Jr., as one of the original subscribers, received some shares of the stock, and other shares were made over to him by Blood, Sr., representing the commission of $5,000 which he was to receive for effecting the sale. It appears that the stockholders of the corporation knew that the purchase price of the land was to be $105,000, and were satisfied to make the purchase for that sum, and upon the indicated terms. It is not so clear that they knew that their associate, Blood, Jr., was to have received a commission from Blood, Sr., for effecting the sale. Blood, Jr., by his own testimony, acted for the incorporators in the matter of the purchase. How far he acted for them does not clearly appear. It also is uncontradicted that he acted for the seller, Blood, Sr. The corporation entered upon and took possession of the land, exercising general acts of dominion and ownership over it. It was surveyed and platted. Orchards were cut down; springs developed; certain portions of it sold; and deeds for those portions executed by the corporation in its own name, Blood, Sr., joining therein. Interest was paid upon the mortgage for a time, and, by a later convention between the corporation and the mortgagee, the produce of the ranch was afterwards taken in lieu of interest. Finally, the corporation having failed to meet the terms of the contract, this action was instituted. The court found that the note and mortgage were duly executed by the corporation. It also found that the contract of note and