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The appellant Orr obtained the writ, served | ployed in the case he placed his private it upon them, and must be deemed to have papers for use therein in an envelope, and intended a compliance with its terms on their indorsed the same with the title of the se part in some form. If they have done so, tion, but in doing so, through inadvertence and have suffered damage, it is not for him and mistake, wrote the plaintiff's Dame to say that they misconceived the terms therein as Emina Butler, and, in preparing which he caused to be incorporated therein. the notice of appeal and other papers in Webb v. Laird, (Vt.) 20 Atl. Rep. 599. His which the mistake as to plaintiff's name of acquiescence in their obedience must be ac- curred, he wrote the same from the utle of cepted as his own construction of the man. the cause as the same appeared upon said ner in which he intended it to be obeyel, envelope, and never discovered the mistake and his bondsmen are liable upon their un- until he was preparing the transcript to be dertaking for the damages consequent there used on appeal herein. Section 1046. Coule on. The judgment against the appellant Ort Civil Proc., provides that "an affidavit, no is reversed, and the judgment against the ap- tice, or other paper, without the title of the pellants Bohnert and Walbridge, and the or- action or proceeding, in which it is made, or der denying a new trial, are affirmed.
with a defective title, is as valid and effectual
for any purpose as if duly entitled, if it intelWe concur: BEATTY, C. J.; GAROUTTE, J. ligently refer to such action or proceeding."
The notice in question is duly entitled as to the court, and the department thereof in
which the action was tried, and intelligibly BUTLER . ASHWORTH et al. (No.
refers to the number of the cause, and to the 15,396.)
judgment and order denying the defendant's (Supreme Court of California. Nov. 13, 1893.)
motion for a new trial. In preparing the unAPPEAL-NOTICE-BoxD.
dertaking on appeal, counsel for appellant 1. Under Code Civil Proc. 8 1046, declar
maue the same mistake, but as the undertak. ing a notice without the title of the action or ing names the court and department thereof, proceeding in which it is made, or with a de-gives the number of the cause, and accurately fective title, as valid and effectual as if duly describes the judgment and order den ving entitled, if it intelligently refers to the action or proceeding, a notice of appeal, in which a mis- the motion for a new trial, we think, if the take is made in the first name of respondent defect is a material one, the case comes within the title of the action, is sufficient where it is duly entitled as to the court and the depart
in the provisions of section 954, Code Civil ment in which the action was tried, and intel- Proc., which authorizes the filing of a new ligently refers to the number of the cause, and undertaking, approved by a justice of the suto the judgment and order appealed from. 2. Where the undertaking on appeal Dames
preme court. A request to file such under the court, and the department thereof, in which
taking was made at the hearing, and granted. the action was tried, gives the number of the The motion to strike the transcript from the cause, and accurately describes the judgment files is denied. The motion to dismiss the and order appealed from, but contains a mistake in the first name of respondent in the
appeal is also denied, an undertaking aptitle of the cause, a justice of the supreme proved by the chief justice of this court barcourt may, under Code Civil Proc. $ 954, allow ing been filed herein. a new undertaking to be filed.
Department 1. Appeal from superior court, We concur: HARRISON, J.; DE HA. city and county of San Francisco; O. W. VEN, J. Slack, Judge.
Action by Hannah Butler against Thomas Ashworth and others. From a judgment for plaintiff, and from an order denying a mo
STATE v. DECKER, tion for a new trial, defendants appeal. Re
(Supreme Court of Kansas. Nov. 11, 1893.) spondent moved to strike the transcript from the files and to dismiss the appeal. Motions
REMOVING BUILDING FROM MORTGAGED PROPERTI
INFORMATION EssexTIAL ALLEGATIONS denied.
CRIMINAL PRACTICE-MOTION FOR NEW TRIAL
SufficIENCY OF INFORMATION. Humphrey & Welch, (W. C. Burnette, of
1. In a prosecution under paragraph 8900, counsel,) for appellants. Geo. B. Merrill,
Gen. St. 1889, making it unlawful to remove for respondent.
buildings from real property, upon which there
is an unsatisfied mortgage, duly recorded, witbPATERSON, J. Respondent has moved to
out first obtaining from the mortgagee, his
agent or assign, written permission for such dismiss the appeal herein, and to strike
removal, it is necessary to allege in the indict. from the files the transcript on appeal. In ment or information that the removal was preparing his notice of appeal, counsel for made without permission from the mortgagee,
his agent or assign, and an information lacking the appellant entitled the cause "Emma
this averment is insufficient to sustain & conButler vs. Thomas Ashworth et al.," and it
viction. is claimed that this invalidates the appeal. 2. Where what is termed a motion to set An affidavit has been filed in which coun
aside a verdict and to grant a new trial con
tains a ground distinctly challenging the suffisel for appellant states that the mistake was
ciency of the information, it will be treated as caused by the fact that when he was em. a motion in arrest of judgment, which requires
a determination of the sufficiency of the aver- the court, and to require our consideration of ments contained in the information.
the sufficiency of the information. State v. (Syllabus by the Court.)
Jessup, 42 Kan. 422, 22 Pac. Rep. 627. TreatAppeal from district court, Stafford county; ing the motion, then, as one in arrest of J. H. Baily, Judge.
judgment, we are compelled to hold that the E. S. Decker was convicted of unlawfully information is insufficient to sustain the conremoving buildings from mortgaged property, viction, and hence the judgment will be re and appeals. Reversed.
versed, and the cause remanded for further Campbell & Taylor, for appellant. John T. proceedings. All the justices concurring. Little, Atty. Gén., and 0. O. Jennings, for the State.
JOHNSTON, J. This is a prosecution for
HUNTER v. CROSS. the unlawful removal of buildings from mort- (Supreme Court of Kansas. Nov. 11, 1893.) gaged real estate without permission. Gen. APPEAL-DISMISSAL-SERVICE OF CASE. St. 1889, par. 3900. There was a conviction,
Where the only thing in the record to following which the defendant was adjudged
show service of the "case' on defendant in
error is an indorsement thereon that "the foreto pay a fine of $100, and be imprisoned in
going is 0. K.," signed by his attorney, and the county jail for a period of 60 days. dated after the expiration of the time given by The principal question presented upon the the court in which to make a case, the writ of
error will be dismissed. appeal arises upon the allegations of the information. It charges the removal of a
Error from district court, Wilson county; barn from a certain lot in the city of St.
L. Stillwell, Judge. John, Stafford county, upon wbich there was
Action by Marion Cross against Robert an unsatisfied mortgage of record, which is
Hunter. There was a judgment for plaindescribed; that the same remains unsatis
til, and defendant brings error. Dismissed. fied; and then follows the averment "that Geo. P. Uhl, for plaintiff in error. C. S. said barn was removed from said lot 8 by the Reed, for defendant in error. defendant, E. S. Decker, without first obtaining from the mortgagee or his agent PER CURIAM. The record fails to show written permission for the removal of said any service of the case which is attached to barn," etc. The information contained no the petition in error on the defendant in erallegation that permission for the removal ror, or his counsel, and for that reason obhad not been obtained from the assign of jection is made to its consideration. Op the mortgagee. This was an essential aver- February 24, 1890, defendant's motion for a ment. Under the statute, the act of re- new trial was overruled, and he was given moval becomes criminal only when it is 60 days to make a case. The only thing in made without written permission "from the the record tending to show service on the mortgagee, his agent or assign." In this plaintiff is an indorsement as follows: “The case it appears from the foreclosure proceed- foregoing is 0. K. May 27, 1890. T. J. Hudings that the mortgage and note which it son.” This, it will be perceived, was long secures have actually been transferred by after the expiration of the 60 days, and coun. the mortgagee to another, and, if Decker sel had no power to extend the time allowed obtained permission to remove the barn from by the court. No extension was granted by the person to whom they were transferred, the judge at any time. Insurance Co. v. no offense was committed. The want of per- Koons, 26 Kan. 215; Dunn v. Travis, 45 Kan. mission being an essential element of the 541, 26 Pao Rep. 247. The case will be discrime, it was necessary for the state to al- missed. lege it. In charging the jury, the trial court states that the prosecution must prove the want of permission from the mortgagee, his agent or assign, but it did not require it to
MORIARTY et al. v. BOARD OF COM'RS be alleged, and we find no attempt to prove
OF MORRIS COUNTY. a want of permission from the person to
(Supreme Court of Kansas. Nov. 11, 1893.) whom the mortgage was transferred.
LIABILITY OF COUNTY-PRINTING OF TAX LIST. Counsel for the state contend that the ques
Printers who publish a delinquent tax
list, and fail to make and transmit to the countion cannot be raised now, for the reason
ty treasurer the affidavit required by section that the objection was not raised by a mo- 109, c. 107, Gen. St. 1889, cannot recover pay tion to quash, or by a motion in arrest of for such publication from the county. judgment. No motion to quash was filed,
(Syllabus by the Court.) but in the motion for a new trial the suffi- Error from listrict court, Morris county: ciency of the information was distinctly chal- M. B. Nicholson, Judge. lenged. One of the grounds for setting aside Action by Moriarty & Waller against the the verdict was “that the information does board of county commissioners of Morris pot state facts sufficient to constitute an of. county to recover for printing done for defense against the statute.” This averment fendant. There was judgment for defendant, was sufficient to challenge the attention of and plaintiffs bring error. Affirmed.
Maloy & Kelley, for plaintiffs in error. dismissed his appeal, and be brings error. J. K. Owens, for defendant in error.
M. C. Reville, for plaintiff in error. W. ALLEN, J. The plaintiffs in error pre
B. Ham, for defendant in error, sented the board of county commissioners of Morris county a bill of $396.90 for print
ALLEN, J. On the 9th day of July, 1888 ing a delinquent tax list for the year 1889.
Lewis Bigge, as administrator of the esThe board disallowed the claim, because the printer's affidavit had not been filed within
tate of Philip Behrens, deceased, present
ed to the probate court of Rooks county an 14 days after the last publication of the list. Plaintiffs appealed to the district court,
unverified statement, purporting to be an where judgment was entered against them.
account of his administration of said estate Section 108, c. 107, Gen. St. 1889, provides:
No action, however, was taken by the court
thereon. "Every printer who shall publish such list
Afterwards he gave due notice of
final settlement, and on June 3, 1889, pre and notice shall immediately after the last publication thereof, transmit to the treas
sented to said court what purported to be a urer of the proper county an affidavit of such
final account of his administration, containpublication, made by such person to whom
ing a number of items, among which is inthe fact of publication shall be known; and
cluded: “By balance due last (July 9, '88] no printer shall be paid for such publication
settlement, 164.77." In the settlement first who shall fail to transmit such affidavit with
filed is the item, "Cash to balance 1. 102in fourteen days after the last publication.”
77." The hearing of the final settlement It is conceded that the plaintiffs failed to
was continued to July 20, 1889, when the file the affidavit required by the statute
court made an order disallowing certain within 14 days after the last publication.
charges for interest, commission, and sertThe validity and effect of this requirement ices, and allowing in lieu thereof 5 per cent. of the law has been passed upon and upheld
on the amount of money collected. Thereupby this court. Fox V. Cross, 39 Kan. 350,
on the administrator appealed to the dis 18 Pac. Rep. 300; Blanchard v. Hatcher,
trict court. After testimony had been in40 Kan. 350, 20 Pac. Rep. 15. There is no
troduced by both sides, the district court force in the contention that this section of
found that the probate court had not passed the statute gives the board of county com
upon nor finally considered said settlement missioners power to enforce a penalty, and
as a whole, and that the same was still is unconstitutional for that reason. It merely
pending in the probate court undetermined. provides that printers shall not be paid out
and thereupon ordered said appeal to be disof the public funds unless they comply with
missed. There is nothing in the record the law. It is only by virtue of the provi- showing final action by the probate court sions of the law that they obtain any claim
of Rooks county on any other matters inon public funds, and the legislature has seen
cluded in the settlement than the specifie fit to provide that they must comply with
items disallowed, nor does the oral testiall its provisions in order to be entitled to mony offered in the district court show final pay. Plaintiffs would invoke the taxing
action to have been taken by that court. It power for their benefit; yet because of their therefore follows that the district court ruled neglect, within the decisions above cited, the correctly in dismissing the appeal. Though collection of taxes for their benefit is pre- it is not necessary to a decision of the case vented. The judgment is affirmed. All the presented, we remark that the administraJustices concurring.
tor's appeal appears to us without merit. Judgment affirmed. All the justices concur. ring.
Appeal of BIGGE. (Supreme Court of Kansas. Nov. 11, 1893.) ADMINISTRATORS-SETTLEMENT OF ACCOUNT-PRE
MATURE APPEAL. Before an appeal can be taken from the action of the probate court on any part of the final settlement of an administrator, it must appear that the probate court has taken final action on the settlement, and has passed on the whole account presented.
(Syllabus by the Court.)
Error from district court, Rooks county; Charles W. Smith, Judge.
Settlement of the estate of Philip Bebrens, deceased.
Lewis Bigge, administrator, appealed to the district court from an order on final settlement disallowing him charges for commissions, etc. The district court
HUNTER V. HAMILTON. (Supreme Court of Kansas. Nov, 11, 1893.) Rights of PLEDGEE — DispositioS OF PLEDGE –
AGREEMENT OF PARTIES. The remedy of the pledgee, and the disposition to be made of a pledge of commercial paper upon default or other contingency, may be regulated by the agreement of the parties, where such agreement is not fraudulent, or against statute or public policy.
(Syllabus by the Court.)
Error from district court, Wilson county; L. Stillwell, Judge.
Action by Robert Hunter against A. P. Hamilton. There was judgment for defendant, and plaintiff brings error. Affirmed.
Geo. P. Uhl, for plaintiff in error. S. S. thorities cited it is held that without express Kirkpatrick, for defendant in error.
authority the pledgee cannot sell the paper,
but that it is his duty to collect it when it JOHNSTON, J. Robert Hunter brought falls due, apply enough of the proceeds to this action against A. P. Hainilton to recover pay his debt, and then return what remains damages for the alleged wrongful sale and to the pledgor. Trust Co. v. Rigdon, 93 DI. disposition of a pledge. The pledge was a 458; Zimpleman v. Veeder, 99 Ill. 613; Fletchpromissory note for $250, executed by James v. Dickinson, 7 Allen, 23; Roberts v. H. White in favor of D. S. Kennett, who Thompson, 14 Ohio St. 1; Daniel, Neg. Inst. turned it over to Hamilton as collateral se- $ 833. Upon this question there is a diversicurity for the payment of an indebtedness of ty of opinion, some of the authorities holding $52, which Kennett owed Hamilton. Ken- that there are no good reasons to sustain nett sold the vote to the plaintiff, Hunter, such an exception. Potter v. Thompson, 10 subject to the claim of Hamilton for $52, R. I. 1; Brightman v. Reeves, 21 Tex. 70; the payment of which Hunter assumed. Davis v. Funk, 39 Pa. St. 243. We are not White failed to pay the note when it be called upon, however, to determine whether came due, but no steps were taken by Ham- Hamilton had a right to sell the note indeilton to enforce its collection. Hamilton aft- pendent of an agreement, as the issue preerwards sold the pote for the amount of the sented and tried was whether Hunter author. debt which it was given to secure. Hunter ized Hamilton to make the sale, and this claims that when the note became due he issue has been resolved by the jury in favor urged Hamilton to enforce the collection of Hamilton. The authorities are uniform against White, hy suit if necessary, but he upon the question that the disposition to be refused, and subsequently sold it without au- made of a pledge may be regulated by the thority or the taking of any legal steps for contract of the parties. The case was fairits collection. The claim of Hamilton was ly submitted to the jury, and the law governthat White, the maker of the collateral note, ing it correctly stated by the court in its was insolvent; that. Hunter was repeatedly charge. We find no error in the record, and requested to pay the Kennett note, which he hence the judgment of the court will be afhad assumed, and to take up the collateral firmed. All the justices concurring. note, but he declined, saying he would not invest any more money in White's paper, and that Hamilton might sell it to any one who would pay the amount of the Kennett
RICHMOND v. BRUMMIE. debt. He claims that in pursuance of this
(Supreme Court of Kansas. Nov. 11, 1893.) authority he sold it for that sum, and at
SUPREME COURT-APPELLATE JURISDICTIONonce informed Hunter of what he had done,
AMOUNT OF JUDGMENT. who responded that the sale was satisfactory
1. No appeal or proceeding in error can be to him, but that afterwards Hunter tendered had or taken to the supreme court, in any civil the amount of the debt secured, and demand- action, unless the amount or value in controed the collateral note. The claim of Hamil
versy, exclusive of costs, exceeds $100, except
in certain cases specified in the statute. Secton was sanctioned by the jury upon sufficient tion 542a., Civil Code; section 1, c. 245, Sess. testimony, and hence we are relieved from Laws 1889.
2. Where the damages claimed in a civil any further concern as to the findings. If
action by the plaintiff exceed $100, but the there was a wrongful disposition or conver
judgment is for the plaintiff for $100 only, exsion of the note, Hunter was cutitled to the clusive of costs, and the defendant prosecutes difference between the value of the note and in error, the supreme court has not jurisdiction,
for the amount or value in controversy, as to the debt for which it stood as a pledge. He
such defendant, is fixed by the judgment. insists that Hamilton could not sell the
(Syllabus by the Court.) pledge with or without authority from him, and that the only legal course was to col
Error from court of common pleas, Sedglect the note, apply sufficient of the pro
wick county; Jacob M. Balderston, Judge. ceeds to the debt due, and pay over any
Action by Otto Brummie, administrator of residue to him. This position is not tevable.
the estate of Margaret Brummie, deceased, The disposition to be made of a pledge in
against S. W. Richmond. Plaintiff had judg. case of default or in any other contingency
ment, and defendant brings error. Dismiss
ed. may be controlled by the agreement of the parties, providing such agreement be not S. M. Tucker, for plaintiff in error. J. N. fraudulent, is not in contra vention of stat- Haymaker and Holmes & Haymaker, for ute, nor against public policy. In the ab- defendant in error. sence of an agreement as to the remedy to be pursued, pledgee may ordinarily upon de- HORTON, C. J. Otto Brummle, as adminfault sell any chattel deposited with him istrator of the estate of Margaret Brummie, as a pledge; but a different rule has been deceased, brought his action against Dr. S. held in some courts in respect to a pledge W. Richmond to recover $10,000 damages of coinmercial paper as collaterai security for alleged to have accrued by reason of the the payment of a debt By some of the au- unskillful treatment, as a physician, of Mar garet Brummie, his wife. The jury returned guilt or innocence. State v. Bogue, 34 Pae. a verdict for plaintiff below for $100. Judg
Rep. 410, 51 Kan.
5. The uncorroborated testimony of an ao went was entered for $100, with costs. Rich
complice is legally sufficient to sustain a ver mond, defendant below, brings the case to dict, and the degree of credit which ought to this court for review. Otto Brummie con- be given to the testimony of an accomplice is tends that the case should be dismissed upon
a matter exclusively within the province of the
jury; but it is the duty of the trial judge in the ground that this court has not jurisdic
a criminal cause, if requested so to do, to ad. tion. Section 542a of the Civil Code reads: vise the jury not to convict upon the testimony "No appeal or proceeding in error shall be
of an accomplice alone, unless his testimony is had or taken to the supreme court in any
corroborated by other evidence as to some na
terial fact. civil action unless the amount or value in 6. The trial judge was requested by the controversy, exclusive of costs, shall exceed defendant to instruct the jury: "If any witone hundred dollars," except in certain cases
ness had been impeached in the case, they
would not be justified in believing such witness specifled in the statute. Section 1, c. 245, if not corroborated by other evidence, cir. Sess. Laws 1889. As the judgment render- cumstances, and facts concerning the same ed against the defendant was for $100 only,
matter." Also: "If any witness bad hereto
fore made different statements under oath, they exclusive of costs, it is apparent that there
should discard and disbelieve such witness enis, on the part of Richmond, nothing in con- tirely, unless corroborated by other evidence, troversy beyond that amount. Consequent facts, and circumstances.'
." The court refused ly, he is not entitled to an appeal, or any
so to do, but did instruct the jury: "You are
the exclusive judges of the evidence, the face proceeding in error in this court to review
proven, and the credibility of the witnesses; the alleged errors. As the plaintiff below is and it is for you, and you alone, to say from satisfied with the judgment, the amount in
the evidence whether the defendant is guilty or
not. And if you believe any witness bas sword controversy, as to the defendant below, is
falsely to any material fact in this case, then fixed thereby. Smith v. Honey, 3 Pet. 469; you are at liberty to disregard the whole of his Walker v. U. S., 4 Wail. 163; Merrill v. Pet. testimony." And: “If you should find from all ty, 16 Wall. 338; Railroad Co. v. Trook, 100 in this action has heretofore been guilty of
the evidence that any witness who has testified U. S. 112; Ex parte Sweeney, 126 Ind. 583, perjury in testifying falsely conceruing the 27 N. E. Rep. 127. In the case of Railway same matters about which he has testified in Co v. Grames, (Ind. Sup.) 33 N. E. Rep. 896,
this case, then, and in that event, you ought to
carefully and minutely consider all his eri. it was decided that “under Act Feb. 16,
dence in this case, and should carefully com1833, § 1, giving the appellate court juris- pare all his statements in this case, together diction of appeals in actions for the recovery
with all the other evidence in this case, and of money only, where the amount in con
if, after having so done, you are unable to say
whether such witness has or has not testite troversy, exclusive of costs, does not exceed truthfully in this case concerning the matters $3,500, interest should not be computed on
about which he has testified, then, and in that the judgment below, in determining whether
event, you ought to discard and disbelieve the
evidence of such witness entirely. But if you the appellate court has jurisdiction." Evi- are satisfied that any such witness has testified dently, this court has not jurisdiction, as truthfully as to the matter in this case, then the amount or value in controversy, exclusive
you should not arbitrarily disregard his testiof costs, does not exceed $100. The case
mony, notwithstanding you may believe that
he had heretofore made a different staternent. will therefore be dismissed. All the justices Held, that no error was committed in view of concurring.
the instructions given.
7. Where there is even slight evidence that the offense committed may have been of a lor. er degree than the one charged, it is proper for
the trial court to give to the jury the law of STATE V. PATTERSON.
such inferior offenses.
8. The evidence examined, and held suth(Supreme Court of Kansas. Nov. 13, 1893.) cient to sustain a conviction against the de MURDER-INFORMATION-ARRAIGNMENT AND PLEA
fendant of murder in the second degree. -PRINCIPAL AND AccesSORY-EviDENCE OP AO (Syllabus by the Court.)
CREDIBILITY OF WITNESSES INSTRUCTIONS AS TO DEGREES OF HOMICIDE.
Appeal from district court, Cowley county: 1. The case of State v. Cassady, 12 Kan.
A. M. Jackson, Judge. 550, followed.
A. W. Patterson, having been convicted of 2. The case of State v. Mosley, 2 Pac. Rep. murder in the second degree, appeals. Al782, 31 Kan. 335, referred to and commented
firmed. upon. 3. Under the statutes of this state, one who
The other facts fully appear in the follow. procures, counsels, or commands a criminal of- ing statement by HORTON, C. J.: fense may be considered as principal, and may On the 18th day of March, 1893, George be punished as the principal, and it is not necessary to name such principal in the information
W. Scott, county attorney of Cowley counor indictment.
ty, filed an information in the clerk's office 4. As an accessory before the fact may be of the district court of that county, in words charged, tried, and convicted in the same man
and figures as follows, (omitting caption, rer ner as if he were principal, it necessarily follows that he may be convicted of that degree ification, and indorsements:) “In the name, of the crime which the evidence against him by the authority, for, and on bebalf of, the establishes; and the fact that the principal, state of Kans:is, I, George W. Scott, county through failure of proof or caprice of the jury, has been convicted of a lower grade, or even
attorney of Cowley county, Kansas, ne acquitted, cannot affect the question of his now here and give the court to understand.