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kan/1070035.json

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+"{\"id\": \"1070035\", \"name\": \"DeWitt C. Wheeler, Administrator, &c., v. The St. Joseph & Western Railroad Company\", \"name_abbreviation\": \"Wheeler v. St. Joseph & Western Railroad\", \"decision_date\": \"1884-01\", \"docket_number\": \"\", \"first_page\": 640, \"last_page\": \"645\", \"citations\": \"31 Kan. 640\", \"volume\": \"31\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:54:42.433722+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"DeWitt C. Wheeler, Administrator, &c., v. The St. Joseph & Western Railroad Company.\", \"head_matter\": \"DeWitt C. Wheeler, Administrator, &c., v. The St. Joseph & Western Railroad Company.\\n1. Estate oe Minor; Administration. Letters of administration may be granted upon the estate of a minor, as well as upon the estate of any other person.\\n2. Minor, Property Owned by \\u2014 When Not. A minor may own property, the same as any other person. He may obtain it by inheritance, by gift, or by purchase; and there is nothing in the law that would prevent even a father'from giving property to his minor child. A father may also so emancipate his minor child as to entitle him to receive his own wages. Where a minor child lives with his father, and is supported by him, all things given to the child in the way of support, such as clothing, for instance, would still belong to the father, and not to the child; but things given by the father to the child, not in the way of support, \\u2022 but with the understanding that they should become the property of the child, would undoubtedly become the property of the child; and while the child\\u2019s clothing, furnished by the father, generally belongs to the father, yet if the child should purchase clothing with his own money, the clothing would belong to the child.\\nError from Doniphan District Court.\\nAt the March Term, 1883, the court overruled the motion of Wheeler, as administrator of the estate of Frank Wheeler, deceased, for judgment in his favor upon the findings of the jury, and sustained the motion of the Railroad Company for judgment in its favor, revoking Wheeler\\u2019s letters of administration. He brings the case here. The facts are stated in the opinion.\\nW. D. Webb, for plaintiff in error.\\nDonipham & Reed, for defendant in error.\", \"word_count\": \"1923\", \"char_count\": \"10878\", \"text\": \"The opinion of the court was delivered by\\nValentine, J.:\\nThis was a proceeding instituted originally in the probate court of Doniphan county, Kansas, by .the St. Joseph & Western railroad company, to procure the revocation of the letters of administration granted by said court, on December 27, 1881, to DeWitt C. Wheeler on the estate of Frank Wheeler, deceased. On the final hearing of the case in the probate court that court overruled the application of the railroad company, and the railroad company then appealed to the district court of Doniphan county. In the district court the case was tried before the court and a jury, upon the evidence introduced and submitted by the respective parties, and upon such evidence special findings were made as hereafter stated. By the consent of parties, no instructions were given to the jury and no general verdict was found, but the jury simply gave answers to certain special questions of fact submitted to them by the court and the parties. The special questions of fact, with the answers given, are as follows:\\n\\\" Ques. 1: Did Frank Wheeler have any money in his own possession at the time of his death? Ans.: No.\\n\\\" Q,. 2. If question 1 is answered in the affirmative, how and from whom did he obtain the money? A. -.\\n\\\"Q. 3. Did said Frank Wheeler have on deposit with his mother any money at the time of his death? If so, how much? A. Yes; $3.50.\\n\\\" Q,. 4. If question 3 is answered in the affirmative, how and from whom did Frank Wheeler obtain said money ? A. For work for his father at Mrs. Aberlies', $2.50; and for working for Hazenbaugh, $1.\\n\\\" Q,. 5. Aside from the foregoing, did any person owe said Frank Wheeler anything at the time of his death? A. Yes.\\n\\\" Q. 6. If question 5 is answered in the affirmative, who was indebted to said Frank Wheeler, and what was the indebtedness for? A. Moore and Hazenbaugh, for weeding onions and hanging paper.\\n\\\"Q. 7. Had said Frank Wheeler at the time of his death any wearing apparel that he had paid for himself? A. Yes.\\n\\\"Q,, 8. If question 7 is answered in the affirmative, what was the value of such clothing? A. $5.\\n\\\"Q,. 9. If question 7 is answered in the affirmative, how and from whom did said Frank Wheeler obtain the money that he paid for such clothing? A. For playing in the band.\\n\\\" Q,. 10. Did said Frank Wheeler at the time of his death have any wearing apparel other than that heretofore mentioned? A. Yes.\\n\\\"Q,. 11. If question 10 is answered in the affirmative, what was the value of such clothing? A. Don't know.\\n\\\" Q. 12. If question 10 is answered in the affirmative, how and from whom did he obtain such clothing, or the money to pay for the same? A. Don't know.\\n\\\"Q,. 13. Had said Frank Wheeler at the tim\\u00e9 of his death an interest in the Troy band? A. Yes.\\n\\\"Q,. 14, If question 13 is answered in the affirmative, how and from whom did said Frank Wheeler obtain said interest? A. From his father and Frank Berry.\\n\\\" Q,. 15. If question 13 is answered in the affirmative, what was the cash value of said interest? A. $50.\\n\\\"Q,. 16. If question 13 is answered in the affirmative, did said Frank Wheeler have an exclusive interest in any particular instrument, or an interest in common with several others in all the instruments and the business of the band?\\nA. Interest in common.\\n\\\"Q. 17. Did said Frank Wheeler at the time of his death have any other property, interests, or money, or credits, than heretofore mentioned? A. No.\\n\\\"Q. 18. If question 17 is answered in the affirmative, what were said interests, or money, or credits? A. -.\\n\\\"Q. 19. If question 17 is answered in the affirmative, how and from whom were such interests, or money, or credits, obtained? A. -.\\n\\\" Q,. 20. Did the father of said Frank Wheeler ever release his time, or relinquish his rights to the tim\\u00e9 and service of said Frank Wheeler while a minor? A. Yes.\\n\\\" Q,. 21. If question 20 is answered in the affirmative, state when and how? A. When weeding onions.\\\"\\nNo exception was taken to any of these findings of the jury, and no motion was made for a new trial, but both parties moved for judgment upon the findings, and the court overruled the motion of Wheeler and sustained the motion of the railroad company, and rendered judgment in favor of the railroad company and against Wheeler, revoking Wheeler's letters of administration; and Wheeler, as plaintiff in error, now brings the case to this court, and asks for a reversal of said judgment.\\nIf we pass over the questions whether this case was rightfully and regularly brought in the probate court, and was rightfully and regularly appealed to the district court, then the only other question involved in the case is, whether the facts as found by the jury will authorize a judgment in favor of the railroad company and against the plaintiff in error, DeWitt C. Wheeler, revoking his letters of administration.. No facts were admitted by the pleadings, no agreed statement of facts was made or filed, no-exception was taken to any of the findings made by the jury, no request was made for other or additional findings, and no motion was made for a new trial; hence we cannot take into consideration any facts other than those found by the jury, nor can we review the evidence. Really, however, the evidence supports the findings of the jury. Presumptively, the letters of administration were properly issued; presumptively, they were valid in their inception; and presumptively, they are valid still, unless the facts found by the jury clearly and affirmatively show the contrary; and they cannot be revoked, unless the facts found by the jury clearly and affirmatively show that they ought to. be revoked, and that they ought to be revoked at the instance of the railroad company. Now under the facts of the case as found by the jury, what authority has the railroad company to ask that Wheeler's letters of administration should be revoked? We suppose that Wheeler, as administrator, was about to sue the railroad company for wrongfully causing the death of his son, Frank Wheeler, the intestate; but the record does not show any such thing. But even if this were shown by the record, there would still be a question whether the railroad company had any right to interfere, or not. Possibly it would.\\nBut, passing over this question, do the facts of the case as found by the jury show that the letters of administration ought to be revoked at the instance of any person or corporation? Now, taking the facts of the case as they were found by the jury, there is no ground upon which to revoke the letters of administration, unless it be upon the ground that the deceased, Frank Wheeler, did not at his death leave any estate upon which letters of administration could be granted. Everything else necessary for the purpose of issu ing the letters of administration existed as a fact; and nothing has transpired since that would authorize their revocation. It is true, as a fact, that Frank Wheeler at the time of his death was a minor thirteen years and five months old, residing with his father, the present plaintiff in error, in Doniphan county, Kansas; but these facts of themselves do not prevent the issuance of letters of administration, nor render their issuance void, nor authorize their revocation if issued. Letters of administration may be granted upon the estate of a minor as well as upon the estate of any other person. But it is claimed in this case that Frank Wheeler left no estate, and that the estate supposed to have been left by him really belonged to his father; but the jury found otherwise; and, under the circumstances of the case, we cannot say that the findings of the jury are erroneous. As a matter of law, a minor may own property, the same as any other person. He may obtain it by inheritance, by gift, or by purchase; and there is nothing in the law that would prevent even a father from giving property to his minor child. A father may also so emancipate his minor child as to entitle him to receive his own wages. It is probably true that where a minor child lives with his father, and is supported by him, all things given to the child in- the way of support, such as clothing, for instance, would still belong to the father, and not to the child. But things given by the father to the child, not in the way of support, but with the understanding that they should become the property of the child, would undoubtedly become the property of the child. (Hillebrandt v. Brewer, 5 Tex. 45; Grangiac v. Arden, 10 Johns. 293.) Also, while the child's clothing, furnished by the father, generally belongs to the father, yet if the child should purchase clothing with his own money, the clothing would evidently belong to the child. (Dickinson v. Winchester, 58 Mass. 114, 118, 119.)\\nWe cannot say from the facts as found by the jury that the letters of administration issued to the plaintiff in error, Wheeler, ought to be revoked. On the contrary, it would seem to us from such facts that Frank Wheeler at his death\\\" left a sufficient estate to legally uphold such letters of administration. The judgment of the district court will therefore be reversed, and the cause remanded for further proceedings.\\nAll the Justices concurring.\"}"

kan/1084580.json

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+"{\"id\": \"1084580\", \"name\": \"The St. Louis, Kansas & Southwestern Railway Company v. Joseph Morse\", \"name_abbreviation\": \"St. Louis, Kansas & Southwestern Railway Co. v. Morse\", \"decision_date\": \"1892-07\", \"docket_number\": \"\", \"first_page\": 99, \"last_page\": \"108\", \"citations\": \"50 Kan. 99\", \"volume\": \"50\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:38:58.758023+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"The St. Louis, Kansas & Southwestern Railway Company v. Joseph Morse.\", \"head_matter\": \"The St. Louis, Kansas & Southwestern Railway Company v. Joseph Morse.\\n1. Condemnation Pbooeedings\\u2014Void Appeal Bond. In condemnation proceedings instituted by a railroad company to procure a right-of-way, where an appeal bond is given which is signed by the surety only, and not by anyone else, and does not bind or obligate the surety in any amount whatever, held, that the appeal bond is void and cannot constitute or effect an appeal from the award of the condemnation commissioners to the district court.\\n2. Jdbisdiotion \\u2014 Amendment of Bond. In such a case the district court will not obtain sufficient jurisdiction, over the objections of the appellee, to permit the appeal bond to be amended by inserting an amount therein.\\n3. Appeal, Not Rendered Valid. And in such a case the mere agree, ment of counsel to continue the case to another term of the district court will not render the attempted appeal valid, nor give to the district court jurisdiction, over the objections of the appellee, to hear and determine the case.\\ni. Appeabanoe\\u2014Jurisdiction not Given. And where the railroad company moved to dismiss the appeal, on the grounds that the district court had no jurisdiction, that no amount was stated in the appeal bond, and that the appeal bond was not such as is required by law, and the district court overruled the motion, any appearances made by the railroad company after that time in defense of the action will not render the appeal valid, or give to the court jurisdiction, either appellate or original, to hear and determine the case.\\nError from Harper District Court.\\nThe facts appear in the opinion. Judgment for plaintiff, Morse, at the October term, 1889. The defendant Railway Company brings the case to this court.\\nGeo. R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.\\nThe district court did not have jurisdiction by way of appeal from the condemnation proceedings, because no valid and binding bond was filed within the time required by law.\\nThe right of appeal of the plaintiff from the award of commissioners is a statutory right, to which certain conditions are annexed, and a party cannot exercise this right without complying with the conditions attached by the statute. C. B. U. B. Rid. Co. v. A. T. & 8. F. Rid. Co., 28 Kas. 464.\\nSee, also, Beckwith v. 1C. C. & O. Rid. Co., 28 id. 484, 486; Lovitt v. W. & W. Rid. Co., 26 id. 297; Justices\\u2019 Code, \\u00a7 121; Preston v. Hall, 23 Gratt. (Va.) 600; 8acra v. Hudson, 59 Tex. 207; Bardon v. Southerland, 70 N. C. 528; Marsh v. Brooks, 11 Ired. Law, 409; Basford v. Pearson, 9 Allen, 387; Upton v. Archer, 41 Cal. 85; Mosly v. Arkansas, 4 Sneed (Tenn.), 324; Clelland v. Tanner, 8 Colo. 252, 253.\\nA compliance with all the requirements of the statute by the appellant is imperative. People v. Saratoga Common Pleas, 1 Wend. 282, 283; Ex parte Stevens, 6 Cow. 68; Ex parte La Farge, 6 id. 61; Southard v. Phillips, 7 Hun, 18; Thomas v. Thomas, 18 id. 481; Hearne v. Prendergast, 61 Tex. 627.\\nThat a bond which is insufficient at the time of filing to comply with the requirements of the statute is a nullity, and does not give jurisdiction, see Young v. Russell, 60 Tex. 648 ; The State v. Hoelz, 33 N. W. Rep: 597; Figures v. Duncan, 5 S. W, Rep. 503; Succession of Calhoun, 35 La. An, 363. Morphew v. Tatum, 89 N. C. 183; Bailey v. Rutges, 91 id. 420; The State v. Wagner, 91 id. 521.\\nEdwin A. Austin, for defendant in error:\\nIn the case of Lovitt v. W. & W. Rid. Co., 26 Kas. 297, the bond ran to an entire stranger to the record and proceedings, as this court has had frequent occasion to'point out. C. 1C. & W. Rid. Co. v. Town Site Co., 42 Kas. 97; McClelland Bros, v. Allison, 34 id. 155.\\nIn the case of Beckwith v. 1C. C. & O. Rid. Co., 28 Kas. 484, no bond whatever was given, but a deposit of money attempted to be submitted. Neither of these cases is like the present, nor are they analogous to this case. The policy of the law and the courts was. early settled in this state, when in St. J. & D. C. Rid. Co. v. Orr, 8 Kas. 419, this court approved the filing of a new bond where the original was ap proved by the county commissioners instead of the county clerk whom they had just decided was the proper officer in Gulf Illy. Co. v. Owen, 8 Kas. 409. This was justified by \\u00a7 131 of justices\\u2019 code, which is still the law.\\nIn Haas v. Lees, 18 Kas. 454, the court says that \\u201cAppeals are favored, and mere technical defects or omissions are to be disregarded as far as possible without obstructing the course of justice.\\u201d See, also, MoClelland v. Allison, 34 Kas. 155; Smith v. Town Co., 36 id. 758; C. K. & W. Rid. Co. v. Town Site Co., 42 id. 97; Gates v. Sanders, 13 id. 411.\\nIn C. K. & W. Rid. Co. v. Town Site Co., supra, the railroad company appeared generally and tried the case upon its merits, submitting special questions to the jury and making a motion for a new trial. That case is decisive of this case. See, also, H. C. Gold Co. v. N. C. Ore Co., 79 N. C. 48, 51; Mitchell v. Goff, 18 Iowa, 424; Dimseithv. Linke, 10 D\\u00e1ly (N. Y.), 365; Jenkins v. Emery, 2 Wyo. 58; Irwin v. Bank, 6 Ohio St. 81; Negley v. Jeffers, 28 id. 90; Watts v. Shewed, 31 id. 331; Johnson v. Johnson, 31 id. 131.\\nThe question in Mosley v. Arkansas, 4 Sneed, 324, cited by plaintiff in error, was whether in a negotiable bond a blank amount had been filled with the consent of the surety, which being found in the negative, the bond was held void as materially altered.\\nIn Sacra v. Hudson, 59 Tex. 207, the bond was void because there was no obligee named, and the paragraph cited is mere obiter dictum. See, also, Salter v. Helgen, 40 Wis. 363; Downing v. Still, 43 Mo. 317. Finally, it is submitted that if there is any reviewable question shown by the record in this case, (which we deny,) the appeal bond conditioned as the law directs, made by a proper obligor to the proper obligee, filed with and approved by the proper officer, is sufficient to give the district court jurisdiction, even though for a blank amount. In this case, however, the court below permitted the plaintiff to amend his appeal bond by inserting the amount therein and to refile the same.\", \"word_count\": \"3460\", \"char_count\": \"19229\", \"text\": \"The opinion of the court was delivered by\\nValentine, J.:\\nThis was originally a condemnation proceeding instituted by the St. Louis, Kansas & Southwestern Railway Company to condemn a right-of-way for its railroad through Harper county. The commissioners, among other awards to landowners through whose lands the right-of-way was to be established, awarded to Joseph Morse $600 as damages to his property, and he attempted to take an appeal from such award to the district court; and the principal question in the case is, whether the district court obtained jurisdiction to hear and determine the case by virtue of the attempted appeal, or from any other source. The district court, on motion to dismiss, held that the appeal was sufficient to give the court jurisdiction. Afterward a trial was had before the court and a jury, and the jury assessed Morse's damages at $2,030.57; and the railroad company, as plaintiff in error, has brought the case to this court.\\nIt is contended on the part of the railroad company that the supposed appeal from the award of the commissioners was wholly insufficient; while on the part of Morse it is claimed that the appeal was sufficient, or at most that no insufficiency is shown by the record brought to this court, and that the railroad company, by making certain appearances in the district court, waived all irregularities in the manner of taking the appeal. An appeal from an award of damages by commissioners in railroad condemnation proceedings is taken to the district court in the same manner as appeals are taken from judgments of justices of the peace to the district court. (Gen. Stat. of 1889, \\u00b6 1395, 1396 ) And an appeal from a judgment of a justice of the peace to the district court is taken under \\u00a7 121 of the justices' act, which reads, so far as it is necessary to quote it, as follows:\\n\\\"Sec. 121. The party appealing shall, within 10 days from the rendition of judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved by such justice, in a sum not less than $50 in any case, nor less than double the amount of the judgment and costs, conditioned, first, that the appellant will prosecute the appeal to effect and without unnecessary delay; and, second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs; said undertaking need not be signed by the appellant.\\\"\\nNothing more nor less than is required by this section is required to perfect the appeal; and \\u00a7 122 of the justices' act provides, among other things, as follows:\\n\\\"Sec. 122. The appeal shall be complete upon the filing and approval of the undertaking, as provided in section 121.\\\"\\nIn the present case, an appeal bond was filed with and approved by the county clerk. It was signed by Lew. Sargent, the surety, and was not signed by the principals or by any one else. The binding part of the bond, with the condition, reads as follows:\\n\\\"Noiv, therefore, Joseph Morse and Lucy A. Morse, as principals, and Lew. Sargent and-, as sureties, are held and firmly bound unto the St. Louis, Kansas & Southwestern Railroad Company in the sum of $-. Now, if the said Joseph Morse and Lucy A. Morse shall well and truly prosecute their appeal to effect and without any unnecessary delay, and, if judgment be rendered against them, to satisfy such judgment and costs, then this bond to be void; otherwise, to remain in full force and effect.\\\"\\nThe first thing appearing in the record of the proceedings of the district court is a motion made by the railroad company, the defendant in that court, to dismiss the appeal, on the grounds that the district court had no jurisdiction; that no amount was stated in the appeal bond, and that the bond was not such as is required by law. This motion was filed on June 5, 1889. The next thing contained in the record reads, omitting title, as follows:\\n\\\"Now, on this 12th day of April, 1889, the same being one of the days of the regular March, 1889, term of said court for said year, this cause came on for hearing. By agreement of counsel and consent of the court, this cause is continued to the June term, 1889, of said court.\\\"\\nThis was indorsed as follows:\\n\\\"Filed June 18, 1889. W. R. Rowell, clerk of the district court, by J. P. Horton, deputy.\\\"\\nAfterward, and on October 1, 1889, Morse, who was the plaintiff in the district court, filed a motion for leave to amend the appeal bond by inserting an amount therein, and on the same day, but afterward, the court overruled the motion of the defendant railroad company to dismiss the appeal, and sustained the motion of the plaintiff, Morse, permitting him to insert an amount in the appeal bond, and he, with the consent of his surety, Lew. Sargent, inserted the amount of $300. Afterward, and on October 24, 1889, the case was tried before the court and a jury with the result aforesaid. In the district court, besides what is shown above, the defendant railroad company made the following appearances: First, it objected to the trial of the case for various reasons, including those set forth in its aforesaid motion to dismiss the appeal, which objection was overruled by the court; second, it introduced evidence on the trial to rebut the plaintiff Morse's evidence; third, it asked for special findings from the jury; and fourth, after the verdict of the jury it moved for a new trial upon various grounds, which motion was overruled by the court.\\nThe objection to the appeal bond is that the obligor, Lew. Sargent, who is and was rherely a surety, did not agree to do anything. He did not agree that he would prosecute the appeal to effect or pay or satisfy the judgment, o^' any judgment, or that he would pay or satisfy or do anything else, and he did not bind or obligate himself in any amount whatever. His agreement was, in effect, that Morse should prosecute the appeal and should satisfy any judgment that might be rendered against him, and virtually, that in the event that Morse should not do these things, then he, Sargent, bound himself in no amount, and did not agree to clo anything whatever. It is a general rule that a surety on a penal bond is never held to be liable for any amount greater than the penalty mentioned in the bond. And as no one but the surety signed the bond in the present case, and as it mentions no amount whatever and is therefore void as to the surety, it must be held to be void absolutely as \\u00a30 aq persons; and if the bond is absolutely void, then it must necessarily follow, under our statutes, that the appeal itself is void. (Lovitt v. W & W. Rld. Co., 26 Kas. 297; Beckwith v. K. C. & O. Rld. Co., 28 id. 484.) For, as has already been seen, the appeal bond is the foundation for the appeal, and the appeal cannot come into existence without it. Nothing further than the giving of the bond is required by the statutes of. the appellant,.and nothing less; and nothing can be substituted for the bond. (Justices' Act, \\u00a7121, 122.) Probably if an appeal bond, when executed and filed, has any validity at all, it would sustain an appeal, so that the bond could be perfected with the leave of the court to which the appeal is taken. If the bond were sufficient in every respect, except that the amount stated in the bond was insufficient, then the amount might be increased to a sufficient amount, with leave of the appellate court. (C. K. & W. Rld. Co. v. Town Site Co., 42 Kas. 97, 104; McClelland v. Allison, 34 id. 155.) This would certainly be true if the amount mentioned in the bond were as much as $50, the least amount authorized by the statute. (Justices' Act, \\u00a7 121.) And it might be true even if any amount, one dollar or less, were mentioned in the bond; for a bond in any amount could hardly be considered as a void bond, and an appeal bond not absolutely void would probably carry the case to the district court, however irregular it might be, and would probably constitute such an appeal as to enable the appellate court to take jurisdiction of the case and to do whatever might be right and proper in the case.\\nThe award of the commissioners in the present case seems to have been made on June 12, 1888, apd the foregoing appeal bond, such as it is, was filed with the county clerk on June 18, 1888, and the time for giving a sufficient bond under the statute elapsed on June 22,1888,10 days after the award of the commissioners; but no sufficient bond was given within that time, and the amendment of the bond by leave of the court by inserting the amount of $300 therein was not made until October 1, 1889. But will the appearances on the part of the railroad company dispense with the giving of a good and sufficient bond? The first appearance on the part of the railroad company was not made earlier than April 12, 1889, and perhaps not earlier than June 5, 1889, either of which dates was a long time after the expiration of the 10 days given by statute for filing a bond. These 10 days, as we have seen, expired on June 22, 1888; hence, if these appearances had the effect, to give to the court any jurisdiction at all, they must have given to the court original jurisdiction and not appellate jurisdiction; for, as we have before seen, the time for an appeal had expired long before any appearance was made in the district court on the part of the railroad company. A voluntary appearance will of course give a court jurisdiction of the parties, and of the case, in all cases where the court can take original jurisdiction of the subject-matter of the action. (Civil Code, \\u00a7 67.) But can such an appearance give jurisdiction in a case where the court can take only appellate jurisdiction, or jurisdiction only by virtue of an appeal from some other court or tribunal? In a case like the present, the court can take jurisdiction by virtue of the statutes only by virtue of an appeal from an award of condemnation commissioners, and cannot take original jurisdiction.\\nIn the present case it may also be questioned whether any of the appearances were voluntary. Certainly none of them were, after the overruling of the defendant's motion to dismiss the appeal; but supposing they were, then did the court obtain jurisdiction to hear and determine the case as upon an appeal or otherwise? An action giving to the district court original jurisdiction can be commenced only \\\" by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.\\\" (Civil Code, \\u00a7 57.) But no petition or other pleading was ever filed in the present case in any court; and no summons was ever issued. And nothing was done in the district court to get the case into that court except to execute the aforesaid appeal bond and to file in the district court a record of the condemnation proceedings. Hence it would seem that the district court did not get jurisdiction of the subject-matter of this action either by an appeal from the award of the condemna- / % it tion commissioners or by the filing of pleadings, the making up of issues, or the issuing of a summons. In other words, the district court did not obtain either appellate or original jurisdiction. But as before stated, the district court cannot obtain original iurisdict t tion in condemnation proceedings, but only appella te jurisdiction. This case is of course unlike a case where a party has done something which will estop him from raising the question of a want of jurisdiction in the court to hear and determine the case. If the defendant railroad company, for instance, had taken the chances of a trial in the district court before raising any question of a want of jurisdiction, and had caused or permitted by its silence a large amount of costs to accrue, and after being defeated in the action, had then for the first time raised the question, it might perhaps be held that the defendant would be estopped from then raising the question of a want of jurisdiction in the appellate court to hear and determine the case; but nothing of that kind occurred in the present case. The defendant in this case raised the question of a want of jurisdiction in the district court to hear and determine the case, and gave its reasons therefor before any trial was had, and indeed before any action of any kind or character on the part of the court had been taken, and before any costs had accrued except those which had accrued on account of the filing of the condemnation proceedings, for which the defendant was not responsible. This case is also unlike a case where the obligor on a bond has obtained some benefit from the bond or by reason of the giving of the same, and then seeks to repudiate the bond and to avoid all obligation thereon by claiming that it is invalid. The railroad company in the present case was not the obligor on the bond and obtained no benefit therefrom, and of course is not estopped because of any such reason from claiming that the bond is void.\\nThe judgment of the court below will' be reversed, and the cause remanded with the order that the appeal be dismissed.\\nAll the Justices concurring.\"}"

kan/1087427.json

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+"{\"id\": \"1087427\", \"name\": \"Fred. Sofsky v. Amelia Hopper\", \"name_abbreviation\": \"Sofsky v. Hopper\", \"decision_date\": \"1900-04-07\", \"docket_number\": \"No. 11,574\", \"first_page\": 861, \"last_page\": \"861\", \"citations\": \"61 Kan. 861\", \"volume\": \"61\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:39:15.426879+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fred. Sofsky v. Amelia Hopper.\", \"head_matter\": \"Fred. Sofsky v. Amelia Hopper.\\nNo. 11,574.\\n(60 Pac. 1132.)\\nError from Saline district court.\\nOpinion filed April 7, 1900.\\nDavid Ritchie, for plaintiff in error. Bond & Osborn, for defendant in error.\", \"word_count\": \"33\", \"char_count\": \"210\", \"text\": \"Affirmed.\"}"

kan/1100888.json

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+"{\"id\": \"1100888\", \"name\": \"The State of Kansas, ex rel. C. C. Coleman, as Attorney-general, v. The City of Kansas City\", \"name_abbreviation\": \"State ex rel. Coleman v. City of Kansas City\", \"decision_date\": \"1906-05-12\", \"docket_number\": \"No. 14,645\", \"first_page\": 795, \"last_page\": \"795\", \"citations\": \"73 Kan. 795\", \"volume\": \"73\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:49:42.856276+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Kansas, ex rel. C. C. Coleman, as Attorney-general, v. The City of Kansas City.\", \"head_matter\": \"The State of Kansas, ex rel. C. C. Coleman, as Attorney-general, v. The City of Kansas City.\\nNo. 14,645.\\n(84 Pac. 1135.)\\nOriginal proceeding in quo warranto.\\nOpinion filed May 12, 1906.\\nJudgment for plaintiff.\\nC. C. Coleman, attorney-general, for The State.\\nE. S. McAnany, and Ralph Nelson,.for defendant.\", \"word_count\": \"271\", \"char_count\": \"1629\", \"text\": \"Per Curiam:\\nThis is an original proceeding in quo. warranto by the state of Kansas, on the relation of C. C. Coleman, attorney-general, to oust the city of Kansas City and its officers from granting license to, or authorizing, persons to engage in selling intoxicating liquors in that city to be used as a beverage. The substantial allegations of the petition are that the officers of Kansas City are exercising and for more than two years have exercised the corporate power of making, entering into and carrying out agreements and contracts with such persons as the officers of the city may choose, by which such persons have\\\" been, and are, granted the privilege of selling and keeping for sale within the city, and keeping and maintaining within the city, tippling-houses, and places for selling, and keeping for sale, habitually and as a business, intoxicating beverages to be at said places drunk as beverages. In consideration of such privileges such persons at stated intervals paid to the city a stipulated fine, which payments are required by the city and paid as a license for the privilege of conducting such business.\\nThe city filed its answer, which upon the hearing was withdrawn, and consented that judgment might be awarded..\\nIt is therefore ordered that judgment be entered as prayed for in the petition.\"}"

kan/1120783.json

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+"{\"id\": \"1120783\", \"name\": \"V. Hawkins v. John W. Skinner, as Sheriff, et al.\", \"name_abbreviation\": \"Hawkins v. Skinner\", \"decision_date\": \"1901-05-11\", \"docket_number\": \"No. 12,182\", \"first_page\": 881, \"last_page\": \"881\", \"citations\": \"63 Kan. 881\", \"volume\": \"63\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:07:43.323075+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"V. Hawkins v. John W. Skinner, as Sheriff, et al.\", \"head_matter\": \"V. Hawkins v. John W. Skinner, as Sheriff, et al.\\nNo. 12,182.\\n(64 Pac. 969.)\\nOpinion filed May 11, 1901.\\nDivision two.\\nAffirmed.\\nOhas. L. Brown, and Stanley, Vermilion & Evans, for plaintiff in error.\\nHackney & Lafferty, for defendants in error.\", \"word_count\": \"45\", \"char_count\": \"280\", \"text\": \"Error from Oowley district court.\"}"

kan/1120853.json

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+"{\"id\": \"1120853\", \"name\": \"J. W. Temple, Administrator, v. George Johnson et al.\", \"name_abbreviation\": \"Temple v. Johnson\", \"decision_date\": \"1901-06-08\", \"docket_number\": \"No. 12,498\", \"first_page\": 883, \"last_page\": \"883\", \"citations\": \"63 Kan. 883\", \"volume\": \"63\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:07:43.323075+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. W. Temple, Administrator, v. George Johnson et al.\", \"head_matter\": \"J. W. Temple, Administrator, v. George Johnson et al.\\nNo. 12,498.\\n(65 Pac. 1117.)\\nOpinion filed June 8, 1901.\\nDivision two.\\nReversed.\\nJ. G. Hutchison, for plaintiff in error.\\nL. B, & J. M. Kellogg, for defendants in error.\", \"word_count\": \"43\", \"char_count\": \"255\", \"text\": \"Error from Lyon district court.\"}"

kan/1146021.json

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+"{\"id\": \"1146021\", \"name\": \"The State of Kansas v. Owen Nugent\", \"name_abbreviation\": \"State v. Nugent\", \"decision_date\": \"1893-01\", \"docket_number\": \"\", \"first_page\": 297, \"last_page\": \"298\", \"citations\": \"51 Kan. 297\", \"volume\": \"51\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T20:00:16.800384+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"The State of Kansas v. Owen Nugent.\", \"head_matter\": \"The State of Kansas v. Owen Nugent.\\nIntoxicating Liquob \\u2014 Illegal Sales \\u2014 Evidence Sustains Verdict of Guilty. Where a defendant is charged with selling intoxicating liquors in violation of the law in a \\u201ccertain building in the alley\\u201d between streets definitely named, and the evidenoe of the witnesses tended to show that the building where the intoxicating liquors were sold was on the corner of a lot adjoining the alley named, and also that it stood in the alley, and the other allegations of the information were fully supported, held, that the evidence justified a verdict of guilty, and that there was not sufficient variance in the proof from the allegations concerning the plaoe where the liquors were sold as to mislead the defendant, or to prejudice his legal rights so as to demand a new trial.\\nAppeal from Wyandotte District Court.\\nThe opinion states the facts.\\nHale & Fife, for appellant.\\nJohn T. Little, attorney general, and A. H. Cobb, county attorney, for The State; W. G. Holt, of counsel.\", \"word_count\": \"464\", \"char_count\": \"2695\", \"text\": \"The opinion of the court was delivered by\\nHorton, C. J.:\\nOwen Nugent was convicted of having unlawfully sold intoxicating liquors in a certain building situated in the alley between Fifth and Sixth streets, and Minnesota and Armstrong avenues, in the city of Kansas City, in the county of Wyandotte, in this state. He was sentenced to pay a fine of $100, and to be committed to the county jail for 30 days, and also to be confined until the fine and costs were paid. He appeals.\\nIt is contended that there was no evidence introduced upon the trial showing that Nugent sold intoxicating liquors in a \\\"building situated in the alley.\\\" We have carefully read all of the evidence. One of the witnesses testified that the place of business of Nugent was on the \\\"corner of the alley; some say it stands in the alley.\\\" This witness further testified that the place of business \\\" was right in the two alleys.\\\" There was sufficient evidence before the jury to sustain the allegations of the information as to the building or place where the intoxicating liquors were sold. At least, there was not such a variance in the proof from the allegations of the information as to mislead the defendant, Nugent, or prejudice him in any way in his legal rights.\\nSeveral instructions were requested upon the part of the defendant which were refused. Of the refusal, complaint is made. The instructions refused are not embodied in any bill of exceptions. They are not a part of the record in this case, and therefore cannot be examined or considered. (The State v. McClintock, 37 Kas. 40-43; The State v. Smith, 38 id. 194.)\\nThe judgment of the district court will be affirmed.\\nAll the Justices concurring.\"}"

kan/1151636.json

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+"{\"id\": \"1151636\", \"name\": \"The Monarch Cycle Company et al. v. W. P. Wasgener, Trustee, et al.\", \"name_abbreviation\": \"Monarch Cycle Co. v. Wasgener\", \"decision_date\": \"1898-04-09\", \"docket_number\": \"No. 10485\", \"first_page\": 271, \"last_page\": \"275\", \"citations\": \"59 Kan. 271\", \"volume\": \"59\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T00:03:00.669556+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Monarch Cycle Company et al. v. W. P. Wasgener, Trustee, et al.\", \"head_matter\": \"The Monarch Cycle Company et al. v. W. P. Wasgener, Trustee, et al.\\nNo. 10485.\\nMarshaling Securities \\u2014 owe secured by mortgage of partnership personalty and of individual realty not required to exhaust latter, to. injury of junior mortgagee, for benefit of another mortgagee of partnership personalty alone. The equitable doctrine that, where one creditor is secured by mortgage on two properties and another on only one of them, the former shall be required to exhaust that on which he only is secured before resorting to the other, does not extend so far as to require a creditor of a partnership who is secured both by chattel mortgage on the personalty of the firm and by mortgage on the individual real estate of one member, to sell the real estate, and thereby deprive a creditor holding a junior mortgage on the land of his security, in order to preserve the personal property as security for a creditor holding a chattel mortgage on it alone, though senior in date to the second mortgage on the land.\\nError from Atchison District Court. W. D. Webb, Judge.\\nOpinion filed April 9, 1898.\\nAffirmed.\\nB. F. Hudson and Jackson & Jackson, for plaintiff's in error.\\nWaggener, Horton & Orr, for defendants in error.\", \"word_count\": \"1255\", \"char_count\": \"7196\", \"text\": \"Allen, J.\\nThe parties to this action are very numerous, including Jacob, Grant and Leon Leu, partners as Jacob Leu & Sons, and very many of their creditors. The questions for consideration relate to marshaling of securities given by Leu & Sons for the benefit of two sets of creditors, one the plaintiffs in error, and the other represented by Waggener, as trustee.\\nJacob Leu & Sons were dealers in stoves, tin and copper ware, etc., at Atchison and other places, and were insolvent. On May 29, 1894, they executed a mortgage covering all their stock in trade, notes and accounts, to the First National Bank to secure an indebtedness to it of $21,199.56. On the same day Jacob Leu and wife also executed a mortgage on the real estate, owned by him individually, to secure the same debt. On May 29 Leu & Sons executed a chattel mortgage to the plaintiffs in error to secure their respective demands, which was recorded on May 31. On the last mentioned date they executed a mortgage on their merchandise to W. P. Waggener, as trustee, to secure the creditors represented by him. This mortgage was made subject to the prior mortgages to the bank and plaintiffs in error. At the same time Jacob Leu and wife also executed to Waggener, as trustee, a mortgage on his land to se cure the same creditors who were secured by the chattel mortgage, and some others. This mortgage was, in terms, subject to the mortgage to the Bank. There was an intermediate chattel mortgage between the one given to the Bank and that to the plaintiffs in error ; and there were also numerous mortgages and judgments subsequent to those above mentioned. But the controversy in this case is between the plaistiffs in error on one side and the creditors represented by Waggener, as trustee, on the other, and relates to the rights of the parties with reference to the marshaling of the securities obtained by their mortgages. The personal property was taken possession of by the Bank, and with the consent of all the parties was sold by order of the court for $28,254.96. It was agreed that neither of the parties to the action should be prejudiced in their rights to resort to any of the securities given, by reason of the sale of the property. The real estate covered by the mortgage to the Bank was worth, approximately, $25,800. The claims of the plaintiffs in error aggregated something over $11,000, and those represented by Waggener to more than $8,000.\\nThe contention of the plaintiffs in error is for the application here of the equitable doctrine that, where one creditor is secured by two funds and a subsequent creditor by only one of them, the senior creditor shall be required to first exhaust that fund by which he alone is secured, before resorting to the fund by which the junior creditor is secured. It is said that in this case the Bank, which has the senior lien, was secured both by mortgage on the debtor's personalty and real estate ; that the plaintiffs in error were secured by the personal property only, and that under this equitable doctrine the bank should be required to sell the land for the payment of its claim, and leave the personal property to the plaintiffs in error to pay their demands ; or, if the Bank be permitted to take payment out of the proceeds of the personal property, that the plaintiffs in error should be subrogated to the extent of their claims to the security the Bank held under its mortgage on the land. It is contended that when Waggener took his subsequent mortgages he took them with full knowledge of all the facts, and that this includes notice, not merely of the existence of the prior mortgages and of their terms, but also of the plaintiff's equitable rights as above stated. On behalf of the defendants in error, it is claimed that the facts of this case do not warrant the application of the equitable rule invoked. It is said that it does not extend to a case where the two funds belong to different persons; that in this case the debts are primarily partnership debts, payable out of the partnership property ; that the lands mortgaged were the individual property of Jacob Leu, to which partnership creditors had no right to resort until after exhausting the personal property of the partnership. It is further urged that this doctrine will not operate to defeat a lien definitely created by a subsequent mortgage.\\nThe general doctrine assert\\u00e9d by the plaintiffs in error is conceded, and has been recognized by this court in various cases. Burnham v. Citizens Bank, 55 Kan. 545, 40 Pac. 912; Gore v. Royse, 56 id. 771, 44 Pac. 1053. But this has its foundation solely on equitable considerations. There is nothing in this case from which we can say that in good conscience the claim of one creditor is superior to that of another. The priorities are to be determined solely from the diligence and success of the respective parties in obtaining security for their claims. The plaintiffs in error succeeded in obtaining a specific lien only on the personal property of the firm. The creditors represented by Waggener obtained a specific lien on the real property of Jacob Leu. They might with equal show of right insist that the Bank should exhaust the personalty belonging to the firm before resorting to the indidividual estate of Jacob Leu, who has exercised his right to prefer them in the application of 'his individual estate. We perceive no ground on which it can be declared that Jacob Leu had no right to prefer one creditor over another in the application of his personal estate to the payment of the firm debts. Nor does the fact of the insolvency of the firm affect this right. What the rule might be, if no one but Jacob Leu were opposing the claim of the plaintiffs in error, we are not called on to decide. It is sufficient for the purposes of this case to hold that the lien created by the mortgage to Waggener is superior to the claimed equities of the plaintiffs in error.\\nThe judgment of the District Court must be affirmed.\"}"

kan/1151752.json

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+"{\"id\": \"1151752\", \"name\": \"The State of Kansas v. Patrick O'Shea\", \"name_abbreviation\": \"State v. O'Shea\", \"decision_date\": \"1898-07-08\", \"docket_number\": \"No. 11109\", \"first_page\": 593, \"last_page\": \"598\", \"citations\": \"59 Kan. 593\", \"volume\": \"59\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T00:03:00.669556+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Kansas v. Patrick O\\u2019Shea.\", \"head_matter\": \"The State of Kansas v. Patrick O\\u2019Shea.\\nNo. 11109.\\nDefective Verdict \\u2014 information under \\u00a7 49 of Grimes Aet, verdict of guilty not specifying degree, defective, though it add \\u201cas charged in information.\\u201d A verdict in the following form \\u2014 \\u201cWe, the jury impaneled and sworn in the above entitled ease, do upon our oaths find the defendant guilty of an assault with intent to kill as charged in the information\\u201d \\u2014 \\u25a0 is insufficient to support a sentence to confinement at hard labor in the penitentiary for eight years under section 39, chapter 100 of the General Statutes of 1897. It fails to show the degree of the offense of which the jury convicted the defendant, as required by section 239 of the Criminal Code.\\nAppeal from Sedgwick District Court. D.M.Dale, Judge.\\nOpinion filed July 8, 1898.\\nReversed.\\nL. G. Boyle, Attorney General, 8. B. Amidon, County Attorney, and J. F. Conly, Assistant County Attorney, for the State.\\nAdams & Adams, for appellant.\", \"word_count\": \"1930\", \"char_count\": \"10951\", \"text\": \"Allen, J.\\nThe appellant was charged, under section 39, chapter 100, of the General Statutes of 1897, with an assault on James Dawson with intent to kill him. On this information he was tried, convicted, and sentenced to the Penitentiary for a term of eight years. From this conviction he has appealed to this court.\\nIn view of the conclusion reached, it is unnecessary to enter into any minute consideration of the facts. A general statement only will be made. Patrick O 'Shea kept a saloon in the north part of Wichita. He had lived for seven or eight years with a woman named Anna Whaley, to whom he was never married. They lived together at his saloon until some time in the fall of 1897, when Miss Whaley went away with Dawson. On Sunday, the fourteenth of November, 1S97, Dawson and. Miss Whaley went to O'Shea's 'place about eleven o'clock in the forenoon. They drank a great deal together. O'Shea denies having been drunk. About four or five o'clock in the afternoon, according to O'Shea's testimony, Dawson was quarreling with Miss Whaley and had a pistol drawn on her. O'Shea interfered. A scuffle ensued, during which the pistol was discharged, inflicting a flesh wound in Dawson's arm. Dawson denied any recollection of what took place at that time, and claimed that he was so drunk he did not know what he was doing. A policeman came in, disarmed Dawson, and quieted the disturbance. After that, Dawson took a street car and went do.wn into the city to his room.\\nDawson testifies that when he went to O'Shea's place in the morning he had $300 with him. At his room he missed his money. About nine o'clock in the evening he took a hack and drove back to O'Shea's place. He went to the back door and knocked. O'Shea asked, \\\"Who is there?\\\" He answered, \\\"Ed\\\"; O'Shea then said, \\\"All right, Ed, come around to the front.\\\" Dawson did so, and went in, He leaned on the bar and said, \\\"Paddy, I lost my leather down here this afternoon.\\\" O'Shea said, \\\"You are a damned lying son of a bitch,\\\" raised his revolver, shot, and hit him in the side. Dawson 'turned to go out. O'Shea shot again, and hit him in the back, causing him to fall on the floor. O'Shea then came up and kicked him two or three times in the ribs. This is Dawson's version of the matter. O'Shea's is quite different, as to the most essential facts. Dawson states that when he went back to find his money he was unarmed. O'Shea testifies that when Dawson came to the back door, in answer to his question, \\\"Who is there?\\\" Dawson said, \\\"The Kid \\\" ; that he had his money in a leather collar-box, and his gun lying on the bar ; that he was standing by the bar, between eight and twelve feet from the door, when Dawson came in ; that as he came in, Dawson said, \\\"You son of a bitch,\\\" and raised his gun; that he (O'Shea) raised his gun and fired, and that Dawson reeled and fell, and his gun dropped from his hand. An officer then came in, to whom O'Shea surrendered. Testimony was also introduced by the defendant tending to corroborate O'Shea's statement that Dawson was armed. There was also testimony as to threats made by Dawson, and communicated to O'Shea, between the time Dawson left in the afternoon and came back at night.\\nIn charging the jury, the court gave full instructions with reference to the defense defined in section 39, before mentioned, and also with reference to assault and battery, which the jury were told was included in the charge. No reference was made to the offense defined by section 40 of the same chapter. As applied to the facts of this case, the essential difference between sections 39 and 40 is that section 39 requires that the assault be made on purpose and of malice aforethought, with intent to kill; while section 40 defines a lower grade of offense, in which the ele-meut of malice aforethought is not included. In order to sustain a conviction under section 40, it is only necessary to prove that the assault was made under such circumstances as would have constituted manslaughter if death had ensued. If the truth is that Dawson made an assault on O'Shea, but failing in his attempt was unnecessarily shot by O'Shea after he had turned to go out of the saloon, a conviction might have been had under section 40. Under instructions incomplete in this particular the case was submitted to the jury, who rendered the following verdict\\u2014\\n\\\"We, the jury duly impaneled and sworn in the above entitled case, do upon our oaths find the defendant guilty of an an assault with a deadly weapon with intent to kill, as charged and set forth in the information.\\\"\\nThis verdict the court construed as a verdict of guilty under section 39, and passed sentence on the defendant of confinement in the Penitentiary for eight years \\u2014 three years more than is warranted on a conviction under section 40. The requirement of section 239 of the Criminal Code, that the jury shall specify in their verdict of what degree of the offense they find the defendant' guilty, has caused very nice and embarrassing questions to arise in a number of cases ; but it may now be deemed the law of this state, well settled by a line of decisions, that the degree of offense of which the conviction is had must be determined from the verdict itself, and that the addition of the words \\\" as charged and set forth in the information,\\\" is insufficient to show that the jury intended to find the defendant guilty of every element of the principal crime charged in the information. The State v. Reddick, 7 Kan. 143; The State v. Huber, 8 id. 447; The State v. Treadwell, 54 id. 513, 38 Pac. 813; The State v. Scarlett, 57 id. 252, 45 Pac. 602; The State v. Pickering, 57 id. 326, 46 Pac. 314.\\nIt would appear that the attention of the court was not challenged directly to the provisions of section 40 and its applicability to the facts presented by the case on trial. The claim of the State was that the defendant was guilty under section 39 of a premeditated .attempt to commit murder. The claim of the defense was that the action of the defendant was justifiable because done in self-defense. The fact that the defendant shot Dawson and inflicted the wounds from which he suffered, was admitted. The principal acts of the defendant charged to have been criminal, he admitted having done. The matter in issue to be tried was the motives prompting those acts, and the existence or want of justification therefor. The verdict finds the defendant guilty of the acts and also of an intent to kill; but it fails to state either that the acts were done on purpose or of malice aforethought. To constitute the crime defined by section 39 these elements are essential. It may be doubted whether the verdict would be sufficient to sustain a judgment under section 40. The judgment in fact entered was under section 39, and the jury under the instructions of the court were not required to consider whether the defendant was guilty of the offense defined by section 40. In this state of the case we need not determine the question whether the form of the verdict is suf-' ficient to sustain a sentence under section 40. The insufficiency of the verdict necessitates another trial.\\nWhat has been said concerning the failure of the court to charge with reference to the offense defined by section 40 has been for the purpose of explaining the question arising on the verdict, rather than of considering whether the court erred in failing to instruct with reference to section 40, where no such instructions were asked. On a re-trial, however, it will be incumbent on the court to carefully charge the jury not only with reference to the principal offense but also with reference to the minor offenses included in it.\\nMany other criticisms on the instructions are advanced by counsel for the appellant, but we find nothing substantial in any of them. On all other propositions the law seems to have been fully, correctly and clearly stated to the jury.\\nAt the trial the defendant called witnesses to prove his own good character for peace and quietude and also for honesty and integrity. The court admitted the evidence as to the former, but excluded that concerning the latter. The theory on which evidence as to honesty was offered is that it tended to rebut the charge that O'Shea had taken Dawson's money. The court ruled correctly. He was not on trial for robbery or larceny.\\nComplaint is also made of the exclusion of evidence \\u2022offered for the purpose of showing that Dawson was a robber, and had recently robbed a post-office in New Mexico. In this also the ruling of the court was right. The defendant had no commission to kill robbers, and if Dawson was in fact a criminal, as claimed, it would not tend to exculpate O'Shea. While this case strongly illustrates the natural association of one crime with another, it also exemplifies the rigidity with which the law disconnects one criminal charge from another. According to his own oath, the defendant was a daily violator of at least two of the criminal statutes of the State. For three or four years he had kept a saloon, and for a still longer time he had cohabited with a woman not his wife. He was not on trial for either of these crimes. Although drunkenness and lewdness naturally and often lead to brawling and murder, guilt of these does not prove guilt of attempted murder. The same strictness of proof is still required as in the case of a defendant whose character is irreproachable in these particulars. Unfortunately there are too many persons afflicted with such moral blindness that they do not comprehend the turpitude of one vice though perhaps keenly alive to the enormity of others. The law apportions its punishments according to the magnitude of the offense, and allows only a separate trial and separate punishment for each.\\nIn this' case we are forced to order a new trial because the jury has not been specific in finding the elements of criminality of which they convicted the defendant.\\nThe judgment is reversed and tile cause remanded for a new trial.\"}"

kan/1151882.json

@@ -0,0 +1 @@
+"{\"id\": \"1151882\", \"name\": \"The State of Kansas v. Alvin Campbell\", \"name_abbreviation\": \"State v. Campbell\", \"decision_date\": \"1898-03-05\", \"docket_number\": \"No. 10980\", \"first_page\": 246, \"last_page\": \"249\", \"citations\": \"59 Kan. 246\", \"volume\": \"59\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T00:03:00.669556+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Kansas v. Alvin Campbell.\", \"head_matter\": \"The State of Kansas v. Alvin Campbell.\\nNo. 10980.\\n1. Embezzlement \\u2014 officer of organization whose by-laws require him to collect and turn over money, is trustee of express trust. One who takes upon himself an office in a fraternal and benevolent organization, the duties of which office as set forth in the printed or written by-laws and regulations are to collect the moneys of such organization and pay them over to another of its officers, is the trustee of an express trust, within the meaning of section 95, chapter 100, General Statutes 1897, and is liable under such statute for the embezzlement of the money collected by him.\\n2. Fraternal Organization \\u2014 not a partnership. A fraternal and benevolent organization which exists for the mutual aid of its members and not for the making of profits in the conduct of business, is not a partnership; and one of its members who wrongfully converts its funds to his own use cannot be absolved from liability therefor upon the ground that such wrongful act is not embezzlement but is the conversion of partnership funds.\\nAppeal from Finney District Court. W. E. Hutchison, Judge.\\nOpinion filed March 5, 1898.\\nReversed.\\nL. G. Boyle, Attorney-General, and B. F. Stocks, County Attorney, for the State; H. F. Mason, of counsel.\\nA. J. Hoslcinson, for appellee.\", \"word_count\": \"1269\", \"char_count\": \"7418\", \"text\": \"Doster, C. J.\\nThis was an appeal by the State from a judgment quashing an information. The information contained four counts. The first count was framed under the first part of section 95, chapter 100, General Statutes 1897, and charged the defendant, as trustee of an express trust, with embezzlement. The second count was framed under the latter part of the same section, and sought to charge the defendant, as an agent, with failure to deliver, upon demand, money which came into his jmssession as such agent. The third count was framed under section 97 of the same chapter, and sought to charge the defendant, as bailee, with the embezzlement of money. The fourth count aggregated nearly all the facts alleged in the first three counts, and charged the defendant with the embezzlement of money. The facts as charged in each of the counts are set out with much particularity of detail.\\nSummarized, they state that there was a fraternal and benevolent organization known as the Knights of Pythias, a subordinate lodge of which existed at Garden City, Finney County; that the defendant was a member of such lodge ; that he filled an office in it called Master of Finance ; that the duties of such office were defined by written rules prescribed in the by-laws and other regulations governing the lodge ; that such duties included the collection of dues from the individual members of the lodge and the payment of the money to another officer of the lodge, called the Master of Exchequer ; that, in accordance with these rules and regulations, the defendant, as Master of Finance, received from the members the-sum of one hundred and sixty dollars, which, instead of turning over to the Master of Exchequer, he converted to his own use.\\nFor reasons not necessary to set forth, we are of the opinion that the court committed no error in quashing the second and third counts of the information. However, the first and fourth counts must be held good. Section 95, chapter 100, General Statutes 1897, makes embezzlement by trustees of express trusts punishable. The question \\u2022 which arises under the first count of the information is : Was the defendant the trustee of such a trust ? 1 ' Express trusts are those which are created by the direct and positive acts of the parties by some writing, or deed, or will.\\\" 2 Story's Equity Jurisprudence (13th ed.), 283. The writings which evidence such trusts need not be signed by the party who takes upon himself the trust obligation. Trust instruments are more often unilateral in execution than otherwise. In Caldwell v. Matthewson (57 Kan. 258, 45 Pac. 416), the assignee under a deed of assignment for the benefit of creditors was held to be the trustee of an express trust. The terms of the trust \\u2014 the agreement of the trustee to be bound by the writ-ling\\u2014 may be evidenced by parol. Such being the [law, there is no difficulty in holding the defendant to the trustee of an express trust. The written rules and regulations of the society, contained in its constitution and by-laws, which provide among other things for the offices of Masters of Finance and Exchequer and which prescribe the duty of the one to collect and of the other to receive and disburse dues from the individual members of the lodge, constitute a trust instrument. It is reasonable to suppose- that upon becoming a member of the lodge the defendant subscribed to its constitution and other published regulations ; but, whether he did or not, his acceptance of the office to which he had been elected was an acknowledgment of his obligation to be bound by the printed or written rules pertaining to the administration of such office. Doing so, he accepted a trust, and made himself, by such act, the trustee of an express trust. The authorities are to such effect.\\n\\\"A person who was trustee, treasurer and secretary of a savings bank was indicted for a misappropriation as a trustee. As secretary he received the money deposited, which, by the rules of the savings bank, it was his duty to hand over to the treasurer, who was required by the Savings Bank Acts to pay it over, when demanded', to the trustees, whose duty, as defined by the rules, was to vest it in the public funds in the names of the commissioners for the reduction of the national debt. He falsified his accounts, and appropriated to Ms own purposes part of the money so deposited with him as secretary, with intent to defraud. Held, first, that he was a trustee for the benefit of other persons. Held, secondly, that there was an express trust created by the rules, although they were made before the appointment of the trustee and the existence of the trust fund. Held, thirdly, that the rules of the savings bank were an instrument in writing.\\\" 6 Am. & Eng. Encyc. Law, p. 482, note.\\nIt cannot be claimed that the lodge was a partnership and the defendant one of the partners, and that a partner wrongfully making away with the funds of his firm is not guilty of embezzlement, upon the theory that one cannot be \\u00b0 guilty of embezzlement from himself. Such associations as the one in question are not partnerships. The purposes of such organizations - are benevolent and fraternal, not for the conduct of business or the accumulation of profit. That they do not partake of the nature of partnerships, and that their fiscal or managing agents are guilty of embezzlement by the unauthorized conversion of their funds, is quite well shown in the case of Laycock v. The State, 136 Ind. 217. The first count of the information, therefore, should have been held good as against the motion to quash. So likewise the fourth count .should have been held good. Some averments in the second and third counts justified the court in ruling that they did not state facts sufficient to constitute public offenses, but, in the general summary made in the fourth count of all the facts stated in the preceding counts, the objectionable matter contained in the second and third counts was left out.\\nThe judgment of the court below quashing the first and fourth counts is reversed for proceedings in accordance with the views herein expressed.\"}"

kan/1154762.json

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+"{\"id\": \"1154762\", \"name\": \"The State of Kansas v. John Cairns, jr.\", \"name_abbreviation\": \"State v. Cairns\", \"decision_date\": \"1902-04-05\", \"docket_number\": \"No. 12,952\", \"first_page\": 782, \"last_page\": \"788\", \"citations\": \"64 Kan. 782\", \"volume\": \"64\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:26:36.438372+00:00\", \"provenance\": \"CAP\", \"judges\": \"Johnston, Cunningham, JJ., concurring.\", \"parties\": \"The State of Kansas v. John Cairns, jr.\", \"head_matter\": \"The State of Kansas v. John Cairns, jr.\\nNo. 12,952.\\n(68 Pac. 621.)\\nSYLLABUS BY THB COURT.\\n1. Intoxicating Liquors \\u2014 Express Agent. The agent of an express company who in good faith delivers to the consignee, or to another upon his order, goods carried by his principal, consigned \\u201cC. O. D.,\\u201d and collects the charges thereon, is not guilty of selling intoxicating liquors, though he has reason to believe or knows the goods so consigned and delivered to be intoxicating liquors.\\n2. - Where Sale is Made. In such case it is the consignor who delivers the intoxicating liquor to the carrier upon an order from the consignee that makes the sale, and the sale is made at the place of delivery to the common carrier.\\nAppeal from Osage district court; William Thomson, judge,\\nOpinion filed April 5, 1902.\\nReversed.\\nA. A. 'Godard, attorney-general, for The State. -\\nAustin & Hungate, for appellant.\", \"word_count\": \"2132\", \"char_count\": \"12029\", \"text\": \"The opinion of the court was delivered by\\nPollock, J. :\\nAppellant was acting as agent of the Wells-Fargo Express Company at Scranton, Osage county. A box enclosing a jug containing intoxicat ing liquor \\u2014 whisky\\u2014consign\\u00e9d \\\"O. O. D.,\\\" with charges $3.85, to one Mack Husband, was earned by the express company to Scranton. The evidence fails to disclose from what place the box was shipped. It appears that Husband did not want the box or failed to pay the charges and take it. Some six or eight weeks after its receipt at the express office in Scranton some boys went to appellant, and one Shepard inquired whether there were any extra \\\"O. O. D.'s\\\" there. Appellant told him that Husband had one there which he did not want. Shepard asked if he could get it, and appellant said he would have to get an order from Husband. Thereafter appellant went to Husband's house, informed him that some boys wanted to get his \\\"C. O. D.,\\\" to which Husband answered : ' ' All right; let them have it. \\\" Appellant said that he would have to have an order from Husband, and thereupon appellant wrote the following order, which Husband signed:\\n\\\"Mr. J. F. Wolf: \\\"March 18, 1901.\\n\\\"Please let Mr. O. D., and oblige, Curnice Shepard have my box C. Mack Husband.\\\"\\nIt further appears that Shepard paid the charges, receipted for the box on the delivery book of the express company, and took it away with him. For this transaction appellant was prosecuted, and convicted on a charge of selling, intoxicating liquors to Shepard. He appeals.\\nThe important controversy in this case arises upon the instructions. It is contended by counsel for appellant that instruction No. 9 is misleading, and that instruction No. 10 is both erroneous as applied to the facts of this case andas an abstract proposition of law. These instructions read :\\n\\\"9. If you believe, beyond a reasonable doubt that the defendant, at the time of the alleged sale, was the agent of the Wells-Fargo Express Company, a carrier of freight, to whom was entrusted the duty of carrying a jug of whisky to one Mack Husband at Scranton, and that the defendant had good reason to and did believe that the jug contained whisky, an intoxicating liquor, and that the defendant, instead of delivering it to Mack Husband or to any one authorized by Mack Husband to receive it, sold and delivered the same to one Shepard for four dollars or any other sum, and delivered the said jug of whisky to said Shepard for the purpose of transferring the title thereof to Shepard, and that the transaction occurred in Osage county, state of Kansas, on or about the 18th day of March, 1901, and that at such time said defendant, nor those for whom he may have been acting, did not have a permit to sell intoxicating liquors under the law, then you will find the defendant guilty as charged.\\n\\\"10. If you believe from the evidence beyond a reasonable doubt that some one had sent through the Wells-Fargo Express Company a jug of whisky, an intoxicating liquor, to Mack Husband at Scranton, the price whereof or any portion thereof to be collected upon the delivery of said whisky to said Mack Husband, and that defendant knowing or having reason to believe that said jug contained whisky, delivered the same to witness Shepard with the consent of Mack Husband or upon his order, and said defendant collected the price of said whisky or any portion thereof from witness Shepard, and thereupon delivered the same to said Shepard, and that at said time neither the railroad company nor Wells-Fargo Express Company nor the defendant had any permit to sell intoxicating liquors, that these things occurred in Osage county, in the state of Kansas, on the 18th day of March, 1901, then you will find the defendant guilty, whether he thought he was committing a crime or not.\\\"\\nThese instructions point out the theory upon which the case was submitted to the jury. If this theory is determined to be wrong in principle, the case must be reversed. Instruction No. 9 may be correct as an abstract proposition of law, but it is not applicable to the facts found in the record. There is no contention made by the state that Mack Husband did not authorize appellant to deliver the box to Shepard or that Shepard was not authorized to receive it. The important question of fact at issue is whether in making the delivery appellant acted in good faith as' the agent of the express company and not as the agent of the consignor or upon his own responsibility. Upon this issue of fact arises the issue of law involved in this case.\\nIs the agent of an express company or other common carrier for hire,-who, in good faith, delivers goods carried by his principal, consigned \\\"C. O. D.,\\\" and collects and returns the charges thereon, guilty of selling intoxicating liquors to the party to whom delivery is made, even though he knows the goods so consigned, and delivered to be intoxicating liquors ? This question was answered in the affirmative by the trial court in instruction No. 10 ; for it must, we think* be conceded, if delivery in such case may be made to the consignee without guilt, it may also be made in good faith upon the order of the consignee. The determination of this issue of-law depends on the answer to be given to the question as to where and by whom the sale was made, as it is self-evident that to sustain a conviction of the agent it must be shown that the sale was made by the agent and in the county where the prosecution is begun.\\nThe weight of authority supports the rule that; where goods are ordered to be shipped \\\"O. O. D.,\\\" the contract of sale is completed upon the vendor's delivering the goods to a common carrier, although with instructions to collect the price from the con signee before delivery to Mm. This rule obtains where the goods sold are intoxicating liquors as in other cases. In 17 A. & E. Encycl. of L. (2d ed.), at page 300, it is said :\\n\\\"A somewhat different question is presented when the sales are made C. O. D. There is much diversity of opinion as to whether sales of this character are to be deemed absolute sales on the part of the vendor with a provision for withholding delivery until actual payment, so as to preserve the lien for the price, or only as executory contracts of sale not completed until actual delivery into the hands of the buyer. In a number of decisions it has been held that, for the purpose of determining whether the seller has violated the liquor laws in force where the buyer lives, a sale-C. O. D. is not complete until delivery, acceptance, and payment of the price by the person ordering the liquors. At least, so far as cases dealing with intoxicating liquors are concerned, however, the weight of authority is against the foregoing view, and it is generally held that, where intoxicating liquors are ordered to be shipped C. O. D., the sale is completed when the liquor is delivered to the carrier.\\\"\\nIn the well-considered case of Commonwealth v. Fleming, 130 Pa. St. 138, 18 Atl. 622, 5 L. R. A. 470, 17 Am. St. Rep. 763, it was said:\\n\\\"If a liquor dealer in Allegheny county receive an \\u2022order for liquor, to be shipped to the purchaser in Mercer county, C. O. D., and in pursuance of the order the liquor be delivered to a common carrier in Allegheny county, for transportation to the vendee, at the latter's expense, C. O. D., the delivery to the carrier is a delivery to the purchaser in such a sense as to complete the sale in Allegheny county.\\\"\\nIn the opinion it was said:\\n\\\"The carrier, being the agent of the purchaser to receive the goods, does receive them from the seller in Allegheny county, and the delivery to him for the purpose of transportation was a delivery to the pur chaser. This is the legal and certainly the common understanding of a sale. The statute, being criminal, must be strictly construed ; and only those acts which are plainly within its meaning, according to the common understanding of men, can be regarded as prohibited criminal acts. We cannot consider, therefore, that a mere undertaking on the part of the carrier to collect the price of the goods at the time of his delivery to the purchaser, though the payment of the price be a condition of the delivery, can suffice to convert the seller's delivery to the carrier for transportation and collection into a crime.\\\"\\nIn the case of State v. Flanagan, 38 W. Va. 53, 17 S. E. 792, 22 L. R. A. 430, 45 Am. St. Rep. 832, it was held:\\n\\\"A party residing in Doddridge county sends a postal card through the mail to a licensed wholesale liquor dealer doing business as such in Wood county, directing a package of whisky to be sent him by express C.O.D. The order thus sent having been received' in Wood county, and having been complied with by delivering the package marked 'C. O. D.,' addressed to the purchaser in Doddridge county, held, that under the circumstances the sale was made in Wood county, and said wholesale merchant was not liable, under indictment in Doddridge county, for retailing liquors without license in Doddridge county.\\\"\\nIn the case of Pilgreen v. The State, 71 Ala. 368, it was held:\\n' ' When goods were forwarded through an express company, by instructions of the purchaser, marked 'C.O.D.,' the carrier is the agent of the purchaser to receive the goods from the seller, and the agent of the seller to collect the price from the purchaser, and the sale is complete when the goods are delivered to the carrier.\\\"\\nTo like effect are State v. Carl & Tobey, 43 Ark. 353, 51 Am. Rep. 565; James v. Commonwealth, 102 Ky. 108, 42 S. W. 1107; Garbracht v. The Commonwealth, 96 Pa. St. 449, 42 Am. Rep. 550, and many other cases.\\nWhile the above cases differ from the case at bar in this, that the agent of the express company is defendant in this prosecution and the seller who shipped the liquors by express was defendant, being prosecuted in the county where delivery was made by the common carrier to the purchaser, in those cases, yet the legal principles necessarily established by the above decisions are, that the sale is made where the liquors are received by the carrier, and not where delivery is made by the carrier to the purchaser, and that the agent of the express company, acting in good faith for his principal, makes no sale and is guilty of no offense under the law.\\nIt is the further contention of counsel for the state that appellant did not in this case act in good faith as the agent of the express company in making delivery of the liquor and in the collection of the proceeds, and that this contention is fully borne out by the evidence found in the record. We have carefully considered the evidence, and this contention would have great weight had this view of the case been submitted to the jury, but this is not the theory upon which the guilt or innocence of the defendant was submitted to the jury, as, under instruction No. 10, the good or bad faith of the defendant in the transaction, as well as the capacity in which he acted, became wholly immaterial.\\nIt follows that, for error committed in the charge of the court to the jury, the judgment must be revers\\u00e9d and a new trial awarded.\\nJohnston, Cunningham, JJ., concurring.\"}"

kan/1159763.json

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+"{\"id\": \"1159763\", \"name\": \"T. P. Pelham, et al., v. The Board of Commissioners of Finney County\", \"name_abbreviation\": \"Pelham v. Board of Commissioners\", \"decision_date\": \"1887-01\", \"docket_number\": \"\", \"first_page\": 101, \"last_page\": \"106\", \"citations\": \"36 Kan. 101\", \"volume\": \"36\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:51:05.385147+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"T. P. Pelham, et al., v. The Board of Commissioners of Finney County.\", \"head_matter\": \"T. P. Pelham, et al., v. The Board of Commissioners of Finney County.\\nWichita County, in 16th Judicial District. Under the provisions of chapter 81, Laws of 1886, approved February 20,1886, and which took effect February 26, 1886, Wichita county is within the sixteenth judicial district of the state, as said chapter 81, attaching that county to Finney county for judicial purposes, is the latest expression of the legislature, and therefore controlling.\\nOriginal Proceedings in Mandamus.\\nOn October 11, 1886, there was filed in this court the following petition, (omitting court and title:)\\n\\u201c Now come the plaintiffs, T. W. Pelham, James N. Mount, and Oren Clark, [omitting the names of twenty other plaintiffs,] and show to the court and aver that on the 4th day of October, 1886, said defendants, B. F. Smith, G. W. Wight and J. H. Waterman, were the duly elected, commissioned, qualified and acting members of and constituting the board of county commissioners of Finney county, Kansas, and that said board was then and there in Garden City, in said county and state, in session at its regular October meeting; that then and there'on said day there was 'presented to said board of county commissioners a petition signed by a majority of the electors of the unincorporated town or village of Leoti City, in Wichita county, state of Kansas, setting forth the metes and bounds of their town, village and commons, and stating that the number of the inhabitants of said town and village was three hundred and fifty, and praying that said town or village be incorporated as a city of the third class; with said petition, filing and presenting to said board the duly-verified affidavit of J. F. Ward, one of the publishers of the Leoti Lance, a weekly newspaper published and printed at Leoti City aforesaid, that said petition had been published in said newspaper at least once in each week for three consecutive weeks, to wit, on September 16, 1886, September 23, 1886, and September 30, 1886; that said board of county commissioners was satisfied on all points and requirements as set forth in sections 1 and 2, chap. LXVT, Laws of Kansas, 1886, but that said board of county commissioners wrongfully and without right refused to receive and act upon said petition and to grant the prayer thereof, on the sole ground that Wichita county, an unorganized county of the state of Kansas, was not attached to Finney county for judicial purposes.\\n\\u201cPlaintiffs further aver that at the regular July session, 1885, of said board, said county of Wichita was organized as a municipal township of Finney county; that Finney county for the two years last past, (said county being situated within the sixteenth judicial district of the state,) was the only organized county adjoining Wichita county, and was such at and during the last session of the legislature of the state of Kansas; that said sixteenth judicial district was the most convenient judicial district to Wichita county; that Wichita county has been and is attached to Finney county for judicial purposes, since February 26, 1886, and prior thereto; that it was the duty of said defendants as such board to receive and act upon said petition, and to grant said petition, and the performance of which the law specially enjoined on them as a duty, by virtue of their office, trust and station.\\n\\u201c Wherefore, said plaintiffs ask the court to grant, issue and award a peremptory writ of mandamus to said board of county commissioners, compelling and commanding said board to receive and act upon said petition, and to grant the prayer thereof, and make the proper order, declaring said town or village of Leoti City incorporated as a city of the third class, by the name and style of \\u2018 The city of Leoti City/ and designating in said order the metes and bounds thereof; also, to incorporate in said order an order ordering the first election in said city for city officers, designating the place where said election shall be held, and appointing three qualified electors of said city to act as judges of said election, and two other electors of said city to act as clerks, and three other electors of said city to act as a board of canvassers of said election returns; and to forthwith enter said order at length on the journal of the proceedings of said board of county commissioners, and cause the same to be published once in some newspaper printed in said city, at least one week before said city election; and for all other and proper relief.\\u201d\\nSubsequently, the following facts were agreed upon:\\n\\u201cIt is hereby agreed that on the 4th day of October, 1886, said defendants, B. E. Smith, G. W. Wight and J. H. Waterman, were the duly elected, commissioned, qualified and acting members of and constituting the board of county commissioners of Finney county, Kansas; that said board was then and there in Garden City, in said county and state, in session at its regular October meeting; that then and there on said day and date there was presented to said board of county commissioners a petition signed by a majority of the electors of the unincorporated town or village of Leoti City, situated in Wichita county, state of Kansas, setting forth the metes and bounds of their town, village and commons, and stating that the number of the inhabitants of said town or village was three hundred and fifty, and praying that said town or village be incorporated as a city of the third class, with said petition filing and presenting to said board the duly-verified affidavit of J. F. Ward, one of the publishers of the Leoti Lance, a weekly newspaper printed and published at Leoti City aforesaid, that said petition had been published in said newspaper at least once in each week for three consecutive weeks, to wit, on September 16, 1886, September 23, 1886, and September 30, 1886; that said board of county commissioners was satisfied on all points and requirements as set forth in sections 1 and 2, chapter LXVI, Laws of Kansas, 1886, but refused to receive and act upon said petition and to grant the prayer thereof on the sole ground that Wichita county, Kansas, (which it is admitted by all parties,) is an unorganized county, and is not attached to Finney county, Kansas, for judicial purposes.\\n\\u201cIt is further admitted, that at a previous session of said board, namely, the July term, 1885, thereof, and being a regular session, said county of Wichita was organized as a municipal township of Finney county. No objection is made by the defendants to anything in said proceedings as to fact or form, except that in view of the legislation of the past winter or session of 1886 of the legislature of the state of Kansas, to wit, ch. 87, ch. 120 and ch. 82, Wichita county is no longer attached to Finney county for judicial purposes, and that said board of county commissioners- had no jurisdiction to grant the prayer of the petition. It is further agreed, that at the time said laws were enacted, Finney county, in the sixteenth judicial district, was the only organized county adjoining Wichita county.\\u201d\\nThe opinion herein was filed January 7, 1887.\\nB. F. Simpson, Webb & Spencer, Thomas H. Bain, and Milton Brown, for plaintiffs.\\nW. B. TIopkins, county attorney, for defendants.\", \"word_count\": \"1837\", \"char_count\": \"10908\", \"text\": \"The opinion of the court was delivered by\\nHorton, C. J.:\\nThe sole question in this case is, whether the county of Wichita \\u2014 which is unorganized \\u2014 is within the sixteenth, or the twenty-third judicial district of the state.\\nAt the regular July session of the board of county commissioners of Finney county, held in 1885, the county of Wichita was organized as a municipal township of that county. Finney county is situated within the sixteenth judicial district, and is the only organized county adjoining Wichita county. By the provisions of chapter 87, Laws of 1886, approved February 18, 1886, and which took effect February 19, 1886, Wichita county was attached to Finney county for judicial purposes. Chapter 120 of the Laws of 1886, approved February 19, 1886, and which took effect February 20, 1886, created the twenty-third judicial district, comprising the organized counties of Rush, Ness, Ellis, and Trego, and the unorganized counties of Gove, St. John, Wallace, Lane, Scott, Greeley, and Wichita. It was therein provided that the terms of the district court of that judicial district should commence in the counties of Gove, St. John, Wallace, Lane, Scott, Greeley, and Wichita, after the same had been organized, at such time as the judge of the district should order. By the provisions of chapter 81, Laws of 1886, approved February 20, 1886, and which took effect February 26, 1886, the county of Wichita was again attached to Finney county for judicial purposes.\\nThe constitution of the state ordains that provision may be made by law for the increase of the number of judicial districts whenever two-thirds of the members of each house shall concur. Such districts shall be formed of compact territory and bounded by county lines, and such increase shall not vacate the office of any judge. (Art. 3, \\u00a714.) New or unorganized counties shall by law be attached for judicial purposes to the most convenient judicial district. (Art. 3, \\u00a719.)\\nAs Wichita county adjoins Finney on the north, and is an unorganized county, the legislature had ample power under the constitution to attach that county to the judicial district embracing Finney county.\\nIt will be conceded that the legislature had the authority to organize the sixteenth judicial district so as to comprise Wichita county. On the 19th of February the twenty-third judicial district was created, comprising certain organized counties, and also certain unorganized counties, including Wichita, with the provision, however, that courts should not be held in the unorganized counties until after the same had been organized, and at such time as the district judge should order. The act of February 20th, attaching the county of Wichita to Finney for judicial purposes, is the latest expression of the legislature, and as Finney county is a part of the sixteenth judicial district, the act attaching Wichita county to Finney county for judicial purposes attaches it to the sixteenth judicial district, and thereby puts Wichita county, for judicial purposes, within the sixteenth judicial district.\\nSuch construction does not violate any provision of the constitution of the state, and certainly gives full effect to the intent and purpose of the legislature. (In re Holcomb, 21 Kas. 628; The State v. Ruth, 21 id. 583; Ex parte Crawford, 12 Neb. 379.) Such construction does not repeal ch. 120, Laws of 1886, nor destroy the twenty-third judicial district created thereby, but it determines that the county of Wichita is not a part of that district under the terms of said ch. 81, approved later than said ch. 120.\\nLet the peremptory writ of mandamus be issued as prayed for.\\nAll the Justices concurring.\"}"

kan/1163366.json

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+"{\"id\": \"1163366\", \"name\": \"Susie Clark v. The Board of County Commissioners of the County of Mitchell et al.\", \"name_abbreviation\": \"Clark v. Board of County Commissioners\", \"decision_date\": \"1904-06-11\", \"docket_number\": \"No. 13,692\", \"first_page\": 542, \"last_page\": \"550\", \"citations\": \"69 Kan. 542\", \"volume\": \"69\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T00:25:27.231867+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"Susie Clark v. The Board of County Commissioners of the County of Mitchell et al.\", \"head_matter\": \"Susie Clark v. The Board of County Commissioners of the County of Mitchell et al.\\nNo. 13,692.\\n(77 Pac. 284.)\\nSYLLABUS BY THE COURT.\\n1. Practice, Supreme Court\\u2014Extension of Time for Service of Case-made. When the court or judge orders an extension of time for serving a case-made under the proviso to section 1 of chapter 380, Laws of 1903, the requirements of the law are satisfied if the order of extension be filed with the clerk of the court. The filing of such order constitutes \\u201cnotice of extension.\\u201d\\n2. Constitutional Law\\u2014Eminent Domain\\u2014Act of 1874. Chap ter 112, Laws of 1874 (Gen. Stat. 1901, \\u00a7\\u00a7 6053-6055), entitled \\u201cAn act to provide for opening private roads or highways,\\u201d is unconstitutional for the reason that it authorizes the taking of private property for private use.\\nError from Mitchell district court; R. M. Pickler, judge.\\nOpinion filed June 11, 1904.\\nReversed.\\nFrank A. Lutz, for plaintiff in error.\\nJ. E. Tice, for defendants in error.\", \"word_count\": \"2374\", \"char_count\": \"13518\", \"text\": \"The opinion of the court was delivered by\\nSmith, J.:\\nA motion to dismiss the petition in error has been made on the ground that the provisions of section 1, chapter 380, of the Laws of 1903, respecting the extension of time for serving a case-made, have not been followed. Judgment was entered on April 20, 1903. On that day the time to make and serve a case-made on defendants in error was extended until August 1, following. The latter were allowed until' August 10 to suggest amendments, the case to be settled upon five days' written notice by either party. Service was had on defendants in error June 29, 1903, and the case was settled and signed on July 17, both parties appearing by their attorneys. No amendments were suggested. The point is made that the record does not show that the notice of extension was filed with the clerk of the district court. Section 1 of chapter 380, Laws of 1903, requires that within ten days after the 'entry of judgment the case-made or a copy of it be served on all the adverse parties or delivered to the clerk of the court. This section contains the proviso \\\"that the court or judge before whom the case was tried may, on motion, order an extension of time for serving such case-made, which notice of extension shall be filed with the clerk of such court.\\\"\\nIt is evident that the word \\\"notice\\\" used above should be read \\\"order,\\\" and that the legislature intended the order of extension to be filed with the clerk of the court. If, however, the words of the statute must be taken literally, then we think the prder of extension made by the court or judge, and filed with the clerk, satisfied the requirement directing that \\\"notice of extension\\\" be given.\\nThe case on its merits involves the constitutionality of chapter 112, Laws 1874 (Gen. Stat. 1901, \\u00a7 6053-6055), which is entitled \\\"An act to provide for opening private roads or highways.\\\" It reads :\\n\\\"Section 1. That when any landholder, who has no road or highway, desires the benefit of a road or highway, such person may petition the county commissioners of the county in which such person resides to open a private lane or road to a public highway, when it shall be the duty of said commissioners to appoint three disinterested viewers to view and open a lane or road by the nearest and most practicable route to an established highway : provided, that said lane or road shall follow or run parallel with some section or subdivision line ; said road not to exceed two rods in width.\\n\\\"Sec. 2. Said viewers shall assess all damages, when damages are claimed, and the road shall be declared open when the damages, if any, are paid.\\n\\\"Sec. 3. That no portion of the expense of viewing and locating roads under this act shall be chargeable to the county or state, but shall be paid by the person for whose benefit the road is located.\\\"\\nUnder the express terms of this law a landowner may petition the county commissioners to \\\" open a private lane or road to a public highway.\\\" The title of the act restricts its operation to private highways, and, in view of chapter 108, Laws of 1874, now incor porated into chapter 89, General Statutes of 1901 (\\u00a7\\u00a76016-6072), providing for the opening of public roads, passed at the same session of the legislature, it is obvious that the later law was intended for purposes which could not be accomplished under the prior act. Sectipn 29 of chapter 108, Laws of 1874 (Gen. Stat. 1901, \\u00a76044), reads as follows :\\n\\\"Sec. 29. That whenever the premises of any person in this state shall be so completely surrounded by adjoining lands, the property of other persons, as to be without access to any public highway, then such person may petition the board of county commissioners of the county in which such premises lie for a road through some portion of the adjoining lands, and the board shall, on the presentation of such petition, proceed in accordance with the provisions of the foregoing sections to lay out such road, make returns of plats, and allow damages, if any should be held or allowed, provided said road shall not exceed twenty-five feet in width, and be laid out upon the section or half-section lines when practicable.\\\"'\\nUnder the above section of the general road law, ample relief is afforded to a landowner whose premises are so completely surrounded by adjoining lands as to be without access to any public highway. If his petition for a road be granted and the highway established, under the general law, it is public in character.\\nNo necessity.existed for the enactment of chapter 112, Laws of 1874, except for the purpose indicated by its title, which is to provide' for opening private highways as distinguished from public roads. The legislature emphasized the difference between private and public roads by the passage of the two acts.\\nUnder section 10 of chapter 108, Laws of 1874 (Gen. Stat. 1901, \\u00a76025), the county commissioners, upon the coming in of the viewers' report, are prohibited from opening the road unless when opened it will be of public utility. Again, by section 18 (Gen. Stat. 1901, \\u00a7 6033) all male persons between twenty-one and forty-five years of age, who have resided thirty days in the state, and who are capable of performing labor on public highways, are made liable to perform two days' work each year on the public roads, furnish a substitute, or pay $1.50 per day to the road overseer to be expended in repairs on the public roads. By section 20 (Gen. Stat. 1901, \\u00a7 6035) a failure to perform the two days' work or pay the amount stated is declared to be a misdemeanor punishable by fine. Under the rules of construction applicable to penal laws, no person would be amenable to fine for refusal to do work in improving or repairing a road laid out under \\\"an act to provide for opening private roads or highways,\\\" when the penalty for his default is found in a law applicable to public highways only.\\n\\\"We are asked to proclaim by judicial fiat that roads designated by the lawmakers as \\\"private highways\\\" are public in character. So to declare would be an aggressive and unwarranted invasion of the domain of legislation, from which courts are excluded. We are confined in jurisdiction and power to the field of interpretation of legislative acts. A law plain in its meaning, with a purpose clear and well-defined, without ambiguities, ought to rest secure from judicial distortion, leaving the responsibility for its failure to fulfil an expected object with its legislative creators.\\nA reference to section 3.of chapter 112, Laws of 1874, now under consideration, leaves no doubt of the personal and private nature of a road established .under its authority. It is provided that no portion of the expense of viewing and locating the road shall be chargeable to the county or state, \\\"but shall be paid by the person for whose benefit the road is located.\\\" This, in connection with the first section, which speaks of \\\"a private lane or road,\\\" leaves no latitude-for construing the language otherwise than according to its plain and obvious sense.\\nThe case of Lockerman v. Comm'rs of Chase Co., 27 Kan. 659, cited as authority by plaintiff in error, is somewhat confusing and difficult to understand. The-learned justice who wrote the opinion had before him the Compiled Laws of 1879, where the two chapters\\u2014 108 and 112 of the Laws of 1874\\u2014-are run together, making chapter 89 of the Compiled Laws of 1879. There is, however, in the opinion a citation, with seeming approval, of Bankhead v. Brown, 25 Iowa, 540, which is an authority of much weight on the question involved. The law passed on in the Iowa case was entitled \\\"An act for the establishment of private roads in Iowa,\\\" enacted in 1886. It is found in a. note at page 542 of the report, and does not differ materially from chapter 112, Laws of 1874, above-quoted. In holding the law unconstitutional, as an attempt to appropriate private property for private-use. Chief Justice Dillon said :\\n\\\"If the road now in question had been established as a public road under the general road law (as we .confess we do not see why it might not have been), . there would, in our minds, be no doubt as to its validity, although it does not exceed a half-mile in length, and traverses the lands of but a single owner. For the right to take land for a public road, that is, a road demanded by the public convenience, as an outlet to a neighborhood, or, it may be, as I think, for a single farmer without other means of communication, cannot depend upon the length of the road, or the number of persons through whose property it may pass.\\n\\\"With respect to the act of 1866, we are of opinion 'that roads thereunder established are essentially private, that is, are the private property of the applicant therefor, because,\\n\\\"First. The statute denominates them 'private \\u2022roads,' and is entitled 'An act to provide for establishing private roads.' If the roads established thereunder were not intended to be private, and different from ordinary and public roads, there was no necessity for the act.\\n\\\"Second. Such road may be established upon the petition of the applicant alone ; and he must pay the costs .and damages occasioned thereby, and perform such other conditions as to fences, etc., as the board may prescribe.\\n\\\"Third. The public are not bound to work or keep such roads in repair, and this is a very satisfactory test as to whether a road is public or private.\\n\\\"Fourth. We see no reason, when such a road is established, why the person at whose instance this was done might not lock the gates opening into it, or fence it up, or otherwise debar the public of any right thereto.\\\" ' ,\\nTo the same effect see Blackman v. Halves, 72 Ind. 515; Wild v. Deiget al., 43 id. 455, 13 Am. Rep. 399; Sadler v. Langham, and Moore v. Wright & Rice, 34 Ala. 311; Logan v. Stogsdale, 123 Ind. 372, 24 N. E. 135, 8 L. R. A. 58; Richards v. Wolf, 82 Iowa, 358, 47 N. W. 1044, 31 Am. St. Rep. 501; Dickey v. Tennison, 27 Mo. 373; Witham v. Osburn, 4 Ore. 318, 18 Am. Rep. 287; Varner v. Martin, 21 W. Va. 534; Healy Lumber Co. v. Morris, 33 Wash. 490, 74 Pac. 681, 63 L. R. A. 820; Ell. Rds. & Sts. (2d ed.) \\u00a7 192.\\nThe case of Masters v. McHolland, 12 Kan. 17, relied on by counsel for defendants in error, does not support their contention: There the road was laid out under the provisions of chapter 89, General Stat utes of 1868, a general road law relating to public highways. The court said :\\n\\\"Neither the findings nor the testimony show that this was other than a public road. Its condemnation was sought in the ordinary proceedings for condemning public roads. It was pronounced by both viewers and county board of public utility. The expense of opening is borne by the public. All damages assessed would have to be paid by the public. It affords one citizen at least a means of communication with the balance of community, and the balance of community a means of communicating with him.\\\"\\nA quotation is then made from Bankhead v. Brown, supra, to the effect that the taking of the land from one owner, necessary to establish a public highway to enable another to have an outlet to market, schools, and for other purposes, is not in a just sense the taking of private poperty for private use but for the general good.\\nThere would be no difficulty in sustaining the court below if the road in question had been laid out and established under the general road law, and the road found to be of public utility. The legality of the acts of the viewers and county commissioners rests on a law which is in conflict with the fundamental rule that private property can be appropriated for public use only. It is true that the courts have expressed divergent views on the proposition involved. See Sherman v. Buick, 82 Cal. 241, 91 Am. Dec. 557, 585, and note, in which it was conceded that the legislature is without power to establish private roads in the sense that they are the property of particular individuals. The court then proceeded to declare that such roads are public, perverting the language of the lawmakers to a meaning directly opposite that expressed in their enactment. We are content in the present case to rely on the sign to denote truly the thing signified, and not 'distort by strained interpretation plain and palpable legislative expression, or by far-fetched reasoning give to well-understood language a significance different from that conveyed by the words employed.\\nThe judgment of the court below will be reversed, with directions to proceed further in accordance with this opini\\u00f3n.\\nAll the Justices concurring.\"}"

kan/1179570.json

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+"{\"id\": \"1179570\", \"name\": \"Frank William Haas, Plaintiff, v. J. F. Hassig et al., etc., Defendants\", \"name_abbreviation\": \"Haas v. Hassig\", \"decision_date\": \"1926-01-09\", \"docket_number\": \"No. 26,299\", \"first_page\": 29, \"last_page\": \"31\", \"citations\": \"120 Kan. 29\", \"volume\": \"120\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T18:16:46.634532+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frank William Haas, Plaintiff, v. J. F. Hassig et al., etc., Defendants.\", \"head_matter\": \"No. 26,299.\\nFrank William Haas, Plaintiff, v. J. F. Hassig et al., etc., Defendants.\\nOpinion filed January 9, 1926.\\nJames B. Kelsey, of Leavenworth, for the plaintiff.\\nCharles B. Griffith, attorney-general, and W. C. Ralston, assistant attorney-general, for the defendants.\", \"word_count\": \"945\", \"char_count\": \"5772\", \"text\": \"The opinion of the court was delivered by\\nBurch, J.:\\nThe action is one of mandamus, to compel the state board of medical registration and examination to issue to plaintiff a license to practice medicine and surgery in this state.\\nPlaintiff was graduated from the Kansas City college of medicine and surgery, of- Kansas City, Mo., in May, 1920. In Missouri, the state board of health has supervision over the registration of practitioners of medicine and surgery. In November, 1923, after full investigation, the state board of health found the Kansas City college to be a nonreputable medical college. The college refuses to permit the American medical association to inspect it for purpose of classification, and is graded as a class C institution. The state board of this state approves the classification of the American medical association and, by rule adopted in 1918, does not recognize class C colleges. The licensing boards of forty-three states do not recognize the Kansas City institution. It claims to be an eclectic medical college, but the national eclectic association does not recognize it.\\nThe state of Arkansas has three licensing boards, one an eclectic medical board. This board recognizes the Kansas City institution, and in 1921 granted plaintiff a license to practice in Arkansas. The Kansas board discontinued reciprocal relations with the Arkansas eclectic medical board in 1917, and has not since renewed such relations.\\nThe Kansas statute provides for temporary permits to practice medicine and surgery. A portion of the statute follows:\\n\\\"Any such temporaiy permit so issued shall, when recorded in the office of the county clerk in the county in which he resides, authorize the person receiving the same to practice medicine or surgery in the same manner as a permanent license up to the commencement of the next regular meeting of the state board of medical registration and examination following the date of issue when such permit shall expire: Provided, That neither the said board nor the secretary thereof shall have power to issue more than one temporary permit to any one person, nor to extend any such permit beyond the time herein limited.\\\" (R. S. 65-1008.)\\nThe state board has a rule which reads as follows:\\n\\\"No temporary licenses are issued in Kansas. The secretary in his discretion may issue a permit to practice until the next meeting of the board, after the application is filed and the fee paid; but not more than one such permit can be issued to any one person.\\\"\\nIn February, 1923, plaintiff made application for a license, which was refused on the following ground:\\n\\\"The eclectic medical examining board of Arkansas, being in disrepute owing to its loose methods in the past, is no longer recognized by this board, and no application for reciprocity upon the indorsement from that board will be accepted or taken up for consideration by this board until such time as the Arkansas eclectic board will prove that they are upholding the standard of the profession as adopted by the medical profession and the boards of the states in the U. S.\\\"\\nA change in the personnel of the Kansas board occurred in June, 1923, and on August 6, plaintiff was granted a temporary permit. The permit expired on October 9, 1923. In October, 1923, plaintiff's application for a license was rejected. He has since made several applications for license, all of which have been rejected on the ground stated when the February, 1923, application was denied. For more than two years plaintiff has been practicing medicine and surgery in this state without either temporary permit or license.\\nIn June, 1923, twenty-four graduates of the Kansas City institution applied for licenses, on Arkansas credentials, and two of them were granted licenses. In October, 1923, eleven of those whose ap plications had been denied in June again applied, and two of them were granted licenses. Ten other applicants, coming from the Kansas City institution by the Arkansas route, were denied licenses. In June, 1924, thirteen of those who had been refused licenses in 1923, including plaintiff, renewed their applications, but the special means of access to the medical profession in Kansas did not function. The board as it has been constituted since February, 1925, has admitted no graduate of the Kansas City institution having only a license from the eclectic medical board of Arkansas.\\nPlaintiff charges the state board of medical registration and examination with abuse of discretion and arbitrary conduct discriminatory against him. It is true the board, as it was constituted from June, 1923, to February, 1925, was guilty of favoritism. It arbitrarily admitted four men in violation of its own rules. The record is barren of justification or excuse, and the influences operating to produce the result are not revealed. The present board has adhered to its rules, and what plaintiff desires is a writ of mandamus to compel it to act irregularly. The board had authority to promulgate, and has authority to enforce, the rules which exclude plaintiff from practicing medicine and surgery in Kansas. (Jones v. Board of Medical Examination, 111 Kan. 813, 208 Pac. 639.) The writ of mandamus will not be granted to compel a breach of those rules. Furthermore, if some dispensation were permissible, plaintiff is not a person to be considered favorably, because of his contumacy. For two years he has pertinaciously practiced medicine in this state in defiance of its laws.\\nThe writ is denied.\"}"

kan/1214067.json

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+"{\"id\": \"1214067\", \"name\": \"Edward C. White, Appellant, v. George W. White, Appellee\", \"name_abbreviation\": \"White v. White\", \"decision_date\": \"1927-11-05\", \"docket_number\": \"No. 27,562\", \"first_page\": 449, \"last_page\": \"455\", \"citations\": \"124 Kan. 449\", \"volume\": \"124\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:00:40.225079+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edward C. White, Appellant, v. George W. White, Appellee.\", \"head_matter\": \"No. 27,562.\\nEdward C. White, Appellant, v. George W. White, Appellee.\\n(260 Pac. 651.)\\nOpinion filed November 5, 1927.\\nWalter F. Jones, of Hutchinson, for the appellant.\\nC. E. Branine and H. B. Branine, both of Hutchinson, for the appellee.\", \"word_count\": \"2479\", \"char_count\": \"13882\", \"text\": \"The opinion of the court was delivered by\\nHutchison, J.:\\nThis is an action brought in the district court of Reno county by Edward C. White against his father, George W. White, to recover judgment of absolute ownership of an undivided five-eighths interest in all the property of the defendant, both real and personal, and to have such interest adjudged a trust affecting all the property of the defendant, and a trustee appointed to administer the property for the use and benefit of plaintiff and defendant. The plaintiff had paid over to his father the sum of $1,000 on the day he became 21 years of age, and commenced working for him under an oral agreement by which for his continued services he was to have a one-fourth interest in the father's property at the death of the father. This agreement was reduced to writing six or seven years later and the relation continued thereunder for nearly twenty years before this action was commenced. The answer admitted the execution of the contract, denied the breach thereof by the defendant, and prayed for a judgment upon a different construction thereof. The cas\\u00e9 was tried by the court without a jury, and judgment was rendered in favor of the plaintiff for $13,400 in lieu of his claimed share or interest in the property of his father, that amount being composed of the sum of $1,000 invested with interest and $25 per month for the nearly twenty years, with interest. The trial court denied the right of the plaintiff to the one-fourth interest claimed by him as his earned interest in his father's property, and also the one-half interest in trust as his share by inheritance. From this ruling the plaintiff appeals, and the defendant also appeals from the ruling of the court giving the plaintiff a judgment and lien for the specific amount in cash, instead of requiring plaintiff to take such amount in property, as it is claimed the contract provides.\\nMost of the evidence besides the contract itself was concerning the execution of deeds by the defendant and his wife, Georgia A. White, in 1921, when the defendant was very ill and not expected to live. They were made to the plaintiff and his sister, the only children of the defendant, giving the wife a life estate in three-fourths of the property, and were delivered to the wife, who died in March, 1925. After her death the defendant destroyed the deeds. The court declined to hear evidence as t'o the present value of the property and the details of expenses paid to each party and made no finding as to who was the cause of the breach or disagreement. The case hinges almost entirely upon the construction of the contract, prepared and written by the defendant in his own language and terms, which is as follows:\\n\\\"This contract and agreement, made and entered into on this 23d day of May, 1906, by and between George W. White and Georgia A. White, his wife, as parties of the first part, and Edward C. White as partie of the second part, all being of legal age and sound mind, and citizens of Reno county, Kansas.\\n\\\"We, as parties of the first part, does hereby agree to contract partie of the second part, and undivided one fourth of all our property both real estate and persinal that we own at the dait of this \\u2022intriment, together with one-fourth of all the increase or accumilation that we may accumilate, togher with Edward C. White's work and all of the property.\\n\\\"For a consideration of one thousand dollars cash in hand, and Edward C. Whites work from the time he become of age to the time of George W. Whites death, this one forth of the property and acumilation does not become a part of the estate but is Edward C. Whites property at the time of George W. Whites death, providing said Edward C. White remains with us and works with us harmoniesly until the death of George W. White, an at this time he may take his one forth of all the property by asuming one forth of all the indebtedness and divide it from the estate for the one thousand dollars and his work from the time he become of age to the time of George W. Whites death.\\n\\\"After second partie has received one forth of all the entire wealth that he have contracted for, he shall also hold his legal birth rights in the estate of George W. White as the law provides.\\n\\\"The second partie does also release all claims further than this against first parties, and also assumes one forth of the indebitness that is aginst their property at the time or dait of this contract which is to be paid of jointly, And if said second parties is unable to get along satisfactory until the death of said George W. White he may at any time quit with the first parties and draw twenty-five dolars per month for his survic from the time he become of age or the dait of this contract to the time he quits, with interest on the wages at eight per cent per annum, and also draw one thousand dollars with interest at eight per cent per annum from the time he become of age to the time he quits work, and this shall be all he gets for his labor from the time he began work to the time he quits. And in this event he shall not hold one forth of the property and one forth of the increas, but shall come in as a legal air and hold his legal rights only. In case Edward C. White should die faithfully performing his contract before said George W. White, then said Edward C. Whites widow or children shall draw one forth of the increas or accumilation and the one thousand dollars with interest at eight per cent per annum at his death for his famileys seport and education but they shall not draw the one forth that Edward S. White contracted for but it shall revert back to the first parties.\\n\\\"In any case that this contract may be closed or carried out the parties must take their part in. property and not in cash, and assume their preportion of the indebtedness.\\n\\\"The first and second parties may at any time thay see fit to sell any part of this property by agreeing to do so with one and nother can and this contract shall hold good on any thing they may invest in.\\n\\\"The value of property at the dait of this contract is twenty five thousand dollars that this contract is entended to convey the one forth to E'dward C. White. This contract is not to go on record, on account of misterfying the tiles and hendering the selling or martgaging of said property, but to be hold by the parties concerned.\\n\\\"This contract is not intended to convey any titles, but to agree to do so if said Edward C. White fulfills his part of said contract.\\n\\\"George W. White.\\n\\\"Georgia A. White.\\n\\\"Edward C. White.\\\"\\nThe appellant denominates the joint venture in which the father and son were embarked under the terms of the above contract as a partnership, and the termination thereof by the theory and judgment of the trial court as a forfeiture of his one-fourth interest in the joint enterprise, and reminds us that'courts abhor forfeitures and never enforce them unless necessary to enforce the law or do justice between the parties. There is no question about the rule as to forfeitures, but is it a forfeiture which deprived the appellant of his one-fourth interest under the contract? Is it not rather a contingency or alternative provision in the contract itself? The fifth paragraph of the contract specifically stipulates for what might be very properly called compensation or liquidated damages if he is unable to get along satisfactorily. .\\n\\\"Where parties, by agreement, fix the measure of recovery due from the one to the other, their agreement governs, and abstract principles of law relating to the measure of recovery when argeements are wanting are inapplicable.\\\" (Henshaw v. Smith, 102 Kan. 599, syl. \\u00b65, 171 Pac. 616.)\\nThe case just cited was quite like this one in many points. A tenant for over twenty years made permanent improvements upon the promise that if he had to move the owner would pay him for the improvements. The parties themselves have provided in their contract for the contingency of not getting along satisfactorily, and their arrangement or plan must be followed unless it is unconscionable. This same principle was fully discussed in a recent insurance case (Myers v. Liberty Life Ins. Co., 124 Kan. 191, 257 Pac. 933), where it was held the incontestable clause was not involved in the construe- t-ion of a separate and distinct suicide clause providing amount of payment in the happening of that contingency. So here, when it is concluded that they are unable to get along satisfactorily, then the fifth paragraph of the contract applies to the situation, and an amount easy of calculation takes the place of the one-fourth interest provided if the arrangement had continued to the death of the appellee. We think the trial court was right in so holding and finding there was due the appellant under the provision of the fifth paragraph $13,400 with interest, but we think the trial court erred in not giving force and effect to the entire provision made for such contingency. The remaining part of the provision is as much a part of the contract as that which could be calculated and reduced to dollars and cents. The return of the $1,000 with interest and the $25 per month with interest was a substitute for the one-fourth interest, but nothing more. The fifth paragraph, after outlining as to the return of the $1,000 and the payment of the $25 per month with interest, goes on to provide, in substance, that in this event he shall not hold one-fourth of the property and one-fourth of the increase, but shall come in as a legal heir and hold his legal rights. This is as much a part of what he was to get in case he was unable to get along satisfactorily as it is under the preceding paragraph in case he did get along all right until the death of the appellee.\\nWe have answered one of the two arguments of the counsel for appellee on this subject by showing this provision is a part and portion of what is to be due appellant in case of the contingency. The other argument is that in the cases cited by appellee on this subject the sole and only compensation of the parties claiming property under such promises was the real property to be devised. In many cases their entire living expenses from the start were furnished. In others the only service or return intended to be given was affection and obedience. If we are right in concluding that the contract gives to the appellant the right of inheritance just the same under the provision for the contingency as under the preceding paragraph or the plan generally, there is an abundance of authorities enforcing such provisions when made by contract, either written or oral, after the death of the owner of the property, and preserving and protecting such interest prior to his death. The facts and circumstances in the case of Dillon v. Gray, 87 Kan. 129, 123 Pac. 878, are very similar to those in this case, and the court enforced the contract- even against the claims of a second wife. See, also, Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147; Schoonover v. Schoonover, 86 Kan. 487, 121 Pac. 485; Taylor v. Taylor, 79 Kan. 161, 99 Pac. 814; Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743. The courts will protect such rights by injunction or otherwise in the lifetime of the owner, if there is danger of the property being disposed of or conveyed.\\n\\\"A son who has supported his father for a number of years under an agreement that he is to become at once- the owner of a tract of land, and that the legal title is to be vested in him at his father's death, by will or otherwise, and who in reliance thereon has improved the property and performed service the value of which cannot readily be estimated, is entitled to an injunction against the execution by his father of a deed to some one else.\\\" (Holland v. Holland, 89 Kan. 730, syl. \\u00b6 1, 132 Pac. 989.)\\nThere is room for discussion as to the extent of the interest of the son in his father's property by inheritance. At the time the contract was made and executed it was by law one-fourth; since the death of the mother it is one-half. The fact that the mother signed the contract strengthens the argument for one-half. On the other hand, there might have been other children bom to these parents which would have reduced the share of legal inheritance of this son. But we are basing this decision on the language of the contract as it was intended and necessarily understood when it was made, which was, of course, one-fourth, and such common understanding and intention is just as effective as if the contract had said one-fourth. This interest should be impressed as a trust upon the entire property of the appellee until his death, and a trustee should be appointed to administer such trust.\\nThe appellee contends that the court erred in making the allowance to the appellant in cash instead of requiring him to accept it in property. We think not. The language is, \\\"the parties must take their part in property and not in cash.\\\" This necessarily refers to the proportional part or portion in the property and not this money substitute for part or portion. We have assumed there is no controversy about the lot mentioned in the judgment, title to which is given by the trial court to appellant.\\nThe judgment of the trial court is affirmed in every particular except the quieting title in the appellee and failure to declare a trust estate in appellant of one-fourth of the entire estate of the appellee except the money judgment given appellant herein and indebtedness existing when this action was commenced. To that extent the judgment is reversed with instructions to render judgment accordingly, declare a trust, and appoint a trustee.\"}"

kan/1217227.json

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+"{\"id\": \"1217227\", \"name\": \"Harry E. Kelley v. Ella P. McBlain\", \"name_abbreviation\": \"Kelley v. McBlain\", \"decision_date\": \"1889-07\", \"docket_number\": \"\", \"first_page\": 764, \"last_page\": \"769\", \"citations\": \"42 Kan. 764\", \"volume\": \"42\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:33:20.355907+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"Harry E. Kelley v. Ella P. McBlain.\", \"head_matter\": \"Harry E. Kelley v. Ella P. McBlain.\\n1. Tax Deed \\u2014 Insufficient Proof of Existence. Where a tax deed is proved only by a supposed record copy of the same, found in the office of the register of deeds, and such copy purports to show that the deed was acknowledged before a probate judge, but does not show that such judge ever attached the seal of his office to the acknowledgment, and there is no evidence showing that such seal was ever attached, held, that the proof of the existence of the tax deed is insufficient.\\n2. Powee oe Attokney \\u2014 Certain Facts Not Proved by Recitals. Recitals in a power of attorney to make a deed of conveyance of land, and in the deed stating that the persons executing the power of attorney and the deed are the heirs of a person who previously owned the land, are not sufficient evidence as against a stranger to these instruments, of the death of the supposed ancestor, or that the persons represented to be his heirs are in fact his heirs.\\nError from Coffey District Court.\\nThis was an action brought by Harry E. Kelley against. Ella P. McBlain, to quiet title to certain real estate in Coffey county. \\\"Various proceedings were had in the case, as will appear from the following findings made by the trial court on the final trial of the case, which findings, with the conclusions of the court, are as follows:\\nCONCLUSIONS OF FACT.\\n\\u201c 1. On July 26,1879, Coffey county, Kansas, conveyed the land in controversy, by tax deed of that date, to one Kenderdine. Said tax deed was recorded in the office of the register of deeds in said county July 29,1879. Said deed was founded on the tax sale of 1875 for the delinquent tax of 1874.\\n\\u201c2. Previous to May 30, 1883, the said Kenderdine conveyed said land to the plaintiff, who immediately broke hedgerows around and upon the same, and caused stone to be hauled upon said land to be used in the construction of a foundation for a house; the stone, however, were never used for any purpose. Other than above stated, the land has always been and now is, open, unoccupied, and uncultivated.\\n\\u201c3. On May 30,1883, the plaintiff filed his petition in this case, and gave the defendant notice thereof by publication. The defendant was at that time, previous thereto, and ever since has been, a resident of the state of New York. The plaintiff obtained a decree against the defendant upon default, July 14,1883.\\n\\u201c4. On July 16, 1883, the plaintiff conveyed said lands to one McGinnis, who purchased the same for the sum of $640 in good faith, and he subsequently sold in good faith to one Hale, who purchased for value and in good faith, and now holds the same and claims to own it, and has incumbered it.\\n\\u201c5. On April 6, 1886, the defendant by appropriate proceeding under the statute obtained leave to, and filed an answer to the plaintiff\\u2019s petition herein, which answer contained a general denial, and also a cross-petition in ejectment, containing the usual averments, and claimed damages for the wrongful withholding of the premises.\\n\\u201c6. On December 6, 1886, defendant filed an amended answer, which in addition to the former one, alleged the sale of the premises by the plaintiff after obtaining said decree, and prayed for the valne of said land if the possession thereof could not be awarded.\\n\\u201c 7. The record of the tax deed upon which the plaintiff relies was placed in evidence instead of the original. The deed appeared to have been acknowledged before a probate judge, but no official seal was shown.\\n\\u201c 8. The time fixed in the final redemption notice for the final redemption of the land in controversy was less than three years from date of sale.\\n\\u201c 9. Each of the parties paid the tax of 1875 upon the premises, the plaintiff upon his certificate, and the defendant took a receipt therefor.\\n\\u201c 10. The defendant has a continuous and connected chain of title from the United States.\\n\\u201c11. One of the conveyances relied upon in said chain of title is a deed from the heirs of John Bement, who received the patent to said land from the United States. The only evidence tending to show the death of John Bement, or that the grantors in said deed were the heirs of said John Bement, was the recitals in said deed, which fully recited both the death and the heirship.\\n\\u201c12. When the plaintiff sold said land he received $640 therefor. At that date the land with a clear title was reasonably worth $950. At the date of this trial it was reasonably worth the sum of $1,625.\\n\\u201c13. The defendant has paid the taxes on said land each year since 1870, except the year 1874, for the delinquent tax of which year it was sold. In 1874 she sent the money to an agent in Kansas for the purpose of paying the tax of that year, but for some reason the payment was not made.\\u201d CONCLUSIONS ON LAW.\\n\\u201c1. Plaintiff's tax deed is invalid, because of defective final notice.\\n\\u201c 2. The land having passed after the decree to a purchaser in good faith, the defendant is entitled to recover a money judgment.\\n\\u201c 3. The measure of defendant's damages is the reasonable value of the land at the date of sale by plaintiff, to wit, $950, with interest, for which amount he ought to have judgment.\\u201d\\nUpon the foregoing findings and conclusions, judgment was rendered in favor of the defendant and against the plaintiff for $950, as principal damages, with $249.37 as interest there on, aggregating $1,199.37, and costs taxed at $29.50. To reverse this judgment the plaintiff brings the case to this court.\\nRedmond & Junkins, for plaintiff in error.\\nOtis D. Swan, and Kellogg & Sedgwick, for defendant in error.\", \"word_count\": \"1811\", \"char_count\": \"10217\", \"text\": \"The opinion of the court was delivered by\\nValentine, J.:\\nThis action was commenced originally as an action to quiet title, in which the plaintiff in error was the plaintiff and the defendant in error was the defendant. Service of summons was obtained only by publication. The title was quieted in the plaintiff upon a default on the part of the defendant, and immediately afterward the plaintiff sold and conveyed the land to an innocent purchaser. The judgment was afterward opened under \\u00a7 77 of the civil code. The defendant answered, setting up that she owned the land, and asking for damages. Judgment was afterward rendered in her favor, and the plaintiff now seeks a reversal thereof in this court. The plaintiff claims the land under a tax deed executed to Charles S. Kenderdine, and through intermediate conveyances down to himself. The defendant claims the land under the original patent issued by the United States to John Bement, and through intermediate conveyances dqwn to herself.\\nThe first question presented to this court for consideration is, whether the tax deed under which the plaintiff claims is valid. He proved his tax deed only by a supposed record copy of the same found in the office of the register of deeds. This copy purports to show that the tax deed was acknowledged before the probate judge of Coffey county, but it does not show that such probate judge ever attached the seal of his office to the acknowledgment. Without this seal, or some showing that the seal had been attached to the acknowledgment, the record of the deed is void, (See Meskimen v. Day, 35 Kas. 46, and the statutes hereafter cited.) And even the deed itself without the seal would be no evidence of title, and would probably be void. (See act relating to taxation, \\u00a7.138; act relating to conveyances, \\u00a7 7,15, 19 and 27, and other sections from 7 to 27; and the act relating to probate courts, \\u00a7 2.)\\nThere are other questions presented with reference to the tax deed, but as no valid proof was introduced in the court below that any tax deed of any kind was ever executed, it is unnecessary to consider them.\\nThe next question to be considered is, whether the defendant proved by any competent evidence that she had any title to the land. We think that she did not. It is admitted that the title to the land was originally in John Bement, and the defendant, in order to show that the title passed from him to her by a chain of intermediate conveyances, introduced in evidence, among other papers, what purported to be a power of attorney to make a deed, and a deed from heirs of John Bement; but there was no evidence introduced outside of this power of attorney and this deed that tended to prove that John Bement was dead, or that he had any heirs, or who his heirs were if he had any, or that the persons who executed this power of attorney and this deed were his heirs. And certainly, recitals in a power of attorney to make a deed of conveyance of land and in the deed stating that the persons executing the power of attorney and the deed are the heirs of a person who previously owned the 1 ^ land, are not sufficient evidence as against a stranger to these instruments of the death of the supposed ancestor, or that the persons represented to be his heirs are in fact his heirs. (Costello v. Burke, 63 Iowa, 361; same case, 19 N. W. Rep. 247; Potter v. Washburn, 13 Vt. 558; same case, 37 Am. Dec. 615.) There-is no evidence that John Bement himself ever executed any power of attorney, or any deed, or any other instrument affecting his real estate. The foregoing power of attorney, purporting to have been executed by the heirs of John Bement, was executed May 25, 1869, and the above-mentioned deed was executed August 2, 1869, and both were recorded on April 19, 1870; but no person ever took or held the possession of the property under either of these instruments; and the final trial in this case, at which both these instruments were introduced in evidence, was had in April, 1887. Evidently neither this power of attorney, nor the deed, nor the record thereof, can be considered as an ancient document, and could not be introduced in evidence or considered under the rules of evidence relating to ancient documents; and evidently there is sufficient evidence in existence to show whether John Bement is dead or not, and if dead, who are his heirs.\\nThere are other questions presented in this case, but with the views we have taken of the questions already discussed, we think it is unnecessary to consider the other questions.\\nThe judgment of the court below will be reversed, and the cause remanded for a new trial.\\nAll the Justices concurring.\"}"

kan/1220897.json

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+"{\"id\": \"1220897\", \"name\": \"The State of Kansas v. Ralph Bain\", \"name_abbreviation\": \"State v. Bain\", \"decision_date\": \"1890-01\", \"docket_number\": \"\", \"first_page\": 638, \"last_page\": \"641\", \"citations\": \"43 Kan. 638\", \"volume\": \"43\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:33:51.682596+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"The State of Kansas v. Ralph Bain.\", \"head_matter\": \"The State of Kansas v. Ralph Bain.\\nNuisance \\u2014 Description of Place \\u2014 Variance, Not Natal. The defendant was charged in a criminal action with keeping and maintaining a common nuisance \\u201cin a building known and designated as house No. 116 North Water street, in the city of Wichita, Sedgwick county, Kansas.\\u201d The house or building in which the nuisance was kept and. maintained answered to the above description in every particular, except that it had two numbers, one 116, and the other 118. There was a partition between the two parts of the house, but there were doors in the partition leading from, one part of the house into the other, and the two parts were occupied and used by the defendant as one house or one building. The principal entrance to the house waB into that part numbered 116, but the nuisance was actually kept and maintained in the other part, numbered 118. Held, That the variance between the charge and the proof was not fatal, and the verdict of the jury finding that the defendant was \\u201cguilty of keeping and maintaining a common nuisance as charged,\\u201d and a judgment of the trial oourt in accordance with such verdict, may be sustained.\\nAppeal from Sedgwick Court of Common Pleas.\\nThe case is stated in the opinion. From a conviction at the November term, 1889, the defendant Bain appeals.\\nMartin & Eckstein, for appellant.\\nL. B. Kellogg, attorney general, for The State.\", \"word_count\": \"1158\", \"char_count\": \"6585\", \"text\": \"The opinion of the court was delivered by\\nValentine, J.:\\nThis is a criminal prosecution upon information filed in the common pleas court of Sedgwick county, in which the defendants Ralph Bain and Henry Billman were charged with keeping and maintaining a common nuisance by keeping for sale and selling and permitting persons to resort for the purpose of drinking intoxicating liquors \\\"in a building known and designated as house number 116, North Water street, in the city of Wichita, Sedgwick county, Kansas,\\\" in violation of \\u00a713 of the prohibitory liquor law, as amended by \\u00a74 of chapter 165 of the Laws of 1887. (Gen. Stat. of 1889, \\u00b62533.) The defendants were found guilty, and the defendant Bain was sentenced to pay a fine of $300, and to be imprisoned in the county jail of Sedgwick county for sixty days; and he alone appeals to this court.\\nIt appears from the evidence that the defendants occupied and used a certain frame house or building on the east side' of North Water street, in the city of Wichita, which was numbered both 116 and 118. The south part was numbered 116, and the north part 118. Immediately south of the building is an alley, and immediately north of it is a vacant lot. The north part of the building was removed from another part of the city and placed where it now stands; and the south part was afterward built as an addition to the north part. There is a partition between the two parts, but there are doors in this partition leading from one part of the house into the other, and the two parts are occupied and used as one house or one building. The portion in which the intoxicating liquors were kept and sold was the back room of the north part, or, in other words, it was the back room of that part which was numbered 118; and the only question now presented is, whether the defendant, Bain, could be found guilty upon these facts and under the charge in the information. In other words, does the evidence prove the offense charged ? It does not appear that any intoxicating liquor was kept for sale or sold in that part of the building numbered 116. But in order to pass from the front of the building to the place where the liquors were kept for sale and sold, it was necessary to enter the door of that part numbered 116, as the front door of that part numbered 118 was kept closed and locked. The court below gave to the jury, among others, the following instructions:\\n\\\" In order to sustain a conviction in this case it is incumbent upon the state to show beyond a reasonable doubt that the defendants at the time of the filing of the information in this case, were the keepers, owners or proprietors of the kind of place as described in the information herein.\\n\\\" The court further instructs you that in order to convict the defendants of the offense charged in the information, there must be evidence that satisfies you beyond a reasonable doubt that the place described in the information is a place owned or kept by the defendants for the prohibited purpose mentioned in the information.\\n\\\" Before the defendants can be convicted of this charge, the state must prove beyond a reasonable doubt that the defendants were the keepers or owners of the particular place described in the information.\\n\\\" If you find from the evidence in the case that the building referred to in the evidence in this case is one building and the rooms in said building connected by doors, and that said building at the time of the commission of the offense charged in the information in this case was occupied and controlled by these defendants, or either of them, then said building will be considered by you as one building, although different numbers were placed over the front doors of said building.\\n\\\"In determining whether part of the building in question was numbered 116 and another part 118, you may consider the fact that there are two separate numbers on said building in determining whether they have been treated and known as two separate buildings/''\\nThe jury rendered a general verdict, which, omitting title and signature, reads as follows:\\n\\\"We, the jury impaneled in the above-entitled cause, do upon our oaths find the defendants, Henry Billman and Ralph Bain, guilty of keeping and maintaining a common nuisance, as charged in the information.\\\"\\nIt will be seen from the foregoing instructions of the court and the verdict of the jury, that it was the opinion of the court below and the jury that the building in question was one building, one house, and although it was numbered both 116 and 118, and the nuisance was carried on and maintained only in that part of the building or house which was numbered 118, yet that the description of the building or house as set out in the information, when taken all together, is not such a fatal misdescription of the place where the nuisance was kept and maintained as to render the information bad. In other words, it was thought in the court below that there was no fatal variance between the allegations contained in the information and the proof introduced on the trial. We cannot say that the court below or the jury erred.\\nThe judgment of the court below will be affirmed.\\nAll the Justices concurring.\"}"

kan/1223784.json

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+"{\"id\": \"1223784\", \"name\": \"The State of Kansas v. M. H. Ross\", \"name_abbreviation\": \"State v. Ross\", \"decision_date\": \"1908-02-08\", \"docket_number\": \"No. 15,476\", \"first_page\": 341, \"last_page\": \"348\", \"citations\": \"77 Kan. 341\", \"volume\": \"77\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:09:01.129658+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Kansas v. M. H. Ross.\", \"head_matter\": \"The State of Kansas v. M. H. Ross.\\nNo. 15,476.\\n(94 Pac. 270.)\\nSYLLABUS BY THE COURT.\\n1. Information \\u2014 Third Degree Arson \\u2014 Allegation of Malice. In an information charging arson in the third degree it is not necessary to allege that the burning was malicious, where the charge is that it was done wilfully, wrongfully, unlawfully, and feloniously.\\n2. Criminal Law \\u2014 Instructions. Where the general charge of the court fairly presents the case to the jury a party who desires an instruction upon some particular question should request it, and cannot predicate error upon the omission if he has not done so.\\n3. - Cross-examination of Witnesses. The latitude allowed on cross-examination must depend on the circumstances of the case, and necessarily rests largely in the discretion of the trial court; and upon a review of the evidence in this case it is held that the court did not exceed a proper discretion in this respect.\\n4. -Arson \\u2014 Evidence and Verdict. The evidence in this case examined and held to be sufficient-to sustain the verdict.\\nError from Montgomery district \\u2019 court; THOMAS J. Flannelly, judge.\\nOpinion filed February 8, 1908.\\nAffirmed.\\nOpinion denying a petition for a rehearing filed March 18, 1908.\\nFred S. Jackson, attorney-general, and Thomas E. Wagstaff, for The State.\\nHoward A. Scott, Joseph G. Waters, and John C. Waters, for appellant.\", \"word_count\": \"2416\", \"char_count\": \"13780\", \"text\": \"The opinion of the court was delivered by\\nBenson, J.:\\nThe appellant was convicted of arson in the third degree. He complains of the insufficiency of the information, that the court erred in the admission of evidence and in the giving of instructions, and challenges the sufficiency of the evidence to prove his guilt.\\nThe information charges that the defendant \\\"did then and there wilfully, wrongfully, unlawfully, knowingly, and feloniously, in the night-time, set fire to, and cause to be burned, the livery-barn belonging to one B. H. Toothman.\\\" It is argued that this information is defective because it does not contain an allegation that the burning was malicious. The statutory definition of arson in the third degree is: \\\"Every person who shall wilfully set fire to or burn . . . shall on conviction be adjudged guilty of arson in the third degree.\\\" (Gen. Stat. 1901, \\u00a7 2046.) The information is sufficient. (The State v. Jessup, 42 Kan. 422, 22 Pac. 627; The State v. Douglas, 53 Kan. 669, 37 Pac. 172; The State v. Shinn, 68 Kan. 638, 66 Pac. 650; The State v. Fooks, 29 Kan. 425.)\\nNor did the court err in failing to define \\\"malice,\\\" although arson at the common law is the malicious burning of the house of another. If the act was done wilfully, unlawfully,, and feloniously, it was done maliciously. \\\"Maliciously\\\" is the equivalent of \\\"wrongfully, intentionally, and without just cause or excuse,\\\" as ordinarily employed in criminal statutes, (The State v. Boies, 68 Kan. 167, 74 Pac. 630.) The court properly instructed the jury that \\\"wilfully\\\" meant the doing of the act purposely and intentionally, not accidentally, and stated all the elements of the crime.\\nA witness was allowed to testify that the appellant told , him that he had burned a hotel, and also a dwelling-house. The same witness testified that the appellant proposed to him to burn the barn in question, and the theory of the prosecution was that the relation, of previous conversations showing how like criminal purposes had been carried out was competent to characterize and lead up to the proposal for burning the barn in question. The witness was fully examined and cross-examined as to both conversations, thus giving the jury an opportunity to find what connection, if any, there was between them, and to determine the real significance of the proposal made to the witness and its bearing upon the issue.\\nA witness called by the appellant, whom he had known nearly all his lifetime, was asked whether the appellant had ever said anything to him about burning the barn. The state objected, but the witness was allowed to answer that he had not. Thereupon the question was asked: \\\"Did he ever at any time say anything to you in regard to burning any other property?\\\" The answer was: \\\"No, sir.\\\" He further testified that he had never talked with Defenbaugh, appellant's codefendant, about such burning before it occurred. On cross-examination the following questions were asked and answers given:\\n\\\"Ques. You say you never had any conversation with Mr. Ross about the buildings that had been burned down there in Havana ? Ans. No, sir.\\n\\\"Q. How many different buildings have been burned there? A. Well, now, I will have to count; I can't give it accurate. I will say there was about eight or nine; I don't know just how many.\\n\\\"Q. About eight or nine in that little village? A. Yes, sir. In what time do you mean \\u2014 all the time that I have known it?\\n\\\"Q. That is what I was asking you. During the last five years, how many have you heard of being burned? A. Well, I guess that number would about cover it; I don't know.\\n\\\"Q. About nine have been burned there inside of the last five years? A. Yes, sir.\\n\\\"Q. And you never have had any conversation with Ross about any of them? A. No, sir; I have not.\\n\\\"Q. What buildings have been burned there? A. Mr. Pendleton's warehouse and store, and Mr. Fralic's hotel, and Mr. Pendleton's barn, and I forget this man's name down there now \\u2014 he had a store burned, and Joe Nelsch's shop, and Ross Blair's store, and Mr. King's house, and the Chance hotel.\\n\\\"Q. Two hotels and two or three different stores; each one of them was burned at separate times, was it? A. No, a lot of them burned in a string one night.\\n\\\"Q. A lot of them. How many do you call a lot? A. Three or four of them. There was a blacksmith shop\\u2014\\n\\\"Q. What else? A. Well, there was what was known as the \\u2014 I can't call the man's name now; started in there. He works in this bam here. And burnt Joe Nelsch's shop and burnt the blacksmith shop and on down the line; and then Mr. Pendleton's store burned, and then the warehouse, and the brick building added to the store building and a drug store.\\n\\\"Q. How store and warehouse? A. Yes, sir.\\n\\\"Q. In the same fire? A. No, I don't think it was; I am not positive. It was none of my business, and I don't just remember.\\n\\\"Q. You don't remember? A. No, I think Mr. Pen dleton's store and warehouse burned at the same time; I am not positive.\\n\\\"Q. Where was the store located with reference to the warehouse? A. Well, the store was west of the warehouse.\\n\\\"Q. How far west? A. I don't know. About as far as from here to this\\u2014\\n\\\"Q. You say they were burned the same night? A. Yes, sir.\\n\\\"Q. Were these two hotels burned, the same night? A. No, sir.\\n\\\"Q. They were different fires? A. I don't remember just how those -buildings all burned, but I think there was two or three burned at a time, or three or four, something like that.\\n\\\"Q. How.many different fires have there been set? Have all of the fires burned buildings there? A. Now, then, I have n't got them down. I don't take dates. I have n't lived in town; but there has been several.\\\"\\nObjections that this was not proper cross-examination and that the testimony was incompetent were made and overruled. It must be remembered that a witness for the state had testified that the appellant had admitted to him that he had burned some of the buildings referred to in these questions, and it should be further noted that this witness had just been asked on direct examination whether the appellant had ever said anything to him about burning other buildings. This cross-examination called his attention to specific fires, and led to the inquiry whether the witness had talked with the appellant about any of them. Having stated generally that he had had no conversation about any fires, it was permissible on cross-examination to call his attention in this manner to particular instances. While the cross-examination was searching and pushed to great length on this collateral matter, we, cannot say that the court exceeded a proper discretion in admitting it. The question on direct examination which provoked this line of cross-examination was of doubtful propriety; but, having secured a favorable ruling thereon, the appellant cannot complain that the recol lection and credibility of the witness were pretty thoroughly tested. In such a situation the latitude allowed in cross-examination must depend on the circumstances of the case, and necessarily rests largely in the discretion of the trial court. (Bassett v. Glass, 65 Kan. 500, 70 Pac. 336; The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406.)\\nComplaint is also made that the court allowed conversations with the codefendant, Defenbaugh, to be testified to. As Defenbaugh was on trial for the same offense the testimony could not have been excluded, and in the instructions the court stated to the jury that such testimony was incompetent as against the other defendant unless they found that the two defendants were acting together, pursuant to a conspiracy, when such conversation occurred \\u2014 stating at length the rule in such cases.\\nComplaint is also made that two of the defendant's witnesses were arrested upon the order of the court in the presence of the jury, at the close of defendant's evidence, to his prejudice. The testimony tended to show misconduct on the part of the witnesses, and such probable participation in an effort to defeat justice in the case as to induce the court to take this action. While such arrest, when necessary to the ends of justice, ought to be made in the absence of the jury, we are unable to say from the record that there was an abuse of judicial discretion or that it prejudiced the substantial rights of the appellant.\\nIt is insisted that upon all the evidence there was no proof that the fire was of criminal origin, and that the evidence was insufficient to sustain the verdict. The testimony is quite voluminous. There was the fact of the fire, and the negative testimony of the employees and others about the barn. There was also proof showing the presence of appellant and Defenbaugh on the road and near the scene of the fire late that night. Added to this and other attendant circumstances were the positive statements of witnesses of the threats of the appellant, and of the admissions of Defenbaugh. True, the jury did not convict Defenbaugh, but there was evidence tending to show the guilt of the appellant that did not apply to his codefendant. One witness testified that appellant asked him whether his father's barn would not rent better if Toothman's barn was out of the way, and whether if it was burned Toothman would leave town, and whether it would be a good way to get rid of it to put a match in the window in the manger. This was two months before the fire. Another witness testified that appellant said he knew a plan to get the Toothman barn out of the way, and asked the witness what he would give to have it put out of the way; that he knew a fellow that would do the work; and wanted to know what he (the witness) would do if he should see the barn on fire in the night. There was also the testimony of the witness, before referred to, who swore that appellant proposed to him that if he would bum the barn he would surrender a note he held'against him. Testimony was also given tending to show the payment by appellant to a witness of $25 to testify to a supposed conversation implicating another party in the crime. The defendant Defenbaugh was with appellant late on the night of the fire, and near the place. The explanation of the appellant of his presence on the road that night was of a doubtful nature. His conversation with a witness after the fire also indicated his knowledge of its origin. The testimony, if it is to be believed, shows a singular recklessness, not only of conduct but of conversations, threats and admissions, and challenges careful scrutiny; but its weight and credibility were for the jury. If true, it certainly supports the verdict. Having been found to be true by the jury, and approved by the trial court, its sufficiency cannot be successfully controverted here.\\nCriticism is made because the instructions did not charge the jury that the presumption was that the fire was not criminal and that appellant could not be con victed on his threats alone, and that there was an omission of some other negative propositions. No requests for further instructions were-made, and those given fairly covered all matters of law necessary for. the information of the jury. (Crim. Code, \\u00a7 236; Gen. Stat. 1901, \\u00a7 5681.) Where the general charge fairly presents the case to the jury a party who desires an instruction upon some particular question should request it, and cannot be heard to complain of the omission if he has not done so. (The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406.)\\nFinding no error in the record prejudicial to the substantial rights of the appellant, the judgment is affirmed.\"}"

kan/1240172.json

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+"{\"id\": \"1240172\", \"name\": \"A. O. Stalnaker, Appellant, v. Daniel P. McCorgary and May Francis McCorgary, his wife, Appellees\", \"name_abbreviation\": \"Stalnaker v. McCorgary\", \"decision_date\": \"1950-11-10\", \"docket_number\": \"No. 37,909\", \"first_page\": 9, \"last_page\": \"13\", \"citations\": \"170 Kan. 9\", \"volume\": \"170\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:57:06.002137+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A. O. Stalnaker, Appellant, v. Daniel P. McCorgary and May Francis McCorgary, his wife, Appellees.\", \"head_matter\": \"No. 37,909\\nA. O. Stalnaker, Appellant, v. Daniel P. McCorgary and May Francis McCorgary, his wife, Appellees.\\n(223 P. 2d 738)\\nOpinion filed November 10, 1950.\\nGeorge Templar, of Arkansas City, argued the cause, and Earle N. Wright, of Arkansas City, was with him on the briefs for the appellant.\\nC. Wayne Stevens, of Ponca City, Okla., argued the cause, J. H. Taggart and E. J. Taggart, both of Wellington, and Roy E. Grantham, of Ponca City, Okla., were with him on the briefs for the appellees.\", \"word_count\": \"1652\", \"char_count\": \"9711\", \"text\": \"The opinion of the court was delivered by\\nParker, J.:\\nA. O. Stalnaker, a resident of Sumner county, brought this action under the declaratory judgment act (G. S. 1935, 60-3127 to 60-3132, inch) in the district court of such county for the purpose of obtaining an interpretation of an oil and gas mineral conveyance held by him on eighty acres of land in that county, claiming that under the facts set forth in his petition and the terms of such conveyance he was entitled to a portion of the proceeds received from the sale of oil and gas which was being produced from such tract of land.\\nThe defendants, Daniel P. McCorgary and May Francis McCorgary, the grantors in such mineral conveyance, filed a general demurrer to the petition which was sustained by the district court. Plaintiff appeals from that order and judgment.\\nAppellant's first specification of error is that the trial court erred in sustaining the demurrer to the petition.\\nNo useful purpose would be served by setting forth in detail the allegations of the petition which, we pause to add, by reference include a copy of the mineral conveyance in controversy. It suffices to say such pleading has been examined and that its allegations make it clearly appear there is an actual controversy between the parties with respect to the construction to be given the terms of the instrument in controversy. In that situation the established rule in this jurisdiction is that the petition-is sufficient as against a general demurrer and requires adverse parties to move forward with an answer in order that there may be a full and complete adjudication of the rights of the respective litigants based upon all the prevailing material facts and circumstances which may ultimately become involved in the remedial relief sought under provisions of the act.\\nLong ago in School District v. Sheridan Community High School, 130 Kan. 421, 286 Pac. 230, we held:\\n\\\"When an action is filed for a declaratory judgment and the petition sets forth facts showing an actual controversy concerning some matter covered by the statute, R. S. 60-3127, it is the duty of the district court to overrule the demurrer to die petition and proceed with the cause in accordance with the provisions of R. S. 60-3127 to 60-3132, inclusive.\\\" (Syl. 1.)\\nOur reasons for pronouncement of the rule announced in the case just cited were clearly set forth in the later case of City of Cherryvale v. Wilson, 153 Kan. 505, 112 P. 2d 111, where we said:\\n\\\"It is rare that a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment. Assuming there is an actual controversy between the parties, the petition should state the facts out of which the controversy arose, should state clearly the view or claim of plaintiff, and also state clearly the view or claim of the defendant, and the court should be asked to adjudicate the controversy. The appropriate pleading for defendant to file is an admission that the controversy arose from the facts stated by plaintiff, and that plaintiff's contention is correctly stated; also, that defendant's contention is correctly stated, if, of course, defendant agrees that the matters are so pleaded. If defendant thinks the facts giving rise to the controversy are not accurate or fully stated, or that the contention of the plaintiff or that the contention of the defendant is not accurately or fully stated, his answer should plead the facts and the contentions as he understands them to be. If defendant pleads the facts and the contention is contrary to that pleaded by plaintiff, plaintiff by reply should either admit those, or deny them. Normally, a declaratory judgment action is not well suited to a case in which there is a controversy as to how the contentions of the parties arose, or as to what they are; these things should be agreed upon in the pleadings, or some other form of an action should be brought.\\\" (pp. 510 and 511.)\\nIn Doman Hunting & Fishing Ass'n v. Doman, 159 Kan. 439, 445, 155 P. 2d 438, we again had occasion to pass upon the force and effect of a demurrer to the petition filed under the provisions of the declaratory judgment act and once more adhered to the rule announced in School District v. Sheridan Community High School, supra.\\nLater in Hurst v. Brown, 166 Kan. 496, 203 P. 2d 246, we definitely indicated there was but one test to be applied in determining the sufficiency of a petition in a declaratory judgment proceeding. At pages 502 and 503 of the opinion in that case we said:\\n\\\". . While a demurrer is rarely used in attacking a petition for declaratory judgment when a party elects to so employ it we have held the test to be applied in determining its sufficiency is whether such pleading sets forth facts which make it clearly appear there is an actual controversy between the parties and just what that controversy is. See City of Cherryvale v. Wilson, 153 Kan. 505, 112 P. 2d 111. When the first cause of action is measured by the foregoing rule we have little difficulty in concluding the trial court's action in overruling the demurrer on the ground now under consideration was proper.\\n\\\"This appeal, as we have seen, is limited solely to the sufficiency of the petition. No one contends the trial court rendered a declaratory judgment on the facts as pleaded. Notwithstanding, appellant seeks to enlarge the scope of our review by attempting to argue and have us decide the merits of the cause. This we cannot do. Under the statute (G. S. 1935, 60-3302) giving us appellate jurisdiction our province, in fact the extent of our power, is to reverse, vacate, or modify or sustain the trial court's judgment.\\\"\\nStill later and in the very recent case of Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P. 2d 221, we cited with approval all of the decisions to which we have heretofore referred and held:\\n\\\"When an action is filed for a declaratory judgment and the petition sets forth facts showing an actual controversy concerning some matter covered by the statute, R. S. 60-3127, it is the duty of the district court to overrule the demurrer to the petition and proceed with the cause in accordance with the provisions of R. S. 60-3127 to 60-3132, inclusive.\\n\\\"An amended petition framed with the view of obtaining remedial relief under the declaratory judgment act examined, considered and held, the demurrer thereto was improperly sustained.\\\" (Syl. j[ff 3, 4.)\\nAnd in the opinion said:\\n\\\"The soundness of this general rule seems obvious. While there may be cases in which no facts a defendant might plead and no contentions he might make could possibly affect the interpretation or validity of a statute or ordinance, we do not desire to so conclude in advance of an answer and hearing in this case. We are convinced it was not the intention of the declaratory judgment act to prejudge matters which might become material in determining the propriety or justice of the relief sought. . . .\\n\\\"In any event the amended petition clearly discloses an actual controversy exists and the order sustaining the demurrer must be reversed. . . .\\\" (pp. 732, 734.)\\nWe fail to discern any sound or plausible reason for relaxing the rule announced in the foregoing decisions and to which we have heretofore adhered. Indeed where a petition is filed under the provisions of the declaratory judgment act, except where it fails to set forth facts which clearly make it appear there is a controversy between the parties and just what that controversy is, we are unable to conceive of any situation where a demurrer, based on grounds such pleading fails to state facts sufficient to constitute a cause of action, should be sustained. This conclusion, we believe, is inescapable when due consideration is given to the fact the act itself clearly contemplates an adjudication based upon the rights of the respective parties after a full disclosure of all the pertinent existing facts and circumstances together with their contentions with respect thereto and not a finding or decision, as it must be conceded is true upon the sustaining of such a demurrer, that the party filing the petition has simply failed, by reason of the insufficiency of its allegations, to state what, in some other form of action, would deprive him of a full and complete hearing upon the merits of the existing controversy.\\nWhile not essential to a decision of the cause it should perhaps be here stated the instant case furnishes another illustration of the soundness of the general rule to which this court is committed. The parties are not in agreement as to certain facts set forth in the petition and their briefs are replete with contentions respecting the weight to be given those facts in determining their respective rights under the terms of the involved mineral conveyance.\\nSince the petition sets forth an \\\"actual controversy\\\" between the parties as to their respective rights under the involved mineral conveyance the district court should have overruled the demurrer and proceeded with the cause as contemplated by the provisions of G. S. 1935, 60-3127 to 60-3132, inclusive. Therefore the judgment is reversed with directions to overrule the demurrer and proceed as herein indicated.\"}"

kan/12417036.json

@@ -0,0 +1 @@
+"{\"id\": \"12417036\", \"name\": \"State v. LaPointe\", \"name_abbreviation\": \"State v. LaPointe\", \"decision_date\": \"2016-02-18\", \"docket_number\": \"112,019\", \"first_page\": 1080, \"last_page\": \"1080\", \"citations\": \"303 Kan. 1080\", \"volume\": \"303\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:37:42.971753+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. LaPointe\", \"head_matter\": \"State v. LaPointe\\n112,019\\n02/18/2016\", \"word_count\": \"11\", \"char_count\": \"66\", \"text\": \"Granted.\\n51 Kan. App. 2d 742\"}"

kan/12418102.json

@@ -0,0 +1 @@
+"{\"id\": \"12418102\", \"name\": \"Strong v. State\", \"name_abbreviation\": \"Strong v. State\", \"decision_date\": \"2016-03-31\", \"docket_number\": \"112,540\", \"first_page\": 1023, \"last_page\": \"1023\", \"citations\": \"304 Kan. 1023\", \"volume\": \"304\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T02:20:33.470366+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Strong v. State\", \"head_matter\": \"Strong v. State\\n112,540\\n03/31/2016\", \"word_count\": \"7\", \"char_count\": \"55\", \"text\": \"Denied.\\nUnpublished\"}"

kan/12419358.json

@@ -0,0 +1 @@
+"{\"id\": \"12419358\", \"name\": \"State v. Button\", \"name_abbreviation\": \"State v. Button\", \"decision_date\": \"2015-09-14\", \"docket_number\": \"111,379\", \"first_page\": 1013, \"last_page\": \"1013\", \"citations\": \"302 Kan. 1013\", \"volume\": \"302\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T01:42:28.540348+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Button\", \"head_matter\": \"State v. Button\\n111,379\\n09/14/2015\", \"word_count\": \"7\", \"char_count\": \"55\", \"text\": \"Denied.\\nUnpublished\"}"

kan/12420556.json

@@ -0,0 +1 @@
+"{\"id\": \"12420556\", \"name\": \"State v. Prator\", \"name_abbreviation\": \"State v. Prator\", \"decision_date\": \"2015-09-23\", \"docket_number\": \"111,103\", \"first_page\": 1019, \"last_page\": \"1019\", \"citations\": \"302 Kan. 1019\", \"volume\": \"302\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T01:42:28.540348+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Prator\", \"head_matter\": \"State v. Prator\\n111,103\\n09/23/2015\", \"word_count\": \"7\", \"char_count\": \"54\", \"text\": \"Denied\\nUnpublished\"}"

kan/1242123.json

@@ -0,0 +1 @@
+"{\"id\": \"1242123\", \"name\": \"Oliver P. Allen, Appellee, v. R. W. Bowling, Appellant\", \"name_abbreviation\": \"Allen v. Bowling\", \"decision_date\": \"1952-11-08\", \"docket_number\": \"No. 38,702\", \"first_page\": 485, \"last_page\": \"490\", \"citations\": \"173 Kan. 485\", \"volume\": \"173\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:16:31.024247+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Oliver P. Allen, Appellee, v. R. W. Bowling, Appellant.\", \"head_matter\": \"No. 38,702\\nOliver P. Allen, Appellee, v. R. W. Bowling, Appellant.\\n(249 P. 2d 679)\\nOpinion filed November 8, 1952.\\nArchie T. MacDonald, of McPherson, argued the cause, and Russ B. Anderson, of McPherson, was with him on the briefs for the appellant.\\nHoward W. Harper, of Junction City, argued the cause, and Lee Hornbdker, of Junction City, and L. H. Ruppenthal, of McPherson, were with him on the briefs for the appellee.\", \"word_count\": \"2178\", \"char_count\": \"13023\", \"text\": \"The opinion of the court was delivered by\\nWedell, J.:\\nThis was an action by one real estate broker against another to recover one half of the commission for the sale of a ranch. Plaintiff prevailed and defendant has appealed.\\nThe action was tried by the district court without a jury. Appellant, R. W. Rowling, lived in McPherson, and appellee, Oliver P. Allen, lived at Alma. Appellant's principal contention is that the minds of the parties had not met on the subject of any particular ranch or on a division of the commission and hence there was no valid and enforceable contract. In order to avoid needless repetition that subject will be treated later.\\nThe trial court made findings of fact and conclusions of law as follows:\\n\\\"1. Plaintiff and defendant are duly licensed real estate brokers in accordance with the laws' of the state of Kansas.\\n\\\"2. In the late summer of 1950, one Dave Weaver of Geary County, Kansas, listed his ranch for sale with plaintiff, fixed the sale price at $100,000 and agreed with him the realtor's commission would be $2,000. The ranch is also known as the Weaver ranch, the Powers ranch, and as the Deerhorn ranch.\\n\\\"3. On October 15, 1950, the defendant wrote a letter to plaintiff stating he had three buyers for ranches and described in general terms what his buyers wanted and requested plaintiff to write a full description and price of any places he had available and suggested a division of the commission.\\n\\\"4. On October 22, 1950, plaintiff replied to defendant's letter stating he would be glad to work with defendant on a fifty-fifty basis by dividing the commission equally, and gave defendant a full description of the ranch, less its name and legal description.\\n\\\"5. On October 24, 1950, defendant wrote plaintiff accepting plaintiff's terms and suggested a trip by his buyer to see the ranch.\\n\\\"6. On October 26, 1950, plaintiff met defendant and one Julian Sundgren at Alma, and at defendant's request plaintiff gave him and Sundgren a more complete description of the Weaver ranch. Defendant stated he knew of the place and that Sundgren would not be interested in it; that the place had no water, the pastures were spotty and it would not be satisfactory to Sundgren. Plaintiff then described to defendant and Sundgren all the improvements recently made at the ranch; how Dave Weaver had brought in electricity, built ponds, sprayed the pasture and fully described the present condition of the ranch, and suggested they go and look at it, after which defendant stated that Sundgren would not be interested, and that he and Sundgren would return to McPherson via Council Grove, Kansas, and left plaintiff. That immediately after defendant and Sundgren left plaintiff they drove directly to the Weaver ranch, viewed it, and thereafter the Sundgren family purchased it for $100,000 and agreed to pay the realtor's commission of $2,000. One thousand dollars of this commission has been paid to defendant and the said Sundgren has intervened herein and paid the remaining $1,000 into court.\\n\\\"7. That defendant and Julian Sundgren drove to Alma to meet plaintiff and to view the ranch about which plaintiff had written defendant; that prior to the conversation between the three of them at Alma defendant had not mentioned the Weaver ranch to Sundgren either as the Weaver ranch or by any other name.\\n\\\"8. Defendant testified he had the Weaver ranch listed for sale, but offered no other evidence on the subject. Weaver testified he had not listed it with defendant.\\n\\\"9. Defendant testified when he and Sundgren viewed the ranch on October 26, 1950, it was a different place than when he last saw it; that it had been improved a great deal; that the sumac had been sprayed and was dead; that the lespedeza looked fine.\\n\\\"Conclusions of Law\\n\\\"1. Defendant agreed with plaintiff to divide equally any commission earned if plaintiff could locate a ranch which his buyer would take. Plaintiff did this and is entitled to one-half tire commission.\\n\\\"2. The plaintiff should have judgment against defendant for $1,000 and costs, and the sum of $1,000 paid into court by Gene Sundgren as intervener should be paid over to plaintiff.\\\"\\nAppellant filed no motion for judgment on those findings and does not now contend they compel judgment in his favor. He filed a motion for additional findings, to strike and to modify portions of some of the findings made and for judgment on the ground the evidence disclosed no valid contract. We deem it unnecessary to encumber the record with a lengthy recitation of the various portions of the motion. A thorough study of the entire record discloses that although there may be some slight inaccuracies in a few statements contained in the findings they are npt of a character which adversely affects appellant's substantial rights. Under the mandate of our civil code this court is obliged to disregard the complaints. (G. S. 1949, 60-3317.) See numerous cases collected under the statute. Touching additional findings which appellant sought we observe they are partially included in those made by the court. Those not included will be treated under a discussion of appellant's contention there was no valid contract. We conclude the court did not commit reversible error in overruling appellant's motion attacking the findings made.\\nWhat about appellant's contention the evidence disclosed no enforceable contract for a division of the commission? Appellant argues there was no agreement concerning the sale of a specific ranch or on the exact division of the commission. Relative to the first part of this contention appellant is correct insofar as communications by mail prior to the personal interview at Alma are concerned. Appellant's first inquiry of appellee by letter of October 15 did not elicit the name or names of appellee's clients who had listed ranches with him for sale and appellee's answer on October 22 did not supply that information. Appellant requested the court to make the following findings:\\n\\\"(1) That plaintiff, after describing the Weaver ranch in detail, at the cafe in Alma, then for the first time identified it as the ranch owned by Dave Weaver; that defendant thereupon told plaintiff that he had the ranch listed, and had shown it, and that he did not need plaintiff's help in making the sale.\\n\\\"(2) That plaintiff testified that he did not intend to let the defendant know the identity of the ranch in his, plaintiff's letter of October 22, 1950, because he was afraid that the defendant might try to go around plaintiff on plaintiff's listing of the Weaver ranch. The defendant testified that he was not aware that the ranch to which plaintiff referred in his letter of October 22d was the Weaver ranch until it was identified by the plaintiff in the restaurant at Alma, Kansas.\\\"\\nFor the purpose of our review we may consider the requested findings as having been made. A part of the first above requested finding is contained in the court's finding No. 7. Did the fact appellee refused to state the name of the owner of the> ranch in the correspondence defeat his right of recovery? Manifestly it did not. The reluctance of appellee to state the ranch owner's name in the correspondence may have been well founded, as will presently appear. There was no written or oral listing of the ranch with appellant. Weaver, the ranch owner, testified, in substance: He had not listed it for sale with appellant; his only previous contact with appellant had been in the spring of 1949, long prior to the improvements of the ranch, when appellant, another broker and a buyer had driven to the ranch on one occasion and asked him what he would take for it. The trial court was not obliged to resolve the conflicting evidence as to a listing of the ranch with appellant in the latter's favor.\\nMoreover, the fact appellant did not know from the correspondence whose particular ranch appellee had in mind ultimately became quite immaterial. He discovered that from appellee in the personal conference at Alma. Notwithstanding appellant testified he then notified appellee he was familiar with the ranch, had listed it and had shown it, that he did not need appellee's help and was not interested in the ranch, the fact remains appellee supplied him with all the new information concerning the complete overhauling and the vast improvements which had been made on the ranch. Appellant promptly acted upon the information so obtained and made a deal for the ranch.\\nIt is true that in the personal conference at Alma appellant expressed disinterest in the ranch and that he and Julian Sundgren thereafter left appellee. But notwithstanding such apparent disinterest what did they do? They drove to the north end of the square in Alma, turned around, came back and parked in front of a real estate or abstract office. Appellant entered the office and Julian Sundgren remained in the car. ' What transpired in that office is not disclosed. As Sundgren started toward the office, appellant came out. Appellant and Julian Sundgren then drove to the Weaver ranch, examined it and found the various improvements concerning which appellee had advised them. They were impressed and the ranch was obtained in a trade transaction. Title was taken in Eugene Sundgren, brother of Julian Sundgren who had accompanied appellant to the ranch. Manifestly the fact appellee had not advised appellant of the ranch owner's name in the previous correspondence did not, under the circumstances related, render the transaction invalid on the theory no specific ranch had been named in the correspondence.\\nWas the contract invalid by reason of a failure to agree on a division of the commission? In appellant's first letter of October 15, 1950, to appellee in which he inquired whether appellee had a ranch for sale appellant made no mention whatever of the amount of the commission which appellee was to receive for the sale of any ranch listed with him. Appellee's answer of October 22 contained a description of a 2,000 acre ranch including its improvements and stated it would cost $50 per acre or $100,000; that he had arranged to show the ranch to another party the next week.\\nConcerning the division of the commission appellee expressly stated in that letter as follows:\\n\\\"If the deal does not go through, and you have a party you think it would fit will be glad to work with you on SO, 50, split on commission.\\\" (Our italics.)\\nAppellant's next letter of October 24 to appellee did not reject appellee's specific offer to work with appellant on the basis of splitting that commission equally but merely suggested:\\n\\\"We should get 5% on 1st $5,000 \\u2014 25\\u00e1% on balance.\\\" (Our italics.)\\nAppellant and Julian Sundgren reached Alma October 26, the day appellee received appellant's last letter. Obviously when appellant then pretended he was not interested in the Weaver ranch nothing further was said by appellee concerning the commission basis upon which he had agreed to assist appellant. The Weaver ranch was listed for sale with appellee and not with appellant and on the specific basis of a $2,000 commission to appellee. This appellant knew. Furthermore-in the transaction as finally consummated it is admitted the commission agreed upon was exactly $2,000. The only difference was that the purchaser, rather than Weaver, the ranch owner, agreed to pay it under the terms of the trade. The purchaser, however, paid appellant only $1,000. He refused to pay him the remaining $1,000 and deposited it with the clerk of the court to abide the decision of the court.\\nIt requires no citation of authorities to demonstrate the principle contended for by appellant that a valid contract requires a meeting of the minds of the parties. It is just as well established that an agreement and its terms may be ascertained by a combination of written communications and the acts of the parties. We think the court was .justified in believing the correspondence together with the conduct of the parties precluded appellant's contention there was not an agreement on the amount of the commission and division thereof originally specified by appellee in his letter to appellant.\\nAnother defense asserted in appellant's answer was that the contract was entirely without consideration. That defense cannot be sustained. Appellee's services constituted ample consideration for the contract. Except for the new information appellee supplied, appellant's testimony discloses he would not have taken his client to the ranch. No substantial rights of appellant were prejudiced in the course of the trial.\\nThe judgment must be affirmed. It is so ordered.\"}"

kan/12572032.json

@@ -0,0 +1 @@
+"{\"id\": \"12572032\", \"name\": \"STATE of Kansas, Appellee, v. Grant WILSON, Appellant.\", \"name_abbreviation\": \"State v. Wilson\", \"decision_date\": \"2018-12-14\", \"docket_number\": \"No. 114,567\", \"first_page\": 841, \"last_page\": \"850\", \"citations\": \"431 P.3d 841\", \"volume\": \"431\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-27T21:04:09.385096+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Kansas, Appellee,\\nv.\\nGrant WILSON, Appellant.\", \"head_matter\": \"STATE of Kansas, Appellee,\\nv.\\nGrant WILSON, Appellant.\\nNo. 114,567\\nSupreme Court of Kansas.\\nOpinion filed December 14, 2018\\nCaroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.\\nKeith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.\", \"word_count\": \"4451\", \"char_count\": \"28001\", \"text\": \"The opinion of the court was delivered by Biles, J.:\\nGrant Wilson appeals a modification made to his criminal sentence. He contends the prosecutor misstated to the sentencing court the facts underlying his conviction and the facts of a court case cited by Wilson as legal authority against the modification. A divided Court of Appeals panel could not agree on the errors or the appropriate standard of review to assess any resulting prejudice.\\nState v. Wilson , No. 114567, 2016 WL 7324427 (Kan. App. 2016) (unpublished opinion). We granted review to consider those questions and now remand the case to the district court for a new hearing on the State's motion to correct an illegal sentence.\\nWe hold prosecutorial error may occur during a sentencing proceeding before a judge. We also hold the analytical framework from State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016), applies in both the guilt and penalty phases of any trial-whether before a jury or judge. And based on the Sherman test, we hold there was reversible error at Wilson's sentencing hearing.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nIn 2007, Grant Wilson pled guilty to aggravated indecent solicitation of a child. He later failed to meet his probation terms and was eventually ordered to serve his underlying prison sentence of 32 months. In 2015, the State moved to correct an illegal sentence, arguing the district court erred by not imposing lifetime postrelease supervision as part of Wilson's original sentence. At the hearing on that motion, Wilson claimed lifetime supervision was grossly disproportionate to his offense, amounting to cruel or unusual punishment prohibited by Section 9 of the Kansas Constitution Bill of Rights. The court rejected Wilson's argument based on State v. Freeman , 223 Kan. 362, 367, 574 P.2d 950 (1978), and granted the State's motion.\\nOn appeal, Wilson raised two issues: (1) whether the prosecutor deprived him of a fair sentencing hearing by misstating facts in his case and those in an unpublished Court of Appeals decision cited as authority for Wilson's Freeman claim; and (2) whether the district court erred by rejecting his disproportionality argument under Freeman . The first claim intersects with the second to the extent Wilson argues the prosecutor's comments denied him a fair hearing on the following Freeman factor:\\n\\\"The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment.\\\" Freeman , 223 Kan. at 367, 574 P.2d 950.\\nWilson contends this factor supported his disproportionality argument because (1) the 13-year-old victim snuck out of her house and joined some high school students for a party where the crime occurred; (2) Wilson had just turned 18 years old and lacked the ability to make a \\\"good decision\\\" because of his age; (3) Wilson acknowledged he made \\\"a terrible mistake\\\" in having sex with the underage victim; (4) Wilson worked at his father's sprinkler installation business after getting out of prison and had a child he was trying to parent; and (5) there was little danger of Wilson reoffending.\\nThe State set the stage for this prosecutorial error claim by replying to Wilson's arguments during the following colloquy:\\n\\\"THE COURT: . so we now get to Mr. Wilson's particular crime and I know I've had other cases in which there was violence involved.\\n\\\"There does not appear that [violence] happened in this case but Mr. Wilson was certainly of the appropriate age to be held responsible and the fact that he didn't, you know, he put himself in a situation. I think there was drinking involved, is that right, [Prosecutor]?\\n\\\"[PROSECUTOR]: Judge, actually that's one reason, if I can address the Court just briefly about those facts, with Mr. Wilson, he raped and sodomized a 13 year old girl. He digitally raped her and he sodomized her . Those are extreme crimes of violence. Your Honor, the facts of this case, the State charged only the aggravated indecent solicitation and agreed to a border box finding to place him on Community Corrections. He was placed on Community Corrections, violated the terms of his Community Corrections and was sentenced by the Court to go to Labette. He went to Labette, failed to complete Labette and his prison sentence was executed so . he's clearly shown he's not necessarily amenable to do, it's a crime of violence and that distinguishes itself completely from [ State v. ] Proctor [No. 104,697, 2013 WL 6726286 (Kan. App. 2013) (unpublished opinion),] which involved a police officer impersonating himself to be a child and the defendant showing up at the house to meet the child .\\n\\\"THE COURT: All right. I saw back here when I was doing a bond condition that he had a rape and aggravated sodomy [at] that point in time back in 26 February, 2007. I'm not satisfied that, I am satisfied rather that the facts and circumstances of this crime do not cry out that this would be an unconstitutional sanction so I'm going to grant the State's motion. I find that the sentence was illegal; that the Court is required to sentence Mr. Wilson to lifetime post release so I pronounce lifetime post release.\\\" (Emphases added.)\\nOn appeal, the State suggested the digital rape and sodomy comments were based on police reports, but those reports were not in the appellate record. The State acknowledged reciting the wrong facts about the Proctor decision.\\nThe panel majority's holdings and the dissent's arguments\\nThe panel majority first considered whether prosecutorial misconduct can occur in the context of a hearing on a motion to correct an illegal sentence. The majority concluded it could, so appellate review was proper. It cited other Court of Appeals decisions that had considered similar claims arising during hearings before a judge. Wilson , 2016 WL 7324427, at *4 (discussing State v. Serrano-Garcia , No. 103651, 2011 WL 4357804, at *3-4 [Kan. App. 2011] [unpublished opinion], State v. Roland , No. 101879, 2010 WL 1078454, at *1-3 [Kan. App. 2010] [unpublished opinion], State v. Clelland , No. 93001, 2005 WL 1805250, at *3-5 [Kan. App. 2005] [unpublished opinion] ).\\nThe majority then considered whether to use the modified two-step analysis adopted in Sherman but ultimately decided to apply the \\\"old\\\" pre- Sherman test. It did so because Sherman was decided after the panel's oral arguments, which meant the parties had not had an opportunity to brief or argue its possible impact. Even so, the majority observed \\\"application of the new framework would not make a difference in the outcome.\\\" 2016 WL 7324427, at *4.\\nMoving to the merits, the majority held the prosecutor's comments that Wilson digitally raped and sodomized a child were unsupported by the record. It observed: \\\"The factual basis for the plea, accepted by the court, consisted solely of Wilson's admission that he 'had sex with a minor under the age of 14 years old.' \\\" 2016 WL 7324427, at *5. No other evidence was presented.\\nAs to the prosecutor's misstatement about the facts in Proctor , which the State conceded, the majority noted: \\\" Proctor involved no impersonation and no police officer. Instead, Proctor was a 19-year-old male who took advantage of a 12-year-old boy.\\\" Wilson , 2016 WL 7324427, at *6 ; see also Proctor , 2013 WL 6726286, at *2 (Proctor knew the victim and lived with him for several months while committing the crimes). The majority held: \\\"The prosecutor thus invited the district court to rely on inaccurate facts in Wilson's case and to compare them to inaccurate facts in Proctor's case.\\\" 2016 WL 7324427, at *6.\\nIt then concluded these misstatements were: (1) gross and flagrant misconduct because they were planned and violated well-established rules; (2) motived by ill will since they were \\\"volunteered in response to the court's narrow question to the prosecutor whether drinking was involved-a question that went unanswered\\\"; and (3) may have affected the district court's decision to impose lifetime postrelease supervision. 2016 WL 7324427, at *7-8 (\\\"In the context of this case, we determine the likely effect not on the verdict reached by the jurors but on the decision made by the district court.\\\"). The majority held those improper comments were prejudicial and denied Wilson a fair hearing. 2016 WL 7324427, at *9.\\nThe dissent viewed the circumstances differently. Judge Michael Buser argued the prosecutor's assertions about digital rape and sodomy were supported by: (1) the standard arrest report indicating Wilson was arrested for rape and aggravated sodomy of a child under 14 years old; (2) an entry from the district court's docket sheet memorializing a hearing held on the same day the arrest report was filed, which states \\\" 'Probable cause found' \\\"; and (3) the appearance bond signed by the judge, which noted Wilson was charged with \\\"RAPE < 14, AGG. SODOMY.\\\" 2016 WL 7324427, at *13.\\nJudge Buser insisted the first comment was not prosecutorial error because \\\"[i]n sentencing matters ., district court judges rely on the presentence investigation (PSI) report. In this case, the PSI contained facts and information which also supported [the challenged factual assertion].\\\" 2016 WL 7324427, at *15. And, the dissent continued, while none of the listed pieces of the record explicitly stated Wilson \\\"digitally\\\" raped and sodomized the victim, this information was encompassed by the statute because \\\"Kansas law defines sexual intercourse as 'any penetration of the female sex organ by a finger , the male sex organ or any object,' \\\" referring to K.S.A. 21-3501(1). 2016 WL 7324427, at *15. As to the second comment about Proctor , Judge Buser agreed the prosecutor incorrectly stated the case's facts but disagreed this constituted misconduct because the district court judge was presumed to know the law. 2016 WL 7324427, at *15. Finally, the dissent insisted the pre- Sherman test was inapplicable to a prosecutorial error during a motion hearing before a district judge because it equated an alleged error tainting a jury with impact on a trial judge. 2016 WL 7324427, at *11.\\nThe State petitioned this court for review. Wilson did not ask us to review his Freeman challenge, which the panel avoided. Accordingly, we address only the prosecutorial error claim. See Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54) (\\\"The court will not consider issues not presented or fairly included in the petition.\\\"); Castleberry v. DeBrot , 308 Kan. 791, 794-95, 424 P.3d 495 (2018). The State does not challenge the majority's holding relating to the Proctor misrepresentations, so that resolves in Wilson's favor on review. See State v. McBride , 307 Kan. 60, 62, 405 P.3d 1196 (2017).\\nJurisdiction is proper. K.S.A. 20-3018(b) (petitions for review of Court of Appeals decision); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).\\nPRESERVATION\\nAt the outset we must consider whether Wilson's prosecutorial error challenge is preserved for our review. On appeal, the State pointed out Wilson did not object to the alleged misstatements during the hearing, so it argued the issue was not properly preserved. The panel rejected this contention because a contemporary objection is not required to claim prosecutorial error during closing argument before a jury, so it reasoned that principle should extend to Wilson's sentencing proceeding before the judge. Wilson , 2016 WL 7324427, at *4 ; see also State v. Miller , 293 Kan. 535, 550, 264 P.3d 461 (2011) (while a contemporary objection is required for review of an evidentiary prosecutorial error claim, it is unnecessary to consider prosecutorial error during closing argument).\\nIn its petition for review, the State identified one issue for this court to take up: Whether the prosecutor committed reversible error at the hearing on the State's motion to correct illegal sentence? This advances only a merits based challenge to the prosecutorial error question. As a result, we hold the State waived review of the panel majority's conclusion on preservation. See Supreme Court Rule 8.03(a)(4)(C) (Supreme Court will not consider issues not presented or fairly stated in the petition for review). We express no opinion whether a contemporaneous objection or other posthearing remedial motion is required to appeal a prosecutorial error claim arising from a nonjury setting.\\nANALYSIS\\nTo determine what test applies when an appellate court reviews an alleged prosecutorial error during a sentencing hearing, it is important to understand the protected right at stake.\\nProsecutorial error jurisprudence recognizes a prosecutor's conduct can implicate a criminal defendant's due process rights to a fair trial under the Fourteenth Amendment to the United States Constitution. Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (\\\"[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial.\\\"); Sherman , 305 Kan. at 97, 378 P.3d 1060 (\\\"The jurisprudence surrounding policing prosecutors during trial has historically taken as its lodestar-in almost all cases-the due process requirements of the Fourteenth Amendment.\\\"). And our prosecutorial error test makes clear that criminal defendants have a constitutional right to a fair trial. As we explained in Sherman :\\n\\\"To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial . If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial .\\\" (Emphases added.) Sherman , 305 Kan. at 109, 378 P.3d 1060.\\nAdmittedly, the above is cast in terms of the prosecutor's efforts to obtain a \\\"conviction,\\\" but this does not confine prosecutorial error to a trial's guilt phase. One's fair trial right is equally protected in a penalty phase. See State v. Kleypas , 272 Kan. 894, 1083-84, 40 P.3d 139 (2001) (discussing in a death penalty case review for claimed prosecutorial misconduct during the penalty phase and holding it \\\"is similar to the standard applied in the guilt phase.\\\"), overruled on other grounds by Kansas v. Marsh , 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006). So to the extent our caselaw typically describes prosecutorial error in the guilt-phase context when obtaining a \\\"conviction\\\" or a \\\"verdict,\\\" we must remember our concern is comporting with the due process right to a fair trial. Those concerns remain for sentencings.\\nA review of out-of-state caselaw also shows many states have held prosecutors can commit error in nonjury settings. See, e.g., Liggett v. People , 135 P.3d 725, 733-35 (Colo. 2006) (defendant had a bench trial and the court analyzed whether prosecutorial misconduct occurred during closing argument); State v. Mosley , 853 N.W.2d 789, 801-03 (Minn. 2014) (defendant was convicted after a bench trial and the court addressed an issue of whether prosecutor committed misconduct by eliciting inadmissible character evidence); Com. v. Francis , 445 Pa. Super. 353, 360-61, 665 A.2d 821 (1995) (recognizing \\\"trial judges are presumed to ignore prejudicial material when acting as factfinder\\\"; holding prosecutorial error affected the factfinder at the bench trial); State v. Kehdy , 120 Hawaii 418, 2009 WL 1805908, at *5-6 (Hawaii App. 2009) (unpublished opinion) (rejecting State's assertion the prosecutorial misconduct was harmless beyond a reasonable doubt simply because it was a bench trial); State v. Myers , 2004-Ohio-478, 2004 WL 226105, at *5 (Ohio App. 2004) (unpublished opinion) (considering alleged prosecutorial error occurring in a bench trial). We are aware of no case with a contrary holding, nor are we cited to any.\\nThe Wilson dissent points out some state courts have a distinctive test addressing circumstances like those we have here. Wilson , 2016 WL 7324427, at *18, citing: Deeds v. State , 2014 WY 124, 335 P.3d 473, 480 (2014) (defendant's burden to show a due process violation in the context of a sentencing hearing before the bench by showing \\\" 'the trial court relied upon the [prosecutorial] statements in sentencing' \\\" him); State v. Tierinni , 144 Conn.App. 232, 240, 71 A.3d 675 (2013) (rejecting traditional test for prosecutorial impropriety in favor of two-pronged inquiry: \\\" 'first, did the information at issue contain some minimal indicium of reliability; second, if it did not, did the trial court substantially rely on this improper information in fashioning its ultimate sentence?' \\\"); State v. Rivera , No. 30836, 2013 WL 4512056, at *4 (N.M. App. 2013) (unpublished opinion) (\\\"When matters are tried before a judge, we presume the judge has disregarded improper comments or evidence unless the record clearly indicates otherwise,\\\" and \\\"we do not treat [those] issue[s] as a standard prosecutorial misconduct claim.\\\"). But despite their distinct tests, they begin by recognizing prosecutorial error can occur in these settings.\\nWe hold prosecutorial missteps may implicate due process rights to a fair trial in this nonjury context.\\nSo what test should apply? When the parties argued this appeal to the panel, Kansas courts referred to claims that a prosecutor's comments denied a defendant's due process rights to a fair trial as \\\"prosecutorial misconduct.\\\" See State v. Barber , 302 Kan. 367, Syl. \\u00b6 4, 353 P.3d 1108 (2015). The then-effective test was set out in State v. Tosh , 278 Kan. 83, Syl. \\u00b6 1, 91 P.3d 1204 (2004). Under Tosh , an appellate court first decided whether the prosecutor's remark being complained about was outside the wide latitude allowed in discussing evidence. 278 Kan. at 85, 91 P.3d 1204. If so, the court made what was described as a \\\"particularized harmlessness inquiry,\\\" assessing three factors: (1) whether the misconduct was gross and flagrant; (2) whether it showed ill will on the prosecutor's part; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct likely had little weight in the jurors' minds. 278 Kan. at 93-96, 91 P.3d 1204. No factor was individually controlling; but before the third could override the first two, an appellate court had to be able to say the harmlessness tests of both K.S.A. 60-261 and Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), were met. Tosh , 278 Kan. 83, Syl. \\u00b6 2, 91 P.3d 1204.\\nAs mentioned, while Wilson's appeal was pending with the panel, we modified the two-step analytical framework for claims that a prosecutor's trial behavior requires reversal. See Sherman , 305 Kan. at 109, 378 P.3d 1060. Sherman renamed such claims \\\" 'prosecutorial error,' \\\" saving the pejorative \\\" 'prosecutorial misconduct' \\\" label for more egregious transgressions. 305 Kan. at 107, 114, 378 P.3d 1060 ; see State v. Chandler , 307 Kan. 657, 695, 414 P.3d 713 (2018).\\nSherman did not disturb the preexisting standard for whether the prosecutorial action complained about was improper, i.e., the action was outside the wide latitude afforded prosecutors. 305 Kan. at 104, 378 P.3d 1060 (\\\"The well-developed body of caselaw defining the scope of a prosecutor's 'wide latitude' . will continue to inform our review of future allegations of prosecutorial error.\\\"). Sherman modified Tosh 's second step only:\\n\\\"If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman . In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict.' We continue to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but when 'analyzing both constitutional and nonconstitutional error, an appellate court need only address the higher standard of constitutional error.' [ Citations omitted.]\\\" 305 Kan. at 109, 378 P.3d 1060.\\nIn doing so, Sherman further noted:\\n\\\"Multiple and varied individualized factors can and likely will affect the Chapman analysis in future cases. Every instance of prosecutorial error will be fact specific, and any appellate test for prejudice must likewise allow the parties the greatest possible leeway to argue the particulars of each individual case. Thus, appellate courts should resist the temptation to articulate categorical pigeonholed factors that purportedly impact whether the State has met its Chapman burden. Appellate courts must simply consider any and all alleged indicators of prejudice, as argued by the parties, and then determine whether the State has met its burden-i.e. , shown that there is no reasonable possibility that the error contributed to the verdict. The focus of the inquiry is on the impact of the error on the verdict. While the strength of the evidence against the defendant may secondarily impact this analysis one way or the other, it must not become the primary focus of the inquiry. As has often been repeated, prejudice can exist even 'in a strong case.' [ Citation omitted.]\\\" 305 Kan. at 110-11, 378 P.3d 1060.\\nSherman provides the best measure to evaluate the prosecutorial error in the context of Wilson's sentencing hearing before a district court judge. To begin with, Sherman was decided more than two years ago and the parties have had the opportunity to address its application. See Gaudina v. State , 278 Kan. 103, 106, 92 P.3d 574 (2004) (changes in the law generally apply to cases not yet final). And we discern no prejudice to either side by using Sherman . More importantly, the Tosh language for the second prong unnecessarily diverts attention from the pivotal fair trial inquiry. As Sherman points out, there is little need to consider whether an error was gross and flagrant or motivated by ill will because what is paramount for fair trial concerns is defining any impact from an error on the proceeding's outcome. Sherman , 305 Kan. at 93, 378 P.3d 1060. That is just as true in this nonjury setting.\\nWilson's appeal highlights why our move away from the harsher \\\"prosecutorial misconduct\\\" tag should be helpful. Many times in both the briefing and oral argument, the State's counsel, who was also the prosecutor at the sentencing hearing, defensively explained he was not motivated by ill will-even when the questioning was just about the reasonable possibility the error affected the judge's ruling. And while we appreciate prosecutors, as public servants, are appropriately sensitive to the \\\"misconduct\\\" label, these cases are more about the error's potential effect on the outcome than the prosecutor's professionalism or ethics. That focus should not get lost. Saving the \\\"misconduct\\\" brand for the most egregious circumstances is intended to avoid such distractions.\\nApplying the Sherman test, we hold the prosecutor was outside the wide latitude afforded when arguing the State's motion to correct an illegal sentence. We hold further the State fails to meet its burden to show there is no reasonable possibility this prosecutorial error contributed to the district court's decision, i.e., the proceeding's outcome.\\nTo begin with, the prosecutor's statement that Wilson digitally raped and sodomized his victim was unsupported by evidence. The police reports referenced by the dissent are not in the appellate record. But even if they were, their contents were only allegations-not evidence. And contrary to the dissent's implication, there is no mention of digital rape or sodomy in the presentence investigation report in the appellate record.\\nApparently, the prosecutor believed it was appropriate for the district court to consider claims unsupported by evidence in ruling on Wilson's Freeman challenge. If that were so, that belief was wrong. See State v. Atkisson , 308 Kan. 919, Syl. \\u00b6 7, 425 P.3d 334 (2018) (\\\"When a discretionary decision requires fact-based determinations, a district court abuses its discretion when the decision is based on factual determinations unsupported by the evidence.\\\"); State v. Gonzalez , 290 Kan. 747, 757, 234 P.3d 1 (2010) (same). Similarly, an appellate court employs a bifurcated standard when reviewing a district court's decision whether a sentence is cruel or unusual under Section 9 of the Kansas Constitution Bill of Rights. And the first inquiry is whether there is sufficient support for the district court's factual findings, i.e., substantial competent evidence. State v. Mossman , 294 Kan. 901, 906, 281 P.3d 153 (2012).\\nWhat the prosecutor did was ask the district court to base its decision on allegations unsupported by evidence. When a prosecutor argues facts outside the evidence, the first prong of the prosecutorial error test is met. Chandler , 307 Kan. at 678-79, 414 P.3d 713.\\nAs for the impact of that error, it appears reasonably possible the prosecutor's prompt pushed the court into considering unsupported allegations rather than evidence. As the panel majority concluded:\\n\\\"[T]he colloquy between the court and the prosecutor shows that before the prosecutor's misstatements, the court considered Wilson's specific conduct to be nonviolent. But immediately after the prosecutor's misstatements, the court appears to have changed its mind. The effect of the prosecutor's words on the district court was thus weighty and persuasive.\\\" Wilson , 2016 WL 7324427, at *9.\\nThe majority also correctly points out \\\"the district court would be justified in relying on the prosecutor's statements of facts and law, particularly where, as here, the argument at the hearing was prepared by the State in support of its own motion.\\\" 2016 WL 7324427, at *8.\\nThe factual misstatement about the underlying crime is sufficient standing alone to reverse the district court's decision. For that reason, we need not delve further into the misstatements about Proctor . Plus, as the dissent appropriately observes, there was no reference by the district court to Proctor \\\"in any way in evaluating the first Freeman factor or making [its] ultimate ruling.\\\" Wilson , 2016 WL 7324427, at *18.\\nThat said, we recognize lawyers routinely have different interpretations about a judicial decision's legal effect, as well as whether meaningful differences in facts distinguish one case from another. Because of that, circumstances resulting in a claim that a prosecutor stepped outside appropriate bounds as an advocate when discussing caselaw to a judge may be harder to sort out on appeal. We need not untangle that bird's nest in this decision.\\nWe affirm the Court of Appeals judgment reversing the district court on the issue subject to review and remand the case to the district court to consider again the constitutional question, i.e., whether imposing lifetime postrelease supervision on Wilson would be grossly disproportionate to his offense under Freeman . If Wilson's argument is unsuccessful, the district court then can decide whether the State may prevail on its motion to correct an illegal sentence.\"}"

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+"{\"id\": \"1259877\", \"name\": \"Benjamin W. Stark, et al., Appellants, v. Mercantile Bank, N.A., Successor in Interest to The Johnson County National Bank and Trust Company, and Nationsbank, N.A., Successor in Interest to Boatmen's Bank, N.A., Appellees\", \"name_abbreviation\": \"Stark v. Mercantile Bank, N.A.\", \"decision_date\": \"2000-08-04\", \"docket_number\": \"No. 83,269\", \"first_page\": 717, \"last_page\": \"725\", \"citations\": \"29 Kan. App. 2d 717\", \"volume\": \"29\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:12:39.103615+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Marquardt, P.J., Beier, J., and John W. White, District Judge, assigned.\", \"parties\": \"Benjamin W. Stark, et al, Appellants, v. Mercantile Bank, N.A., Successor in Interest to The Johnson County National Bank and Trust Company, and Nationsbank, N.A., Successor in Interest to Boatmen\\u2019s Bank, N.A., Appellees.\", \"head_matter\": \"(33 P.3d 609)\\nNo. 83,269\\nBenjamin W. Stark, et al, Appellants, v. Mercantile Bank, N.A., Successor in Interest to The Johnson County National Bank and Trust Company, and Nationsbank, N.A., Successor in Interest to Boatmen\\u2019s Bank, N.A., Appellees.\\nOpinion filed August 4, 2000.\\nJohn J. Benge and Michael L. Hodges, of Benge Law Firm, of Kansas City, Missouri, for appellants.\\nEric G. Tuhnd and Steven E. Mauer, of Bryan Cave LLP, of Kansas City, Missouri, for appellee NationsBank, N.A.\\nMark D. Hinderks, of Stinson, Mag & Frizzell, P.C., of Leawood, for appellee Mercantile Bank, N.A.\\nBefore Marquardt, P.J., Beier, J., and John W. White, District Judge, assigned.\", \"word_count\": \"2787\", \"char_count\": \"16738\", \"text\": \"Beier, J.:\\nPlaintiffs-appellants appeal the district court's decision to grant the defendant banks' motions to dismiss. The district court ruled that plaintiffs' claims were barred by the statute of repose. We affirm.\\nThe parties appear to agree that plaintiffs Benjamin W. Stark, Allan Breed Stark, Mary Breed Brink, Barbara Chapman, Martha McCormick, Nancy Gee, Ruth Hanna, and Thomas Millar are beneficiaries of a trust created in 1949 by J. Rolland Prentice Breed, who died in 1951. The assets held by the trust include a parcel of land located at 75th and Metcalf in Overland Park, Kansas.\\nPlaintiffs take issue with a commercial lease of the land, entered into in 1957 by Breed's executors and the trustee, Johnson County National Bank & Trust Co. (Johnson County Bank), on the one hand and Southwest Development Company, Inc., (Southwest) on the other. Their petition named Mercantile Bank, N.A., (Mercantile) as a defendant because it is the successor in interest to Johnson County Bank. Johnson County Bank was appointed a trustee for the parcel of land because First National Bank of Kansas City, N.A., (First National), the original trustee, was precluded from acting as a trustee for a property located in Kansas.\\nThe lease provided for an initial term of 51 years and an option to renew for an additional 25 years. The annual rent for the first 2 years was $7,286, and the annual rent for the remaining years was $11,656. Additional rent of $1,200 per year was to be paid if sales from the leased premises exceeded $5 million per year. A provision was also made for a .5 percent annual adjustment of the additional rent during the renewal period.\\nBefore the lease was executed, the Johnson County probate court held a hearing at the behest of the attorney appointed to represent the interests of the unborn, unascertained, minor, or legally disabled beneficiaries of the trust, a group of individuals that apparently included all of the plaintiffs. Johnson County Bank was placed on strict proof of its contention that it had\\n\\\"made an exhaustive investigation in regard to persons who might be interested in leasing said property and after obtaining several offers with respect thereto has determined in its best judgment that a certain offer of lease made by Southwest Development Company, Inc., . is the most favorable one that can be obtained.\\\"\\nAt the conclusion of the hearing, the probate court ruled that the lease was in the best interests of the trust estate and the beneficiaries and authorized its execution.\\nSubsequently, Southwest subleased the land to Katz Drug Company. A new building was constructed which housed a Katz Drug Store. The heart of plaintiffs' case is their allegation that Isaac Katz was one of the principals of Katz Drug Company, was on the board of Johnson County Bank, and was an influential customer of First National. Plaintiffs' position is that Mr. Katz' multiple roles inevitably resulted in a conflict of interest that polluted the lease transaction, artificially depressing the rental rate and making the lease commercially unreasonable. Defendants, for their part, state that the allegation is untrue, alleging that Katz' death predated the lease.\\nJohnson County Bank resigned and withdrew as trustee in September 1985, and the probate court appointed Boatmen's First National Bank of Kansas City (Boatmen's) as substitute. Defendant NationsBank, N.A., (NationsBank) is the successor to Boatmen's. On the exit of Johnson County Bank, the probate court observed that the bank's accounts \\\"should be settled and allowed and all of its acts and proceedings as trustee have been in accordance with law and the orders of this Court and are approved.\\\"\\nThe record reflects that plaintiffs filed suit against Mercantile and NationsBank on December 1, 1998. Their Second Amended Petition eventually alleged breach of fiduciary duty, fraud, and gross negligence\\u2014all claims flowing from the alleged conflict of interest involving Katz. Each defendant bank filed a motion to dismiss based on the statute of repose and a motion for summary judgment based on the doctrines of res judicata and collateral estoppel.\\nPlaintiffs argued in response to the motions that (1) the statute of repose set forth in K.S.A. 60-513(b) cannot be applied to causes of action based on wrongful conduct predating its enactment; (2) the statute of repose does not apply to their fraud claim; and (3) none of the requirements for the application of the doctrines of res judicata or collateral estoppel could be met in this case.\\nThe district court ruled in defendants' favor on the motions to dismiss, finding plaintiffs' various claims barred by the statute of repose. It then held that the summary judgment motions based on res judicata and collateral estoppel were moot and did not address their merits.\\nStandard of Review\\nOur standard of review when a motion to dismiss has been granted in the district court was restated in Colombel v. Milan, 24 Kan. App. 2d 728, 952 P.2d 941 (1998):\\n\\\" 'Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiffs favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.'\\n\\\" 'In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.' \\\" 24 Kan. App. 2d at 729 (quoting Ripley v. Tolbert, 260 Kan. 491, Syl. \\u00b6 1, 2, 921 P.2d 1210 [1996]).\\nFurther, when the issue before us requires interpretation of a statute, we are faced with a question of law, and an appellate court's review of a question of law is unlimited. Decker v. Kansas Dept. of SRS, 24 Kan. App. 2d 155, 157, 942 P.2d 667, rev. denied 262 Kan. 960 (1997). Review of the district court's ruling requires us to interpret the meaning and potential applicability of statutes of limitation and repose.\\nGeneral Applicability of Statute of Repose\\nPlaintiffs first argue that the statute of repose found in K.S.A. 60-513 is inapplicable to their claims because it was not enacted until 1987. That statute now reads in pertinent part:\\n\\\"(a) The following actions shall be brought within two years:\\n(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.\\n(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.\\n\\\"(b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.\\n\\\"(e) The provisions of this section as it was constituted prior to July 1, 1996, shall continue in force and effect for a period of two years from that date with respect to any act giving rise to a cause of action occurring prior to that date.\\\" K.S.A. 1999 Supp. 60-513.\\nBefore K.S.A. 60-513 was amended in 1996, it provided that the section as written before July 1,1987, would continue in force \\\"for a period of two years from that date with respect to any act giving rise to a cause of action occurring prior to that date.\\\" The statute was rewritten in 1987 to include language effective to bar a suit when 10 years had passed since the wrongful act giving rise to it. See Harding v. K. C. Wall Products, Inc., 250 Kan. 655, 659-60, 831 P.2d 958 (1992).\\nPlaintiffs argue that the statute of repose is substantive rather than procedural and therefore cannot be applied retroactively to their claims. Rather, they insist, their causes of action are governed by the statute in effect in 1957, G.S. 1949 60-306, that required civil actions \\\"for injury to the rights of another, not arising on contract, and not hereinafter enumerated\\\" and \\\"for relief on the ground of fraud,\\\" which accrued on discovery, to be brought within 2 years. Because the 1957 version of the statute contained no repose language barring suit 10 years after the act giving rise to the cause of action, plaintiffs argue that their claims were still viable 41 years after the execution of the lease.\\nWe do not agree.\\nAlthough plaintiffs are correct that statutes of repose have been characterized as substantive while statutes of limitation have been characterized as procedural, our Supreme Court has invoked the distinction to protect potential defendants from having claims against them revived rather than to preserve potential plaintiffs' claims into infinity. See Shirley v. Reif, 260 Kan. 514, 523-27, 920 P.2d 405 (1996); Harding, 250 Kan. at 669. In addition, we do not believe defendants seek an impermissible retroactive application of the statute of repose to wrongful conduct predating its enactment. Rather, they seek prospective application of the statute to a lawsuit filed many years later.\\nMoreover, the Kansas Supreme Court has opined that claims arising out of conduct predating the 1987 amendment by 10 years or more would be barred if filed after the expiration of the 2-year grace period in 1989. See Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 694-700, 829 P.2d 578 (1992).\\nWe have no difficulty discerning legislative intent to erect a final, nonnegotiable bar to stale claims in the creation and articulation of the 10-year time limit of K.S.A. 60-513 and its companion 2-year transitional grace period. \\\" ' \\\"It is presumed the legislature had and acted with full knowledge and information as to the subject matter of the statute, as to prior and existing law and legislation on the subject of the statute and as to the judicial decisions with respect to such prior and existing law and legislation.\\\" ' \\\" 250 Kan. at 697-98 (quoting Stephens v. Snyder Clinic Ass'n, 230 Kan. 115, 121-23, 631 P.2d 222 [1981]) (interpreting 2-year grace period as applied to medical malpractice action). And our interpretation is supported by the general rule that statutes must be construed to avoid unreasonable results. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). It would certainly be unreasonable if K.S.A. 60-513 was twisted to close the courthouse door to plaintiffs who wished to sue on wrongful acts committed after 1987 while it welcomed those pursuing redress for wrongful acts even more remote in time. The district court was correct in holding that 60-513 should be applied to determine the viability of plaintiffs' claims.\\nFraud and the Statute of Repose\\nPlaintiffs' second argument is that a statute of repose cannot apply to a fraud claim and that each of their causes of action is based on an allegation of fraud on the part of the defendant banks. They cite two decisions in support of their argument that the statute cannot apply to fraud claims: Jennings v. Jennings, 211 Kan. 515, 527, 507 P.2d 241 (1973), and Robinson v. Shah, 23 Kan. App. 2d 812, 814-16, 936 P.2d 784 (1997). Both cases demonstrate that plaintiffs' claims do not fit any fraud exception to the statute of repose.\\nIn Jennings, plaintiffs sued when they discovered that certain stock expected to be transferred and delivered to them had already been assigned by the donor/trustee to another family member. In terpreting the predecessor statute to K.S.A. 60-513, the court held that the action could proceed. 211 Kan. at 527. The beneficiaries of the trust were not charged with the duty to investigate the action of the trustee \\\"until such facts as would prompt a normal alert person to make further inquiry are known.\\\" 211 Kan. at 524.\\nIn Robinson, the plaintiff patient brought suit less than 2 years after she discovered her physical problems were caused by surgical sponges left in her abdomen but more than 10 years after her physician began concealing the presence of the sponges. A panel of this court held that the fraudulent concealment of the physician tolled the statute of limitations and the statute of repose on the plaintiff s fraud claim. 23 Kan. App. 2d at 826. In essence, our court refused to permit the physician to shield herself from liability through active misrepresentation to a person incapable of discovering the truth on her own.\\nWe do not dispute that these cases support the general idea plaintiffs seek to promote: Fraud and fraudulent concealment either toll the statute of repose or make it inapplicable. However, the facts of this case, as alleged in the second amended petition, fall far short of fraud or fraudulent concealment.\\nIn this case, there is nothing in the pleadings that begins to explain why the plaintiffs failed to file their lawsuit for 41 years or why that delay should be laid at the feet of defendants. Nowhere does it say how or why plaintiffs, who were represented by counsel in the probate proceeding, and who apparently enjoyed long relationships with the original beneficiaries, could have been unaware of or misled about what obviously became a bargain rental rate for the property much more than 2 years before the filing of the suit. Nowhere is it explained how any alleged relationship between Katz and the predecessors of the defendant banks actually led to fraud or fraudulent concealment of pertinent information about a more commercially reasonable rental rate. At oral argument, counsel for plaintiffs conceded that the only evidence the Katz relationship was concealed was that \\\"one uncle\\\" was not told about it. At no time have we been told what finally prompted plaintiffs to make the sort of inquiry about the facts that the long-term lease at a remarkably low rate should have prompted in a \\\"normal alert person\\\" or when it occurred. On the coiitrary, it appears plaintiffs may have merely chosen to wait until the original beneficiaries and executors were deceased or otherwise out of the picture.\\nIn short, plaintiffs have failed to demonstrate that they have any cause of action for fraud or fraudulent concealment that withstands or avoids application of the statute of repose. Even under Jennings and Robinson, a plaintiff cannot be deliberately ignorant regarding the behavior of his fiduciary and blame any more complete understanding acquired later on the fiduciary's fraud. Even if plaintiffs could prove a nondisclosure of the Katz relationship in this case, not every nondisclosure is fraud or fraudulent concealment. See Robinson, 23 Kan. App. 2d at 820. Plaintiffs fail to state a claim for which relief can be granted, and dismissal under K.S.A. 60-212(b)(6) was appropriate.\\nAffirmed.\\nWe find no support for this basic fact in the appellate record other than references of counsel to the plaintiffs as beneficiaries and an assumption made by the district court in its decision. We also note that the last names of several, but not all, of the plaintiffs listed in the caption of the Second Amended Petition correspond to the last names of certain of Breed's children, leading us to the deduction that at least those individuals are descendants whose rights derive from those of their parents. It would have been helpful if plaintiffs had, at some point, set out enough of a personal history to connect each to the subject matter of the dispute.\"}"

kan/1259913.json

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+"{\"id\": \"1259913\", \"name\": \"Marsha L. Loveless, Phillip A. Loveless, and Jacob Loveless, A Minor Child, Appellants, v. American Family Mutual Insurance Company, Appellee\", \"name_abbreviation\": \"Loveless v. American Family Mutual Insurance\", \"decision_date\": \"2001-05-25\", \"docket_number\": \"No. 86,037\", \"first_page\": 223, \"last_page\": \"225\", \"citations\": \"29 Kan. App. 2d 223\", \"volume\": \"29\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:12:39.103615+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Elliott, P.J., Brazil and Paddock, S.J.\", \"parties\": \"Marsha L. Loveless, Phillip A. Loveless, and Jacob Loveless, A Minor Child, Appellants, v. American Family Mutual Insurance Company, Appellee.\", \"head_matter\": \"(24 P.3d 198)\\nNo. 86,037\\nMarsha L. Loveless, Phillip A. Loveless, and Jacob Loveless, A Minor Child, Appellants, v. American Family Mutual Insurance Company, Appellee.\\nOpinion filed May 25, 2001.\\nKola Spigarelli and Fred Spigarelli, of Spigarelli, McLane and Short, of Pitts-burg, for appellants.\\nM. Doug Bell, of Hall Levy DeVore Bell Ott & Kritz, of Coffeyville, for appellee.\\nBefore Elliott, P.J., Brazil and Paddock, S.J.\", \"word_count\": \"614\", \"char_count\": \"3947\", \"text\": \"Elliott, J.:\\nThe Lovelesses sought bodily injury recovery from American Family Mutual Insurance Company (American Family) (their own automobile carrier) under the uninsured motorist provision of their policy and K.S.A. 40-284. The trial court granted American Family summary judgment, the Lovelesses appeal, and we affirm.\\nAppellants were involved in an automobile accident with Chad Johnson in Oklahoma. At the time of the accident, the Johnson vehicle was insured by Arkansas Farm Bureau and Chad was listed as an additional insured on their policy. Appellants received and rejected a settlement offer from Arkansas Farm Bureau under the Johnson policy.\\nLater, appellants sued Chad in Oklahoma but their attempts to locate and serve Chad with process were unsuccessful; the Oklahoma suit was dismissed and appellants then sued American Family in Kansas, alleging that since Chad's whereabouts were unknown, they could recover under their uninsured coverage.\\nAs part of its summary judgment motion, American Family attached a copy of the Arkansas Farm Bureau policy indicating Chad was insured under its policy at the time of the accident.\\nIn granting American Family's motion for summary judgment, the trial court denied coverage under American Family's policy, ruling an insured, but unavailable, tortfeasor is not an uninsured motorist.\\nK.S.A. 40-284 requires uninsured motorist coverage for injuries suffered in an accident arising out of the ownership or use of a vehicle by an \\\"uninsured owner or operator.\\\" The statute does not cover a situation where the uninsured owner or operator owns an automobile liability policy. See Hilyard v. Estate of Clearwater, 240 Kan. 362, 369, 729 P.2d 1195 (1986). Following this reasoning, we hold the statute does not mandate coverage under the facts of the present case. Here, the alleged uninsured owner or operator does not own an insurance policy but is an additional insured driver under the policy as a family member.\\nThe statute does not define \\\"uninsured owner or operator,\\\" and the specific issue raised by appellants is one of first impression in Kansas. Appellants argue that because they were unable to locate and serve Chad, he should be considered \\\"uninsured.\\\"\\nAppellants' reliance on McDaniel v. State Farm, Mutual, 205 Va. 815, 139 S.E.2d 806 (Va. App. 1965), is misplaced. In McDaniel, the tortfeasor's insurance company voided the tortfeasor's policy and denied coverage. Here, the Johnson's policy remained in force, and the adjuster for Johnson's carrier attempted settlement with appellants under the Arkansas Farm Bureau policy.\\nThere is some authority for uninsured motorist coverage where the incident involves a hit-and-run accident and the driver's identity is unknown. See, e.g., Claire v. State Farm Mut. Auto. Ins. Co., 973 P.2d 686, 688 (Co. App. 1998). But a motorist is not \\\"unknown\\\" where only his or her whereabouts are unknown. Problems in effecting service on the known tortfeasor does not mean the tortfeasor is \\\"unknown.\\\" 973 P.2d at 688-89. \\\"Where the offending party is insured but unavailable for service, the injured party cannot recover under his uninsured coverage with his insurance company.\\\" Weinberg v. State Farm Mut. Auto. Ins. Co., 659 S.W.2d 236, 238 (Mo. App. 1983).\\nIf the legislature had intended to bring insured but unavailable tortfeasors within the purview of K.S.A. 40-284, it could have carved out a separate exception as it did under K.S.A. 40-285 for tortfeasors insured by insolvent insurance companies.\\nAffirmed.\"}"

kan/1260205.json

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+"{\"id\": \"1260205\", \"name\": \"In re Estate of John West, Deceased, et al., Appellants, v. John E. West, et al., Appellees\", \"name_abbreviation\": \"Estate of West v. West\", \"decision_date\": \"1949-04-09\", \"docket_number\": \"No. 37,549\", \"first_page\": 94, \"last_page\": \"97\", \"citations\": \"167 Kan. 94\", \"volume\": \"167\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:23:51.345736+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re Estate of John West, Deceased, et al., Appellants, v. John E. West, et al., Appellees.\", \"head_matter\": \"No. 37,549\\nIn re Estate of John West, Deceased, et al., Appellants, v. John E. West, et al., Appellees.\\n(204 P. 2d 729)\\nOpinion filed April 9, 1949.\\nRoy N. McCue, of Topeka, argued the cause, and Max Jones and Charles G. Doekhom, both of Goodland, and Howard F. MeCue, of Topeka, were with him on the briefs for the appellants.\\n\\u25a0 E. E. Kite, of St. Francis, argued the cause and was on the briefs for the appellees.\", \"word_count\": \"1337\", \"char_count\": \"7742\", \"text\": \"The opinion of the court was delivered by\\nParker, J.:\\nWhile the estate of John West, deceased, was being administered in the probate court of Sherman county some of his heirs at law filed objections to final settlement, charging the administrator had failed to properly collect and inventory assets of the estate and asking for the removal of such fiduciary and the appointment of another in his stead. These objections and requests were all overruled and denied and the probate court proceeded to close the estate. In due time the disgruntled heirs appealed to the district court from the decree of final settlement and from the order overruling the objections made prior to its rendition. Thereupon, Ora West, as administrator of the estate, moved to dismiss the appeal from probate court on jurisdictional grounds. This motion was overruled by the district court. Instead of acquiescing in such ruling and proceeding with the trial of the probate appeal on its merits the administrator served notice of appeal and now insists that this court should determine whether the trial court's action in denying his motion was erroneous.\\nThus it becomes immediately apparent the question of our jurisdiction in the case at bar, which we pause to note must be first determined before giving consideration to the merits of any appeal even though the parties themselves have not raised it (Pulliam v. Pulliam, 163 Kan. 497, 498, 183 P. 2d 220; Asendorf v. Asendorf, 162 Kan. 310, 176 P. 2d 535; In re Gambrell, 161 Kan. 4, 165 P. 2d 760; Shively v. Burr, 157 Kan. 336, 139 P. 2d 401; Vrooman Co. v. Summer, 110 Kan. 662, 205 Pac. 609), depends solely upon whether, under our code of civil procedure (G. S. 1935, 60-3302, 60-3303), the overruling of the motion to dismiss the appeal by the district court is to be regarded as a final order and therefore subject to appellate review.\\nThe question now to be decided is neither new nor difficult of determination. Throughout the years this court has repeatedly held that it is without jurisdiction to entertain attempted appeals from district court orders denying motions to. dismiss appeals from other tribunals for the reason that rulings of such character are not \\\"final orders\\\" within the meaning of that term as used in the two sections of the statute heretofore cited.\\nThe foregoing rule has been followed and applied in numerous and divers situations down to and including the recent past, see Anderson v. Higgins, 35 Kan. 201, 10 Pac. 570, where the motion was to dismiss an appeal from a justice of the peace; Montgomery Ward & Co. v. Ellis, 152 Kan. 320, 103 P. 2d 817, where the motion was to dismiss an appeal from a city court; Kansas State Highway Comm. v. Moore, 166 Kan. 408, 201 P. 2d 652, and Heiman v. State Highway Comm., 146 Kan. 315, 69 P. 2d 685, where the motions were to dismiss appeals from awards made in condemnation proceedings. It has likewise been steadfastly adhered to under many other conditions and circumstances in many other decisions, all of which, including those previously cited; are based upon the salutary principle that a ruling by a trial court on a motion which does not have the effect of terminating an action or foreclosing the parties thereto from thereafter asserting the matters therein sought to be determined never deprives any litigant of substantial rights but at the most merely postpones their final determination until after the trial court has been afforded an opportunity to proceed with and dispose of the cause upon its permit, e. g., Maynard v. Bank, 105 Kan. 259, 182 Pac. 542, where the motion was to dismiss for improper joinder; Oil Co. v. Beutner, 101 Kan. 505, 167 Pac. 1061, where the motion was to set aside service; Edwards v. City of Neodesha, 110 Kan. 492, 204 Pac. 708, -where the motion was to dismiss the action as to certain parties; Pulliam v. Pulliam, 163 Kan. 497, 183 P. 2d 220, where the motion was to strike a petition from the files; and Singleton v. State Highway Comm., 166 Kan. 406, 201 P. 2d 650, where the motion was to strike an appeal from an award of appraisers in a condemnation proceedings.\\nWe are not, however, obliged to depend upon authorities dealing generally with the principle in order to arrive at a decision in the instant case. Similar conclusions have been reached in cases dealing specifically with the appealability of orders denying identical motions.\\nIn re Estate of Johnson, 147 Kan. 12, 75 P. 2d 813, was a case where one phase of the appeal turned on the question whether a district court had erred in denying an executor's motion to dismiss an appeal from the probate court. In that action we held denial of such motion was not a final order and that an appeal to this court did not lie.\\nIn re Estate of Whittelsey, 156 Kan. 157, 131 P. 2d 911, adheres to the same rule although the question came up in a different way. In that case the executors representing the estate had filed a motion in probate court to strike and dismiss a petition for the allowance of a demand against the estate on the ground the claim was barred by the statute of limitations. The probate court denied their motion but later disallowed the demand. The claimant appealed to the district court. There, the executors filed a motion to dismiss the appeal which was sustained. The claimant then appealed to this court/ contending that the motion to dismiss filed in the district court was res judicata and binding on the executors for the reason the same questions had been determined by the adverse ruling in probate court on their motion to strike and dismiss, in which they had acquiesced by failing to appeal. We denied the contention, holding that an order overruling such a motion was not an order on which error could be predicated until final disposition of the cause.\\nThat is not all. In In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278, the appellants in this court had filed motions in the district court to dismiss an appeal from probate court based upon the ground the district court had no jurisdiction of the subject matter. Their motions were overruled and they made no attempt to appeal. Later they lodged demurrers in the district court against a pleading filed by the appellee which raised the same jurisdictional questions. These demurrers were also overruled. On appeal to this court appellee argued that since the demurrers raised the identical questions which were determined by the orders overruling the motions to dismiss the appellants were precluded from having appellate review of the rulings on their demurrers because they had failed to appeal from the adverse rulings on their motions to dismiss. We rejected appellee's contention, holding that the orders denying the motions to dismiss the appeal were not final orders and therefore unappealable.\\nOf little import but nevertheless interesting to note is the fact that the two cases last mentioned were decided long after the effective date of the Kansas probate code. Thus any claim the new enactment has resulted in or requires a change of the established rule is obviated.\\nThe decisions to which we have heretofore referred clearly demonstrate that the ruling of which appellant here complains is not now subject to appellate review. It follows the appeal in the instant case must be and it is hereby dismissed.\"}"

kan/1276480.json

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+"{\"id\": \"1276480\", \"name\": \"Charsto Strom et al., Appellants, v. R. A. Wood, as Sheriff of Morris County, and W. L. Rude, Appellees\", \"name_abbreviation\": \"Strom v. Wood\", \"decision_date\": \"1917-05-12\", \"docket_number\": \"No. 20,856\", \"first_page\": 556, \"last_page\": \"562\", \"citations\": \"100 Kan. 556\", \"volume\": \"100\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:30:09.609681+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charsto Strom et al., Appellants, v. R. A. Wood, as Sheriff of Morris County, and W. L. Rude, Appellees.\", \"head_matter\": \"No. 20,856.\\nCharsto Strom et al., Appellants, v. R. A. Wood, as Sheriff of Morris County, and W. L. Rude, Appellees.\\nSYLLABUS BY THE COURT.\\n1. Will \\u2014 Devise\\u2014Title Vests in Remaindermen. A will gave certain property to the widow of the testator \\u201cso long as she shall live or retain her capacity for such business; or shall not become remarried; and when either of such contingencies shall happen, then I direct that all of said property, both real and personal shall at once be distributed among my children and heirs at law, the issue of myself and by said wife, and my said wife, Charsto Strom, as the laws of Descent and i Distribution of the State of Kansas provide and direct.\\u201d\\nHeld, that such will vested in the widow a life estate to be enlarged to. a one-half interest in fee by remarriage or disability, and vested in the children the remainder in' all, subject to being diminished to a vested remainder in one-half by the disability or remarriage of their mother.\\n2. WILL' \\u2014 Devisee\\u2019s Acceptance \\u2014 Presumptions. A devisee is presumed to accept a devise favorable to him, and if he desire to renounce he should do so within a reasonable time.\\n3. Same \\u2014 Timely Renunciation. A timely renunciation relates back to the death of the testator.\\n4. Will \\u2014 Devise \\u2014 Judgment Against Devisee \\u2014 Judgment Lien< \\u2014 Presumptions of Acceptance of Devise. A judgment was recovered in Morris county against the devisee, April 7, 1910. The testator died, and his will giving the devisee an interest in certain land in the same county was probated May 16, 1911. Executions on the judgment were issued January 6, 1915, and later, March 13, 1916, levy was made on the devisee\\u2019s interest in the land. April 25, 1916, the sheriff began to advertise a sale, to enjoin which this suit was begun. April 24, 1916, the devisee filed a disclaimer. Held, that the judgment had already been for years a lien on his interest which by lapse of time and nonaction he is presumed to have accepted.\\n5. Same \\u2014 No Final Settlement of Estate \\u2014 Judgment\\u2014Against Devisee-\\u2014 Lien Attaches. The amended petition alleged that the estate had not reached final settlement, but averred that the executrix had been appointed more than five years. There was no allegation of unpaid claims. Held, that it will not be presumed that the sale of land was necessary for the payment of debts.\\nAppeal from Morris district court; Roswell L. King, judge.\\nOpinion filed May 12, 1917.\\nAffirmed.\\nEdwin Anderson, of Council Grove, and Frans E. Lindquist, of Kansas City, Mo., for the appellants.\\nM. B. Nicholson, and W. J. Pirtle, both of Council Grove, for the appellees.\", \"word_count\": \"2524\", \"char_count\": \"14391\", \"text\": \"The opinion of the court was delivered by\\nWest, J.:\\nThe amended petition alleged in substance that Oscar Strom, in 1896, willed certain property, giving a life estate to his widow so long as she remained such and capable of looking after the property, and in case she should remarry or become disqualified, the property to be distributed according to the law of descents and distributions. May 2, 1911, the testator died, leaving his widow and four children, including H. C. Strom. Two weeks later the will was probated and the widow filed her election to take thereunder. January 6, 1915, execution was issued on a judgment recovered April 7, 1910, by Anna Jenner against H. C. Strom, in Morris county, where^the land is situated. February 8, 1916, a second execution was issued, and March 13, 1916, levy was made on H. C. Strom's interest in the land, \\\"being the undivided one-fourth interest.\\\" April 25, 1916, the execution was returned unsatisfied and a new execution issued, and the sheriff, without a new appraisement, began to advertise a sale which is sought to be halted by this suit. April 24, 1916, H. ,C. Strom filed in the office of probate judge a formal disclaimer, stating that he \\\"does hereby decline to accept any interest in and to\\\" the real estate involved. This was acknowledged before a notary public. The trial court sustained a demurrer to the amended petition, and the plaintiffs appeal. Their contention is that the devisee had a legal right to disclaim or refuse to accept the devise so far as his one-eighth interest in the land is concerned, and that the other eighth interest is contingent upon, the widow remarrying or becoming unable to conduct the farm, and is vested in her subject only to be divested by the happening of one of the contingencies named in the will. It is also argued that H. C. Strom's one-eighth interest is contingent, but under the rule announced in Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, and in McLaughlin v. Penney, 65 Kan. 523, 70 Pac. 341, this interest is vested.\\nIt is suggested that the disclaimer was filed before the execution under which the sale sought to be made was issued. The first execution, however, was issued several months before. \\u2022\\nThe defendants present the theory that ordinarily a devise of property is presumed to be beneficial and its acceptance is also presumed; that the devise in this case vesting in H. C. Strom an interest in real estate, such interest by . virtue of the statute (Gen. Stat. 1915, \\u00a7 7320) .became a lien thereon from the first day of the term at which the judgment was rendered.\\nThe will gave the widow a life estate subject to enlargeriient to a one-half interest in fee by remarriage or disability, and left to the children a vested remainder in all, subject to being diminished to a vested remainder in one-half only by the remarriage or disability of their mother.\\nThe defendants cite authorities to sustain their theory that the devisee had a right to renounce, and that such renunciation related back to the date of the testator's death. Besides numerous textbooks, we have examined many decisions, and the general rule derived from all is well stated in 40 Cyc. 1898 as follows :\\n\\\"As already shown, a beneficiary under a will is not bound to accept a legacy or devise therein provided for, but may disclaim or renounce his right under the will. However, in order to be effective, the disclaimer or renunciation must be express, clear, and unequivocal, and with knowledge of the existence of the will, so as to prevent all future cavil, and operate as a quasi-estoppel. It may be by matter of record or by deed, and it has been held that a disclaimer or renunciation by parol is insufficient; but the decided weight of authority is that unequivocal acts on the part of the devisee may amount to a sufficient renunciation. Where a beneficiary disclaims or renounces his interest under the will, it becomes inoperative as to him. He takes nothing by it; and bn the other hand is thereby released from all obligations which an acceptance would have imposed on him.\\\"\\nIn Stebbins v. Lathrop, 21 Mass. (4 Pick.) 33, the supreme judicial court of Massachusetts said:\\n\\\"Until the legatees shall actually renounce their legacies, their assent to the provisions of the will, which are apparently beneficial to them, will be presumed.\\\" (p. 43.)\\nIt was said in Farnum v. Bryant, 34 N. H. 9:\\n\\\"This right it was competent for them to renounce or waive. It was no greater or more indefeasible than the right of a devisee or legatee to the devise or legacy given to him under1 a will; and it is well settled that such devise or legacy may be waived or renounced by some unequivocal act.\\\" (p. 19.)\\nIn Albany Hospital v. Albany Guardian Society, 214 N. Y. 435, in a most informing opinion going back to the early decisions it was held\\n\\\"A devise of real est\\u00e1te is an offer to the proposed beneficiary, and while the presumption is that he will accept it when he has an opportunity, there is no presumption of immediate acceptance; if acceptance does occur, the title will relate back to the time of the devise at least in the absence of intervening rights; if refusal results the devise will never take effect and title never vest.\\\" (Syl. \\u00b6 2.)\\nThe supreme court of Iowa in Mohn v. Mohn, 148 Iowa, 288, laid down the rule that:\\n\\\"While assent of a devisee to an apparently beneficial devise will be presumed he may withhold such assent and renounce -the provision made for him, and in such case no interest passes to him. A beneficiary is presumed, however, to assent to the provisions made on his behalf; especially where they are beneficial in character.\\\" (p. 300.) (In re Estate of Stone, 132 Iowa, 136, 140.)\\nIn Bradford v. Leake, 124 Tenn. 312, it was held:\\n\\\"A beneficial devise is always presumed to be accepted, and, in the absence of anything to the contrary, the gift begins at the moment of testator's death; but such a devise may be renounced, and where the renunciation is made, it relates to the moment of the gift, and prevents its ever taking effect.\\\" (Syl. \\u00b62.)\\nIn Bradford v. Calhoun, 120 Tenn. 53, the facts were in some respects similar to those before us. Mrs. Sneed died January 13, 1906, leaving a will giving to her husband, Thomas H. Sneed, a life estate in certain land, with the remainder to her sister and a niece. The will was admitted to probate four days later, on which date the husband executed a formal disclaimer duly acknowledged and registed. Prior to the death of Mrs. Sneed suit had been brought against the husband, and on January 27, ten days after the probate and renunciation, a judgment was recovered against him. Execution was issued on February 3, 1916, and levied on the estate devised to him. The remaindermen and surviving heirs sued to enjoin the sale of the property. The civil court of appeals held that the renunciation had to be by deed of record, but the supreme court reversed this ruling and held the renunciation made by Sneed sufficient. The true rule, founded upon principle, was said to be that:\\n\\\"It is optional with a devisee to accept the devise, however beneficial it may be to him, and when he elects to renounce before any act on his part indicating an acceptance, the renunciation will relate back, and will be held to have been made at the time of the gift, and will displace any levy of creditors that may in the meantime have been made:\\\" (Syl. \\u00b6 1.)\\nIt was further held that the motive in making the renunciation was nothing the creditors could complain of so long as there was no collusion with the remaindermen or residuary devisees for which he apparently received a benefit for his renunciation, of which there was no proof.\\n\\\"The renunciation is not a voluntary conveyance, void as against existing creditors, because, when he has properly renounced, the renunciation relates back to the date of the gift, and, as he has never accepted the gift, he has had nothing that could be made the subject of a voluntary conveyance.\\\" (p..60.)\\nIn Welch v. Sackett et al., 12 Wis. 243, in discussing the effect of certain mortgages made in ignorance of the mortgagee, the court, through Chief Justice Dixon, discussed at considerable length a certain English authority holding that title to property could pass into a party without his knowledge or consent and out of him without any motion or act of his signifying his willingness, a discussion most entertaining and admirable. Small patience was shown with the notion that assent, which is an act of the mind, can be presumed in case of one who has no knowledge by means of which he can in fact exercise his choice, the learned chief justice remarking that it is an impossibility \\\"that a person has consented to do that of which he knows nothing.\\\" (p. 259.)\\nThe settled doctrine, however, is that a devisee is presumed to accept a devise favorable to him. This comports with common sense and is consistent with what we know of human nature. A gift or devise by which one's estate is materially increased naturally carries a material benefit, and it is not human nature to refuse or reject such visitations of the fickle goddess of fortune, and the law does not require such an absurd result to be inferred or presumed. This being the sensible and practical presumption, it would naturally be expected that if the devisee should desire to renounce he would do so at least within a reasonable time. Here he waited more than six years, and did not move until repeated executions had been issued, and until proceedings for an actual sale, by the sheriff had begun. In the Tennessee case the judgment was not obtained until ten days after the renunciation was executed, acknowledged and registered. In that state the judgment becomes a lien for twelve months from the date it was entered and does not relate back to the first day of the term as here. Section 7320 of the General Statutes of 1915 makes judgments a lien on the real estate of the debtor. By virtue of section 10973, subdivision 8, \\\"real estate\\\" includes lands and all rights thereto and interest therein equitable as well as legal. (Kiser v. Sawyer, 4 Kan. 503; Kirkwood v. Koester, 11 Kan. 471; Ashton v. Ingle, 20 Kan. 670.)\\nIn Bank v. Murray, 86 Kan. 766, 121 Pac. 1117, it was held that real estate devised to several persons, followed by direction that it be sold and the proceeds divided equally am'ong them, was subject to the lien ,of a judgment against one of the devisees existing at the time of the testator's death. This was approved in Ward v. Benner, 89 Kan. 369, 372, 131 Pac. 609, and followed in Smith v. Hensen, 89 Kan. 792, 132 Pac. 997.\\nThe devise being beneficial, the presumption of acceptance having existed for more than six years, the interest being the present vested estate belonging to the debtor, it could not be maintained had he died during this time without renouncing or disclaiming, that this estate did not descend and pass like other property owned by him. It therefore follows that it was and is subject to the lien of the judgment on which the executions were issued.\\nIt was alleged that the administration of the estate of the testator had not reached final settlement. But it was also alleged that the executrix was appointed May 16, 1911, which would be five years and six days before the petition was filed, and there was no allegation of any unpaid claims, and it can not be presumed that the estate which had been in probate court more than five years was in a condition requiring the sale of land to pay any debts not mentioned by the pleadings.\\nThe interest sold should be described as the interest of H. C. Strom under the will of Oscar Strom. Assuming that this will be corrected, the judgment sustaining the demurrer to the amended petition is sustained.\"}"

kan/1280000.json

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+"{\"id\": \"1280000\", \"name\": \"Norma Graham, Appellee, v. The Atchison, Topeka & Santa Fe Railway Company, Appellant\", \"name_abbreviation\": \"Graham v. Atchison, Topeka & Santa Fe Railway Co.\", \"decision_date\": \"1921-01-08\", \"docket_number\": \"No. 22,895\", \"first_page\": 232, \"last_page\": \"235\", \"citations\": \"108 Kan. 232\", \"volume\": \"108\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:10:18.048542+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Norma Graham, Appellee, v. The Atchison, Topeka & Santa Fe Railway Company, Appellant.\", \"head_matter\": \"No. 22,895.\\nNorma Graham, Appellee, v. The Atchison, Topeka & Santa Fe Railway Company, Appellant.\\nSYLLABUS BY THE COURT.\\n1. Negligence \\u2014 -Leaving Motor Car in Highway \\u2014 Frightening Horses. The evidence examined, and held sufficient to show the defendant should have anticipated that a motor car, the modern substitute for a hand car, left in a highway, might under the circumstances frighten roadworthy horses.\\n2. Same \\u2014 Excessive Verdict. A verdict for $10,000, as damages for a broken ankle, causing much pain for a long time and some permanent disability, held excessive.\\nAppeal from Marion district court; Roswell L. King, judge.\\nOpinion filed January 8, 1921.\\nModified.\\nWilliam R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellant.\\nW. H. Carpenter, and W. R. Carpenter, both of Marion, for the appellee.\", \"word_count\": \"1521\", \"char_count\": \"8844\", \"text\": \"The opinion of the court was delivered by\\nBurch, J.:\\nThe action was one for damages for personal injuries resulting from negligence of the defendant in leaving a motor car, the modern substitute for a hand car, in a highway. A team of horses, drawing a spring wagon in which the plaintiff was riding, became frightened at the car, and ran away. The wagon was overturned, the plaintiff was thrown to the ground, her ankle was broken, and she sustained other injuries. She recovered a judgment for $10,000, and the defendant appeals.\\nThe highway extends north and south. The railroad crosses it from northwest to southeast. The plaintiff approached the crossing from the south. In order to make a nearly square crossing, the highway curves toward the northwest, then toward the northeast across the 'railroad track, and then toward the north. The crossing is concealed by an embankment from a person approaching from the south, until he turns to cross the railroad track. When the horses, which were well broken, were at the railroad track, they discovered the motor car fifteen or twenty feet in front of them and beside the traveled portion of the highway. The car was used by the section foreman at Burns, a station four miles south of the crossing, to transport his men and tools to their working places. The car was placed in the highway in the forenoon, and remained there until the foreman and crew returned to Burns in the evening. The foreman gave the following description of the car:\\n\\\"It was a Mudge motor car. It has a gasoline engine, a motor engine placed on the trucks of a hand car, and it is run with a belt from the engine to the axle of the car. The car was painted red, the seat board, and on the back of it is two parts about a foot and three-quarters square that stood up and held the frame; they were painted red; and on the front end was \\u2014 On the back end was a battery box. The battery box set inside of this frame and was about six to eight inches deep. It was about eighteen inches long and crossways was about ten inches wide, probably, or a little more. That was painted red.\\\"\\nOn the car were tools such as section men use. The accident occurred between two and three o'clock in the afternoon. Between twelve and one o'clock of the same afternoon, another team of horses, approaching the crossing from the south, shied at the car when they reached the railroad track. The driver was able to control them, but he had trouble in getting by the car, which stood next to the beaten track of the highway. The railroad cut off a small triangular tract of land from the northeast corner of a section, and crossed a highway extending east and west, at what the witnesses called the north crossing. When the horses which ran away became frightened, they backed off the south crossing, and then ran in a northwesterly direction along a road on the west side of the railroad. While they were running they met a freight train, the engine of which crossed the south crossing about the time the horses reached the north crossing.\\nThe court properly defined negligence, and gave the jury the following instruction:\\n\\\"No. 6. You are instructed that a railroad company has the right to provide its section hands with a car to be used by them in the performance of their duties in keeping its track in good condition and repair for the safe operating of its trains, and in the use of such car the track or section hands have the right and duty to take or remove the same from the track to avoid collisions with passing trains, and in doing so if they place it upon -the railroad right of way, and even though in proximity to a public highway crossing, would not of itself constitute negligence on the part of the railroad company, and the fact that such a car is operated by motor power instead of hand power will not of itself constitute negligence. The construction and make-up of such car and manner of its placement adjacent to a highway must be such as is calculated to scare ordinary gentle horses used for carriage upon such highway and which an ordinary careful person by the exercise of proper foresight would know would be likely to scare such horses, in order to constitute negligence by such an act.\\\"\\nThe jury found the section foreman and men were negligent in placing and leaving the motor car on the highway. The defendant argues there was no proof of negligence.\\nNeither party complains of the quoted instruction, but each one strives to make more of it than the language used warrants. The instruction does not define either the privilege or lack of privilege of the defendant to make use of the highway as a place to keep the car during the greater part of the day, while the section men were working in the vicinity of the crossing. That subject is an interesting one; but as the case was submitted, the meritorious question for decision is whether or not the evidence tends to show that an ordinarily prudent person would have anticipated that the car might frighten roadworthy horses.\\nThe court has no standard by which to determine what will frighten a fairly gentle horse. Hand-car cases are collated in 42 L. R. A., n. s., 571, note, and the weight of authority is that the question- whether or not, in a particular instance, an object such as a hand car naturally tends to frighten horses of ordinary gentleness, is one to be determined by the jury, from the appearance and locality of the object, and other pertinent circumstances. If the object does have such a tendency, an ordinarily prudent person would exercise care accordingly. In this instance, the object was one seldom encountered in a country road. It presented a striking and novel appearance, quite different from that of motor vehicles which frequent a highway, and quite different from that of any object which horses are accustomed to meet. The car was so placed that horses coming from the south were suddenly and unexpectedly confronted by the strange thing. This fact is important, because it is a matter of common knowledge that well-trained horses may be startled by coming abruptly upon even familiar objects, especially if such objects be out of their natural setting. Two teams of gentle horses \\u2014 all that came to the crossing from the south that day, so far as known \\u2014 were frightened by the car, and the court concludes the verdict was sustained by sufficient evidence.\\nSome of the section men were Mexicans, who could not speak English. The defendant took their depositions, and selected, employed and paid an interpreter to translate questions and answers. Before the depositions were taken, the plaintiff's attorney examined the interpreter, to ascertain his trustworthiness. The defendant complains because the court permitted this examination to be read in connection with the depositions. Some of the questions propounded to the interpreter contained insinuations, but his answers were straightforward, and disclosed both competency and lack of bias in favor of the defendant. Only a few sentences of the testimony translated by the interpreter bore upon matters of special importance, and those were doubtless overborne by contradictory evidence, rather than by distrust of the interpreter. Besides all this, objection to reading the examination of the interpreter was virtually withdrawn.\\nThe plaintiff's injuries were severe. She suffered greatly and for a long time, and will be permanently disabled to some extent. .This court is of the opinion the verdict was excessive, not on account of passion or prejudice on the part of the jury, but through overestimate of damages for the measurement of which there is no definite standard. The functions of jury, trial court and reviewing court in such cases have been discussed so many times, it is not necessary to do so again.\\nThe judgment is reduced to $6,000. Should the plaintiff submit to the reduction, the judgment as modified will be affirmed. If not, the district court is directed to grant a new trial of the single issue of damages.\"}"

kan/1291934.json

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+"{\"id\": \"1291934\", \"name\": \"The Kansas City Life Insurance Company, Appellee, v. Agnes T. Wilkinson, Appellant; Sadie Catherine Smith and Ira Smith, Appellees\", \"name_abbreviation\": \"Kansas City Life Insurance v. Wilkinson\", \"decision_date\": \"1928-02-11\", \"docket_number\": \"No. 27,864\", \"first_page\": 305, \"last_page\": \"307\", \"citations\": \"125 Kan. 305\", \"volume\": \"125\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T00:00:32.511806+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Kansas City Life Insurance Company, Appellee, v. Agnes T. Wilkinson, Appellant; Sadie Catherine Smith and Ira Smith, Appellees.\", \"head_matter\": \"No. 27,864.\\nThe Kansas City Life Insurance Company, Appellee, v. Agnes T. Wilkinson, Appellant; Sadie Catherine Smith and Ira Smith, Appellees.\\n(264 Pac. 37.)\\nOpinion filed February 11, 1928.\\nWalter S. Keith and Harold C. McGugin, both of Coffeyville, for .the appellant.\\nDallas W. Knapp and Charles D. Ise, both of Coffeyville, for the appellee.\", \"word_count\": \"850\", \"char_count\": \"5078\", \"text\": \"The opinion of the court was delivered by\\nDawson, J.:\\nThis was an action to ascertain the lawful beneficiary of an insurance policy. *\\nOn August 6, 1925, one Stanley R. Smith, a minor 17 years of age, applied for and received a life insurance policy for $1,000 issued by the plaintiff. The boy's mother, Sadie Catherine Smith, was named as beneficiary. The policy was taken out with her consent and approval, and she and her son had an oral agreement that in consideration of her paying the premium he would not change the beneficiary during her lifetime. In consonance with this agreement she gave the lad $50 with which to pay the premium, and the policy was placed in her keeping. The policy, however, in express terms did provide that the insured had the right to change the beneficiary.\\nSome months later the insured took the policy from his mother's custody without her knowledge, and notified the insurance company that he desired to change the beneficiary from his mother to \\u00c1gnes T. Wilkinson, designated as fiancee of the insured. The company complied and Miss Wilkinson's name was inserted accordingly.\\nA few weeks later the insured committed suicide. Not until then did the mother know of the change in the designated beneficiary. Miss Wilkinson gave the insurance company formal notice and proof of death and demanded the insurance. The mother also claimed the insurance on the ground that the insured was a minor; that the insurance contract was made with her advice and approval; that the policy was taken from her custody and the change of beneficiary made without her knowledge or consent, and that the change was void.\\nConfronted with this situation, the insurance company took the initiative to have these conflicting demands adjudicated. It brought this action, impleaded both claimants, set up the facts so far as it was concerned therewith, paid the $1,000 into court and retired from the lawsuit, leaving the two claimants to fight it out.\\nIssues were joined by appropriate pleadings. Miss Wilkinson was a minor, and by her guardian ad litem she first demurred to and then traversed all the allegations of the mother's answer and cross petition. Ere this lawsuit was tried below Miss Wilkinson married one Sandion, thereby attaining her majority.\\nThe evidence for the mother tended to establish the facts as set out above. The. testimony for the named beneficiary disclosed nothing of present consequence.\\nThe trial court found \\\"that all the allegations in the answer and cross petition . of Sadie Catherine Smith are true,\\\" and gave judgment accordingly.\\nThe defeated claimant appeals.\\nTo justify the judgment appellee relies on two propositions, the first of which was the oral contract between herself and her son whereby in consideration of her paying the premiums she was entitled to keep the policy in her custody, and the beneficiary was not to be changed in her lifetime without her consent. Appellant contends that the plaintiff's testimony pertaining to this contract was incompetent, and the contract itself not binding. So far as concerns the competency of the evidence, it does not violate the code rule invoked against it. (R. S. 60-2804.) The insurance company had paid the money into court. It had waived every defense of law, fact and of procedure of which it might have availed itself. Appellant in this lawsuit does not occupy the position of \\\"the adverse party\\\" as \\\"executor, administrator, heir at law, next of kin, surviving partner or assignee\\\" of the insured; and the established policy of this court is to construe strictly statutory and other rules of evidence which limit judicial inquiry to- ascertain the truth. (Armstrong v. Street Railway Co., 93 Kan. 493, 503, 144 Pac. 847; Cadwalader v. Pyle, 95 Kan. 337, 148 Pac. 655; Collins v. Hayden, 104 Kan. 351, 179 Pac. 308; Flack v. Brewster, 107 Kan. 63, 190 Pac. 616; Hall v. Wilson, 121 Kan. 606, 249 Pac. 668.) The court holds that evidence to prove the oral contract of mother and son was competent; the contract itself was not against public policy; and as the insurance company itself is not complaining about it, there is no reason in equity or good conscience why it should not be enforced.\\nThis leaves it unnecessary to consider the other proposition relied upon by appellee to uphold the judgment \\u2014 the mother's right as heir of her minor son to disaffirm the change in the contract substituting appellant's name for appellee's as beneficiary. But see Insurance Co. v. Brubaker, 78 Kan. 146, 96 Pac. 62, syl. \\u00b6 3; 31 C. J. 1066; 14 R. C. L. 234.\\nOther matters discussed in appellant's brief have been carefully noted. They suggest nothing which would permit the judgment to be disturbed, and it is therefore affirmed.\"}"

kan/1297617.json

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+"{\"id\": \"1297617\", \"name\": \"The Centerville State Bank, Appellee, v. The National Surety Company, Appellant\", \"name_abbreviation\": \"Centerville State Bank v. National Surety Co.\", \"decision_date\": \"1932-03-05\", \"docket_number\": \"No. 30,352\", \"first_page\": 858, \"last_page\": \"863\", \"citations\": \"134 Kan. 858\", \"volume\": \"134\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:23:06.125086+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Centerville State Bank, Appellee, v. The National Surety Company, Appellant.\", \"head_matter\": \"No. 30,352.\\nThe Centerville State Bank, Appellee, v. The National Surety Company, Appellant.\\n(8 P. 2d 361.)\\nOpinion filed March 5, 1932.\\nDouglas Hudson, of Fort Scott, and Henry L. Jost, of Kansas City, Mo., for the appellant.\\nJohn A. Hall, of Pleasanton, for the appellee.\", \"word_count\": \"2413\", \"char_count\": \"14070\", \"text\": \"The opinion of the court was delivered by\\nSloan, J.:\\nThis was an action brought to recover on a fidelity bond. It was removed to the federal court, where on a trial the court found, and rendered judgment, in favor of the defendant. (Centerville State Bank v. National Surety Co., 27 F. 2d 552.) It was appealed to the circuit court and there held that it was not removable and remanded to the state court for trial (Id., 37 F. 2d 338), which resulted in a judgment in favor of the plaintiff, from which the defendant appeals.\\nLester C. Brownback was, on July 8, 1919, president of the Centerville State Bank, and on that date the appellant issued to said bank a fidelity bond, which was renewed from year to year to and including January 8, 1926, in the same form. On January 10, 1923, Brownback was elected cashier of the bank, and one John C. Dexter was elected president. Although the bond was continued in force by the payment of the annual premium until January 8, 1926, the appellant was not notified of the change in the official position of the bonded. The court found as a fact that the defalcation complained of took place during the time Brownback was cashier.\\nThe principal question presented to this court is whether the change made in the officers of the bank, whereby Brownback ceased to be president and became cashier, relieved the appellant from any further liability on the bond where no notice was conveyed to it of the change. The answer to this question must be found in the construction of the contract and its application to the situation. The surety bond is, in part, as follows:\\n\\\"The National Surety Company (surety), in consideration of the payment of the premium of twenty-five and 00/100 dollars ($25), and payable on the first day of June, during each and every year that this bond shall continue in force, hereby agrees to make good within sixty (60) days after receipt of proof satisfactory to it, any loss, not exceeding ten thousand dollars ($10,000), which Centerville State Bank, employer, may sustain by reason of any act of larceny or embezzlement of Lester Cleveland Brownback, employee, as president in the employer's service, committed after the 1st day of June, 1919, and before the termination of this bond, subject to the following express conditions; which shall be conditions precedent to any recovery hereunder:\\n\\\"1st. . . . All statements which the employer has furnished the surety, concerning the employee or his duties or accounts are warranted by the employer to be true, and if any of the statements be false or untrue, this obligation shall be null and void and of no effect from the beginning.\\\"\\nHere follows paragraphs numbered two to nine, inclusive, which deal with the question of notice and other obligations to be performed on the part of the bank in the event of any knowledge or notice on its part of the breach of any of the conditions of the bond. The bond is dated July 8, 1919. It will be noted that the bond on its face refers to the statement made in the application on which the bond was issued, and this makes it necessary to examine into the application, first of which is the employee's statement:\\n\\\"Employee's Statement.\\n\\\"To the National Surety Company, New York City:\\n\\\"The undersigned hereby agrees that you may indemnify the employer hereinafter named in any amount the employer may desire in favor of Center-ville State Bank (employer) to such extent and in such form as may be agreed upon between you and the employer in respect of the acts of the undersigned in said employer's service as president at Centerville in the state of Kansas or in any other position in the employer's service to which the undersigned may be appointed, and hereby afih'ms that the following answers are the truth without reservation, and that they are made to induce the National Surety Company to indemnify the said employer as herein above mentioned.\\\"\\nHere follows a list of thirty-two questions which the employee is required to answer, dealing with his age, nationality, family relations, former employment and property. Among others, the following questions are asked and answered:\\n\\\"9. What is the nature of this employer's business? Banking.\\n\\\"11. What are your duties in this position? General bank duties. What experience have you had relative to the duties and accounts of this position? Assistant cashier 2% years.\\n\\\"For good and valuable considerations, the undersigned hereby agrees to indemnify and save harmless the said National Surety Company from and against any and all loss, damage, fees, or expense which it may incur or sustain b3r reason of having agreed to indemnify as hereinabove set forth against the acts or omissions of the undersigned in the positions mentioned and referred to, or in any other position that may be filled by him, and to make good and reimburse to the company all sums of money which it may pay or become liable to pay in consequence of an3'' such agreement or indemnity.\\\"\\nThis is followed by the employer's statement, which consists, among other things, of the following:\\n\\\"Questions to be answered over the signature of the president or the vice president of Centerville State Bank in connection with the request which we have received to indemnify you against loss which 3'ou may sustain not to exceed $10,000 through certain acts of Lester Cleveland Brownback (hereinafter referred to as the employee) in your employ at Centerville in the position of president.\\\"\\nHere follows twenty questions, many of which are subdivided, in which the names of the directors of the bank, the kind of bank, the time of the meeting of the board of directors, the salary of the employee, the interest of the employee in the bank, his financial relation to the bank, -when the bank is examined, when depositors' pass books are balanced, and other questions relating to the handling of the business of the bank are required to be and are answered. Among others, are the following:\\n\\\"4. (a) How many employees are there in the bank besides above-named employee, and what are their respective positions? (o) One, the cashier.\\n\\\"(b) Will they be required to give corporate bond? (b) Yes.\\n\\\"5. Is the employee permitted to make loans or allow overdrafts or discounts without consulting the president or the vice president? If permitted to do so, please state under what limitations. No.\\n\\\"6. To whom does employee report loans, overdrafts and discounts, and how often? Board of directors; also the state bank commissioner; report to each quarterly.\\n\\\"8. Is the president or the vice president in daily attendance at the bank? Yes.\\n\\\"13. Will employee have authority to sell or negotiate securities held or owned? Yes.\\n\\\"14. Will employee's time be devoted exclusively to bank? Yes.\\n\\\"The foregoing answers are warranted to be true, and the truth of each thereof is a condition precedent to the creation of any liability under the indemnity desired, or any other indemnity that may be granted by the National Surety Company, to the undersigned upon the above-named employee in said position or under any renewal or continuation of such indemnity.\\\"\\nIt is earnestly contended by the appellant that it must be presumed the contract was made in view of the duties of the president and cashier as defined by statute, and that the change from president to cashier so augmented the obligations of the surety that the bond is no longer binding. .Is this contention supported by the terms of the contract and circumstances under which it was entered into? If it can be said that the parties in entering into the contract had in contemplation that the president would perform only the duties defined by law, the conclusion contended for is sound. On the other hand, if the parties took into consideration the duties which the bonded actually performed, and not theoretical duties,then the conclusion must necessarily be unsound. In other words, were the parties dealing with facts or theories? The answer is found in the application. The appellant was not content to rest upon the information that the bonded was the president of the bank and let the duties be defined by law. It inquired into the minute details of the authority, duties and responsibilities of the bonded, and the manner in which the bank was operated and its business handled. The plain language of the bond is to the effect that it is issued on the information furnished in the application. This information deals with facts and not theories. The appellant is a compensated surety. It prepared the contract, and the language used is of its choosing. It is in the nature of a contract of insurance, and the rules applicable for the construction of insurance policies are applicable to it. If, looking at all the provisions, the bond is fairly and reasonably susceptible of two constructions, one favorable to the bank and the other favorable to the surety company, the former, if consistent with the object for which the bond was given, must be adopted. (State v. Construction Co., 91 Kan. 74, 136 Pac. 905; Bank v. Colton, 102 Kan. 365, 170 Pac. 992.)\\nThe appellant assumed the responsibility of inquiring into the facts relating to the employment of the bonded, and it will be observed from the context of the bond and the application that it did not concern itself particularly about the official title, and no reference is made to statutory duties, but the whole matter is treated as an employment and the duties and responsibilities relating thereto. It knew that the bonded would be the manager of the institution, assisted only by a cashier, with full authority to sell and negotiate securities held by the bank, and to do a general banking business, subject only to the limitation imposed on him by the board of directors and the banking department. This included the whole field of banking and all the duties and responsibilities incident thereto, and it was such an employee which the appellant undertook to insure against any act of larceny or embezzlement. It is clear that under such circumstances the title president or cashier was a mere incident in the contract, and was of little consequence to the appellant so long as it was fully advised on the facts relating to the duties and responsibilities of the employment. This is a fair construction of the contract and carries out the purpose for which it was written. We hold, under the circumstances of this case, that the change in the title of the bonded did not, standing alone, vitiate the bond unless such change materially augmented the duties and responsibilities of the bonded and thereby increased its risk.\\nOn this question the court found as a fact that Brownback, while president of the bank, was in actual charge of the assets of the bank and had authority to make loans, receive deposits, buy and sell commercial paper and securities, receive liberty bonds from customers for safe keeping, pay checks, receive money from customers of the bank to be transmitted to the county treasurer for taxes, write checks on the bank's funds and draw drafts on the bank's correspondent banks in other cities. The court also found that during the period he was cashier of the bank he had the same responsibilities, performed the same duties and exercised the same authority. Consequently the change in the title of the employment in no way augmented the duties and responsibilities of the bonded, and in no way increased the liability of the appellant.\\nIn the case of Rollstone National Bank v. Carleton, 136 Mass. 226, the court said:\\n\\\"In an action against the sureties upon a bond, given to a bank, and conditioned for the faithful discharge by C. of 'all his duties as clerk of said bank,' and against the misappropriation of any of the funds of the bank 'which may come under the care or control of said C. as clerk,' the evidence showed that C., during the whole term of his employment, performed the duty, to some extent, usually performed by a teller, of paying and receiving money over the counter of the bank. It was found as a fact that 'the duties as clerk,' contemplated in the bond, did not mean merely the duties of a bookkeeper, but that they embraced the duty of receiving and paying out money at the counter of the bank. Held, that the defendants were not entitled to a ruling, as a matter of law, that there had been such a change in the duties of the clerk as to discharge them from liability.\\\" (Syl. \\u00b6 1.)\\nIn the case of Amer. Telegraph Co. v. Lennig, 139 Pa. 594, the court said:\\n\\\"Nor will the imposition of additional, distinct and consistent duties upon the principal, or his appointment to an additional office, his original office still being retained, necessarily relieve the surety from his obligation, if the new duties, or the new office, have no such connection with the old as to interfere with or affect the original employment.\\\" (Syl. J 5.)\\nWe think the rule is that where the authority, duties and responsibilities of the employment are not materially changed or augmented so as to increase the risk, the surety is not discharged. (25 C. J. 1097; 43 A. L. R. 1000.)\\nWe hold that the risk was not augmented by the change in the official designation of the bonded, and that the appellant is liable for the breach of the condition of the bond.\\nIt is next contended by the appellant that the findings of fact, and especially the findings relating to the embezzlement of the proceeds of liberty bonds, are not supported by the evidence. The findings of the trial court are quite voluminous and set forth in detail the transactions of the bonded. We have examined the evidence \\u2014no good purpose could be served in setting it out herein \\u2014 and find that there is substantial evidence supporting the findings, and that the findings support the judgment.\\nThe judgment is affirmed.\"}"

kan/1297773.json

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+"{\"id\": \"1297773\", \"name\": \"George Frye, Appellee, v. Frances Frye, Appellant\", \"name_abbreviation\": \"Frye v. Frye\", \"decision_date\": \"1931-11-07\", \"docket_number\": \"No. 29,742\", \"first_page\": 3, \"last_page\": \"5\", \"citations\": \"134 Kan. 3\", \"volume\": \"134\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:23:06.125086+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George Frye, Appellee, v. Frances Frye, Appellant.\", \"head_matter\": \"No. 29,742.\\nGeorge Frye, Appellee, v. Frances Frye, Appellant.\\n(4 P. 2d 415.)\\nOpinion filed November 7, 1931.\\nN. J. Wollard, of Kansas City, and Edgar C. Bennett, of Marysville, for the appellant.\\nR. L. Helvering and Raymond E. Smith, both of Marysville, for the appellee.\", \"word_count\": \"746\", \"char_count\": \"4405\", \"text\": \"The opinion of the court was delivered by\\nJohnston, C. J.:\\nThis is an appeal by Frances Frye, from a judgment granting her husband, George Frye, a divorce based on the ground that she had been guilty of gross neglect of duty. No other ground of divorce was alleged by him. He introduced evidence in support of his allegation and at the close of the testimony the defendant claimed there was an insufficiency of proof to establish the ground charged and filed a demurrer to plaintiff's evidence, which was overruled. Defendant introduced no evidence, but stood upon her demurrer, whereupon the court entered judgment for plaintiff.\\nThe defendant's main contention is that while plaintiff himself gave testimony of some defaults on the part of the wife, they did not constitute gross neglect of duty, but the ground relied on for reversal was that plaintiff's testimony, which was the only testimony touching the ground for divorce, had not been corroborated, as- it must be to warrant the granting of a divorce in such a situation. Defendant plaintiff alone. Testimony as to the character and reputation of the testimony, which provides:\\n\\\"In all actions for divorce or alimony, or for both divorce and alimony, hereafter to be tried, the parties thereto, or either of them, shall be competent to testify upon all material matters involved in the controversy to the same extent as other witnesses might do: Provided, however, That nothing in this act shall be construed as authorizing the granting of a decree of divorce upon the uncorroborated testimony of either husband or wife, or both of them.\\\" (R. S. 60-1509.)\\nAs stated, there was no testimony produced as to the alleged delinquencies of the defendant, except that given by the plaintiff. He did introduce six other witnesses who testified only as to the reputation and standing in the community of the plaintiff. They stated that his character and reputation were good, that he was regarded to be an honest, industrious, truthful and peaceable man, but none of them testified as to any defaults of the defendant. So there was no corroboration of the plaintiff's testimony as to the neglect of the wife of marital duties. This cannot be regarded as a compliance with the statute barring the granting of a divorce upon the uncorroborated testimony of the husband or wife. Even if the testimony of the complaining spouse had been supported by that of the defending spouse, it would not have warranted the granting of a divorce, as the statute provides that a divorce cannot be granted upon the uncorroborated testimony of both of the parties. There is not and cannot well be a doubt of the power of the state to intervene and prescribe the rule requiring corroboration. The state is interested in the marriage relation and the fostering, protecting and permanency of it as an institution of society. The state is interested in preventing the disruption of the marital relation upon petty or unimportant causes or for any reason other than those prescribed by the -legislature as grounds for the dissolution of the relation. The state is also interested in preventing the rupture of the relation by the collusion, connivance or fraud of the parties themselves in procuring a judgment of divorce. To this end it has been enacted that the unsupported testimony of one or both of the parties will not justify the granting of a divorce. The matter in issue in this case was whether the delinquency of the defendant set up in the petition had been established. That fact could not be shown by the testimony of the plaintiff alone. Testimony as to the character and reputation of the plaintiff did not corroborate the testimony given by him as to the defaults of his wife. The corroboration required by the statute is. of the delinquencies of the spouse from whom a divorce is sought. The statute was enacted for a good and valid purpose and there being no corroboration it follows that the granting of a divorce was erroneous, and hence there must be a reversal of the judgment. It is therefore set aside with the direction to sustain the defendant's demurrer to plaintiff's evidence.\"}"

kan/1301020.json

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+"{\"id\": \"1301020\", \"name\": \"H. H. Clark, Appellant, v. George Townsend, revived in the name of M. L. Schaden, as Administratrix, etc., Appellee\", \"name_abbreviation\": \"Clark v. Townsend\", \"decision_date\": \"1915-12-11\", \"docket_number\": \"No. 18,971\", \"first_page\": 650, \"last_page\": \"654\", \"citations\": \"96 Kan. 650\", \"volume\": \"96\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:40:31.940452+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"H. H. Clark, Appellant, v. George Townsend, revived in the name of M. L. Schaden, as Administratrix, etc., Appellee.\", \"head_matter\": \"No. 18,971.\\nH. H. Clark, Appellant, v. George Townsend, revived in the name of M. L. Schaden, as Administratrix, etc., Appellee.\\nSYLLABUS BY THE COURT.\\nI. General Denial \\u2014 Evidence of Special Contract. In an action for the reasonable, value of services rendered it is not error to admit under a general denial evidence of an agreement that no charge was to be made therefor, where no actual prejudice appears.\\n2. Written Contract for Services \\u2014 Parol Evidence \\u2014 Gratuitous. Where the recipient of a letter authorizing him to buy certain property upon certain terms, as the agent of the writer, nothing being said about compensation, brings an action for the reasonable value of his services thereunder, the defendant may show a prior agreement that no charge was to be made, if under all the circumstances the document does not appear to cover the entire contract of the parties.\\n3. Same \\u2014 Unsigned Memorandum \\u2014 When Admissible. An unsigned memorandum of a proposed contract, although of a different effect from the instrument finally executed, may be received in evidence for the purpose of showing the relation of the parties, where that will throw light upon their understanding with regard to a subsequent transaction.\\nAppeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.\\nOpinion filed December 11, 1915.\\nAffirmed.\\nE. C. Little, of Kansas City, for the appellant.\\nWilliam G. Holt, and James K. Cubbison, both of Kansas City, for the appellee.\", \"word_count\": \"1715\", \"char_count\": \"9986\", \"text\": \"The opinion of the court was delivered by\\nMason, J.:\\nH. H. Clark sued George Townsend for the reasonable value of his services in negotiating for him the purchase of a number of tracts of land. A verdict was returned for the defendant, on which judgment was rendered. The plaintiff appeals.\\nThe only reply was a general denial. The defendant was permitted to introduce evidence of an agreement that the services rendered by the plaintiff were to be gratuitous. The plaintiff contends that this was not permissible under a mere general denial. Text-writers approve the practice adopted (3 Ene. L. & P. 1348; 1 Sutherland's Code Pleading Practice and Forms, \\u00a7410; Phillips on Code Pleading, \\u00a7 383), citing, however, but one decision in its support (Schermerhorn v. Van Allen, 18 Barb. [N. Y. Supr. Ct.] 29). The contrary rule has been announced, likewise with the citation of but one case. (Kinne's Pleading and Practice, 2d ed., \\u00a7 298, p. 284, citing Scott v. Morse, 54 Iowa, 732, 6 N. W. 68, which was followed in Schroeder v. Schroeder, 119 Iowa, 67, 93 N. W. 78.) A similar disagreement exists as to proving any special contract under a general denial. (22 Encyc. of PI. and Pr. 1371, note 5.) In an action for the value of services the object of good' pleading would seem to be promoted by alleging in the answer that an agreement existed that no charge was to be made where that defense is to be relied on. But here the petition itself was framed in the most general terms \\u2014 practically the old common counts \\u2014 while reliance was had upon a written contract. The judgment was rendered upon a second trial, and it is clear that the plaintiff was in no way misled or prejudiced by the form of the pleadings. Therefore the ruling as to the scope of the answer could not be a ground of reversal, Whatever rule of pleading should be followed. (Civ. Code, \\u00a7 134, 141.)\\nThe plaintiff produced a document in the form of a letter, dated January 8, 1909, addressed to him and signed by the defendant, which read as follows, the parts relating to the terms of purchase being omitted:\\n\\\"You are hereby authorized, acting for us and as our agent, to purchase any or all of the following tracts of land at prices not exceeding the prices indicated after said tracts. . . . 'We will guarantee you in the matter of the money you advance on these tracts which are taken \\u2022for us.\\n\\\"You will, of course, get these contracts at just as much lower than these prices as you possibly can.\\\"\\nThe plaintiff contends that in allowing testimony of a prior or contemporaneous oral agreement that his services were to be rendered without charge the court erred, such ruling being in violation of the principle which forbids the reception of parol evidence to vary the terms of a written contract. Wherever the law attaches a fixed consequence to the language used, and thus by interpretation reads into a document a term which otherwise might be regarded as omitted, the matter implied is as much a part of the instrument as that which is written, and can not be varied by oral evidence. (Doolittle v. Ferry, 20 Kan. 230; 17 Cyc. 570.) Therefore where a writing is silent as to some particular element of a contract (for instance the time within which it is to be performed, or the amount to be paid), under circumstances compelling the inference of an intention to be governed by the standard of what is reasonable, a specific agreement on the subject, resting in parol, may not be shown. (17 Cyc. 570, 571, notes 66 and 69; 9 Encyc. of Ev. 349; 2 Parsons on Contracts, p. *552; Standard Box Co. v. Mutual Biscuit Co., 10 Cal. App. 746, 103 Pac. 938; Cameron Coal & Mercantile Co. v. Universal Metal Co., 26 Okla. 615, 110 Pac. 720; Smith Sand & Gravel Co. v. Corbin, 81 Wash. 494, 142 Pac. 1163.) But whether oral evidence may be allowed to supplement a contractual writing, by supplying a term not therein referred to, depends upon whether the instrument was intended to cover that feature of the transaction. (4 Wigmore on Evidence, \\u00a72430; 17 Cyc. 741.) Language has often been used indicating that this must be determined from a mere inspection of the document. For instance, the second paragraph of the syllabus in Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867, might be open to that interpretation. But a more accurate statement of the rule allows outside evidence for the purpose at least of showing the conditions surrounding the transaction and the relations of the parties. (17 Cyc. 746, 747; 4 Wigmore on Evidence, \\u00a7 2431.) Where one performs services at the request of another without any express agreement as to compensation, a contract to pay a reasonable amount is implied, in the absence of circumstances giving rise to a different inference. Yet this fact does not prevent the making of a memorandum covering the character of services to be rendered, but not the amount of compensation.\\nThe presumption that one who performs services at the request of another is entitled to reasonable compensation is rebuttable. A counter presumption may arise from circumstances justifying an inference of an intention to do the work gratuitously. (40 Cyc. 2845.) Here the letter from the defendant to the plaintiff does not purport to set out all the terms of a contract between them. It is in substance a certificate of the plaintiffs authority to represent the defendant in making contracts for the purchase of the tracts referred to\\u2014 in effect a power of attorney. It is equally consistent with an express agreement to pay according to the time consumed, or upon a commission basis, or with an implied understanding that the plaintiff should be paid whatever was reasonable. Therefore evidence was competent that tended to show an express agreement that no charges should be made, or to show circumstances justifying the inference that such was the intention of the parties. An exactly similar situation was presented in \\\"Joannes\\\" v. Mudge & another, 88 Mass. 245, where the opinion concludes thus: \\\"The power of attorney says nothing about compensation. It has its full effect equally whether he was to be paid or not. The law will imply a promise to pay for services rendered by the plaintiff at the request of the defendants, whether the request is written or oral, if the services are of value, and nothing more appears; but the employment is merely evidence of a promise to pay, and the implication may be rebutted by evidence.\\\" (p. 246.) Cases illustrating the principle are collected in 9 Encyc. of Ev. 452, note 84, and in 17 Cyc. 745, note 43.\\nFor the purpose of proving that the parties to the transaction-understood that Clark was to receive no payment for his services in buying the land for Townsend, the defendant introduced a writing prepared in December, 1908, as the basis of a written contract which was executed on January 6, 1909. The writing itself was never signed. One paragraph of it read as follows:\\n\\\"H. H. Clark agrees to lend his aid in procuring such additional land & privileges for the benefit of the Constn. Co.'s project for one-fourth stock in all companies as may be deemed necessary by Geo. Townsend and C. F. Enright without cash remuneration, not to exceed 30 days. The optional money to be paid from sale of the land and Clark to be Industrial Commissioner.\\\"\\nThe plaintiff contends that this document should not have been admitted because it never was executed; because it constituted a part of the negotiations which led up to and culminated in the contract of January 6; and because upon its face it related to an agreement between Clark and a construction company, and not between Clark and Townsend. Clearly it was not admitted as a contract binding upon the plaintiff, or for the purpose of affecting in any way the instrument of January 6. It was obviously received as showing one step in the development of the relations of Clark and Townsend, for whatever light it might throw upon the question whether or not their intention was that Clark was to be paid in money for his services in buying the land. In that view we think it was competent. Various circumstances were brought out from which it might be inferred that Clark had such an interest in furthering the projects which Townsend was promoting that he gave his services to that end with the understanding that he was .not to be otherwise compensated. This question seems to have been fairly tried out, submitted and determined, and we' find no reason for interfering with the decision of the trial court.\\nThe judgment is affirmed.\"}"

kan/1301144.json

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+"{\"id\": \"1301144\", \"name\": \"C. M. Millisack and Dr. H. H. Keith, Appellees, v. George Kelly, Appellant\", \"name_abbreviation\": \"Millisack v. Kelly\", \"decision_date\": \"1915-11-06\", \"docket_number\": \"No. 19,696\", \"first_page\": 584, \"last_page\": \"586\", \"citations\": \"96 Kan. 584\", \"volume\": \"96\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:40:31.940452+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. M. Millisack and Dr. H. H. Keith, Appellees, v. George Kelly, Appellant.\", \"head_matter\": \"No. 19,696.\\nC. M. Millisack and Dr. H. H. Keith, Appellees, v. George Kelly, Appellant.\\nSYLLABUS BY THE COURT.\\nPromissory Note: \\u2014 Contract for Payment and Surrender \\u2014 Construction of Contract. The following- contract does not provide for the surrender of the notes mentioned on signing the contract, but does require their surrender if paid in the manner therein set out:\\n\\u201cWe, the undersigned directors of the King Manufacturing Company, hereby authorize the secretary of the said company to turn over to C. M. Millisack and Dr. H. H. Keith the first $1600 received from the sale of the capital stock of the said company in excess of $2000 to be sold first for cash.\\n\\u201cThe stock issued on the receipt of the said $1500 is to be transferred from C. M. Millisack and Dr. H. H. Keith to the purchasers in equal proportions as sold.\\n\\u201cIn consideration of this transaction the said C. M. Millisack and Dr. H. H. Keith agree to surrender the promissory notes given by the undersigned and aggregating $1000.\\n\\u201cThe secretary of the said company is hereby authorized to pay out of the general fund of the company any accruing interest resulting from this agreement and charge same to the stock commission' account.\\u201d\\nAppeal from Sherman district court; Charles W. Smith, judge.\\nOpinion filed November 6, 1915.\\nAffirmed.\\nCharles I. Sparks, of Goodland, for the appellant.\\nE. F. Murphy, of Goodland, for the appellees.\", \"word_count\": \"844\", \"char_count\": \"4882\", \"text\": \"The opinion of the court was delivered by\\nMarshall, J.:\\nThis is an action to recover on a promissory note. From a judgment for the plaintiffs the defendant appeals.\\nThe defendant admits the execution of the note, but claims exemption from payment by reason of the following contract:\\n\\\"We, the undersigned directors of the King Manufacturing Company, hereby authorize the secretary of the said company to turn over to C. M. Millisack and Dr. H. H. Keith the first $1500 received from the sale of the capital stock of the said company in excess of $2000 to be sold first for cash.\\n\\\"The stock issued on the receipt of the said $1500 is to be transferred from C. M. Millisack and Dr. H. H. Keith to the purchasers in equal proportions as sold.\\n\\\"In consideration of this transaction the said C. M. Millisack and Dr. H. H.-Keith agree to surrender the promissory notes given by the undersigned and aggregating $1000.\\n\\\"The secretary of the said company is hereby authorized to pay out of the general fund of the company any accruing interest resulting from this agreement and charge same to the stock commission account.\\\"\\nIn the month of October, 1910, The King Manufacturing Company was a corporation doing business at Topeka, and C. M. Millisack and Dr. H. H. Keith, the plaintiffs, and George Kelly, the defendant, with J. O. Boyle, William Seyler and F. L. Speer, were stockholders and directors of the company. At that time the company was indebted to various creditors in the sum of $1500. At a meeting of the board of directors, at which the defendant was present, it was proposed that if the plaintiffs would furnish the company with $1500 with which to meet the indebtedness, the defendant Kelly, with J. O. Boyle, William Seyler, and F. L. Speer, would each execute and deliver to the plaintiffs their individual notes for $250. The plaintiffs paid the company the $1500, which was used to pay its debts, and the defendant and the other directors each executed to the plaintiffs a note for the amount named. The note executed by the defendant Kelly is the one sued on in this action. It is not claimed that anything was received by the plaintiffs from the sale of capital stock.\\nThe controlling question in this case is, Did the agreement set out provide for the surrender of the note sued on before the plaintiffs had received $1500 from the sale of capital stock? The defendant argues that the words, \\\"In consideration of this transaction, the said C. M. Millisack and Dr. H. H. Keith agree to surrender the promissory notes given by the undersigned and aggregating $1000/' provide for the surrender of the note when the contract was signed. It was not surrendered, probably because the parties to the contract did not then understand that it was to be surrendered. No reason is given why it was not surrendered. The transaction mentioned in the sentence quoted evidently means the other things that were t\\u00f3 be done under the contract; that when C. M. Millisack and Dr. H. H. Keith had received $1500 from the sale of capital stock, in excess of $2000 to be sold first for cash, the notes signed by the defendant and his associates should be surrendered.\\nThis is the reasonable construction of the contract. This construction gives effect to all the terms of the contract. It provides a method for the payment of the notes, and when thus paid the notes shall be surrendered to the makers thereof without other direct payment by them.\\nThe judgment of the court is affirmed.\"}"

kan/1426581.json

@@ -0,0 +1 @@
+"{\"id\": \"1426581\", \"name\": \"In the Matter of the Estate of Mildred Ramsey, Deceased, Jane Ramsey Wise, as Executor and individually, and Jacqueline Williams, Kathleen Arbogast, and Lane C. Ramsey, individually, Appellants, v. Jay C. Ramsey, Appellee\", \"name_abbreviation\": \"Estate of Ramsey v. Ramsey\", \"decision_date\": \"1981-01-17\", \"docket_number\": \"No. 51,051\", \"first_page\": 7, \"last_page\": \"14\", \"citations\": \"229 Kan. 7\", \"volume\": \"229\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:45:27.029651+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Estate of Mildred Ramsey, Deceased, Jane Ramsey Wise, as Executor and individually, and Jacqueline Williams, Kathleen Arbogast, and Lane C. Ramsey, individually, Appellants, v. Jay C. Ramsey, Appellee.\", \"head_matter\": \"No. 51,051\\nIn the Matter of the Estate of Mildred Ramsey, Deceased, Jane Ramsey Wise, as Executor and individually, and Jacqueline Williams, Kathleen Arbogast, and Lane C. Ramsey, individually, Appellants, v. Jay C. Ramsey, Appellee.\\n(622 P.2d 626)\\nOpinion filed January 17, 1981.\\nGeorge E. Grist, of Grist & Bush, of Wichita, argued the cause and was on the brief for appellants.\\nJerry G. Elliott, of Foulston, Siefkin, Powers & Eberhardt, of Wichita, argued the cause, and Mary Kay Royse, of the same firm, was with him on the brief for appellee.\", \"word_count\": \"3219\", \"char_count\": \"18923\", \"text\": \"The opinion of the court was delivered by\\nHolmes, J.:\\nMildred Ramsey died testate January 2, 1977, a resident of Sedgwick County. Her heirs-at-law and beneficiaries under her will were a son, Jay C. Ramsey; a daughter, Jane Ramsey Wise; and Jacqueline Williams, Kathleen Arbogast and Lane C. Ramsey, children of Clinton G. Ramsey, Jr., a deceased son. Jay C. Ramsey, appellee herein, filed a disclaimer to any portion of the estate pursuant to K.S.A. 59-2292. The disclaimer was filed July 10, 1978, objections thereto were filed July 24, 1978, and after a hearing the disclaimer was approved by the court January 22, 1979. The journal entry approving the disclaimer was not filed until April 12, 1979, and on the same date Jane Ramsey Wise, individually and as executor, Jacqueline Williams, Kathleen Arbogast and Lane C. Ramsey filed their notice of appeal from the order approving the disclaimer.\\nTo fully understand the nature of the proceedings and the contentions of the parties, it is necessary to set forth the factual background in some detail.\\nDuring her lifetime, Mildred Ramsey accumulated three quarter sections of farm land in Sedgwick County. The Northeast quarter of Section 21, Township 25 South, Range 1 West of the Sixth Principal Meridan, Sedgwick County (hereafter tract I), was conveyed by Mildred to her son, Jay C. Ramsey, on January 4, 1972. She filed a gift tax return at that time and Jay testified it was an outright conveyance and gift, although he continued to contribute to his mother's support. On September 29, 1976, Mildred Ramsey executed her will. Paragraph I of her will provides for the payment of debts, taxes and expenses while paragraph VIII appoints Jay C. Ramsey and Jane Ramsey Wise as co-executors of the will. Clinton G. Ramsey, Jr., also named as a co-executor, died in October, 1976, shortly after the will was executed. The other pertinent paragraphs of the will provide:\\n\\\"II.\\n\\\"It is my intent that each of my children receive an equal share of my estate, and in order that this desire may be carried out I direct that the appraisals made by the court appointed appraisers of the three quarter sections hereinafter devised, shall be added together as a total sum and that such total sum be divided by three and the result of such division shall represent a base bequest to each child, and that an adjustment be made among my three children to the extent that each of them shall receive an equal dollar amount from the devise of the said real property, which such adjustment may be made from the residue of my estate or by a devisee or devisees personally supplying the difference.\\n\\\"III.\\n\\\"I give and devise to my son, Jay C. Ramsey, the farm on which he now resides and which is described as follows:\\nNortheast Quarter of Section 21, Township 25 South, Range 1 West of the Sixth P.M., Sedgwick County, Kansas,\\nsubject to the mortgage, which mortgage shall be assumed and paid by him; burdened with the equalization value formula set forth in paragraph II. It is my desire, if this property is sold by Jay C. Ramsey, that said property be first offered for purchase to either Clinton G. Ramsey, Jr. or Jane Ramsey Wise.\\n\\\"IV.\\n\\\"I give and devise to my son, Clinton G. Ramsey, Jr., the following described property, to-wit:\\nSoutheast Quarter of Section 11, Township 25 South, Range 2 West of the Sixth P.M., Sedgwick County, Kansas,\\nburdened with the equalization value formula set forth in paragraph II. It is my desire, if this property is sold by Clinton G. Ramsey, Jr., that said property be first offered for purchase to either Jay C. Ramsey or Jane Ramsey Wise.\\n\\\"V.\\n\\\"I give and devise to my daughter, Jane Ramsey Wise, all of my interest in and to the following described property, to-wit:\\nNorthwest Quarter of Section 12, Township 25 South, Range 2 West of the Sixth P.M., Sedgwick County, Kansas,\\nburdened with the equalization value formula set forth in paragraph II. In the event at the time of my death said real property is subject of a contract of sale, then and in that event, I devise and bequeath said contract of sale to my said daughter, Jane Ramsey Wise, in lieu of said property, it being my express intent and direction that said property, or the balance due on any contract of sale thereof pass to my said daughter, Jane Ramsey Wise.\\n\\\"VI.\\n\\\"Notwithstanding anything hereinabove that might be construed to the contrary, it is my express intent and direction that in the event that any one of the three quarter sections above described is conveyed to a child of mine during my lifetime, such real property shall be considered a part of my estate and the appraisal made as above provided in order to carry out my intentions that each child of mine shall share equally in my estate.\\n\\\"VII.\\n\\\"All of the rest, residue and remainder of my property, whether real, personal or mixed and wherever situated, and of which I may die seized or possessed, and of which I have power of distribution at the time of my death, I give, devise and bequeath to my children, Jay C. Ramsey, Clinton G. Ramsey, Jr., and Jane Ramsey Wise, or the survivor or survivors of them, share and share alike.\\\"\\nPrior to her death, Mildred sold on a contract the property described in paragraph V, and Jane became entitled to receive the contract in lieu of the property as set forth in the will.\\nFollowing Mildred's death on January 2, 1977, the family got together and divided her household goods and personal effects without benefit of any order or approval by the court. Appellee, Jay C. Ramsey, received tangible personal property having a value of $162.50. As a part of the subsequent proceedings relating to his disclaimer, he offered to return the specific personal property to the estate or pay the estate the sum of $162.50. On January 6,1977, Jay C. Ramsey filed a petition for probate of his mother's will. On February 7, 1977, he and his sister, Jane Ramsey Wise, were appointed and qualified as co-executors of the will of Mildred Ramsey. By November, 1977, disagreement had arisen about the proper construction of the terms of the will and the ultimate distribution to be made thereunder. On November 7, 1977, appellee filed a petition for construction of the will and a determination of how the equalization formula of paragraph II would be applied. On April 4,1978, Jay and Jane, as co-executors, filed their inventory and valuation of the assets in the estate. Tract I, the property deeded to Jay in 1972, was not included. The quarter section described in paragraph IV of the will was valued at $181,500.00 and the contract for sale of the property described in paragraph V at $78,448.46. The actual balance on the contract was $90,000.00 but that figure was discounted to reflect the low interest rate and small annual principal payments. The remaining personal property was insufficient to pay debts, expenses and taxes to say nothing of equalizing the values of the three properties involved. Tract I was also appraised at the same time for purposes of the hearings in the trial court and its value determined to be $153,900.00.\\nIn June, 1978, the trial court orders on the petition to construe the will were filed. The court found the will to be clear and unambiguous, applied the paragraph II formula to all three properties and ruled that Jay C. Ramsey should pay into the estate $12,100.00 and the children of Clinton G. Ramsey, Jr., the sum of $39,700.00, to equalize the values of the three properties and that Jane should receive the sum of $51,800.00 from the estate. The court also found that if the residue was insufficient to pay costs, expenses and taxes, the parties should pay a proportionate share into the estate to cover such items.\\nOn July 10, 1978, Jay filed his resignation as co-executor and a disclaimer in the following form:\\n\\\"The undersigned, Jay C. Ramsey, hereby disclaims any and all interest in and to the estate of his mother, Mildred Ramsey, deceased, or under the laws of intestate succession of the State of Kansas.\\\"\\nThis appeal is from the order of the trial court which determined that the disclaimer had been timely filed.\\nAppellants' first argument is that the disclaimer was not timely filed. The disclaimer statutes, first passed by the legislature in 1968, provide:\\n\\\"59-2291. Disclaimer to succession; persons authorized; filing of written instrument, contents. Any heir, next of kin, devisee, legatee, person succeeding to a disclaimed interest, beneficiary under a testamentary instrument or any person designated to take pursuant to a power of appointment exercised by or under a testamentary instrument may disclaim in whole or in part the succession to any property, real or personal, or interest therein by filing a written instrument within the time and in the district court as hereinafter provided. The instrument shall (a) describe the property or part or interest therein subject to the disclaimer; (\\u00a3>) a declaration of disclaimer and the extent thereof and (c) be signed and acknowledged by the disclaimant.\\\"\\n\\\"59-2292. Same; filing and recordation of disclaimer instrument. The disclaimer instrument shall be filed within nine (9) months after the death of the decedent or the donee of the power, as the case may be, or if the taker of the property or interest is not then finally ascertained or if his or her interest has not become indefeasibly fixed both in quality and in quantity, then not later than nine (9) months after the event when the taker has become finally ascertained and his or her interest has become indefeasibly fixed both in quality and in quantity.\\n\\\"Said disclaimer instrument shall be filed and recorded in the district court in which the estate of the decedent or the donee of the power is or may be administered.\\\"\\nPrior to the enactment of the disclaimer statutes in 1968, the law was settled in Kansas that a beneficiary under the terms of a will was presumed to accept a gift favorable to him or her. To renounce such a gift it had to be done within a reasonable time. Strom v. Wood, 100 Kan. 556, 164 Pac. 1100 (1917); 2 Bartlett's Kansas Probate Law and Practice \\u00a7 512 (1953), at 2. One of the primary factors considered by the courts in the determination of a \\\"reasonable time\\\" was whether a beneficiary was aware of the material facts concerning the bequest or devise. 6 Bowe-Parker: Page on Wills, \\u00a7 49.8 (1962), at 47.\\nIt is appellants' contention that appellee filed his disclaimer after the time allowed by the statute had expired. The statute requires the disclaimer to be filed within nine months after the death of the decedent or nine months after the taker of the property has been ascertained, and such taker's property has become indefeasibly fixed in quality and quantity. In the case at bar, Mildred Ramsey died on January 2, 1977, and appellee did not file his disclaimer until July 10, 1978, more than eighteen months after decedent's death. Since the disclaimer was not filed within the first nine months after Mildred Ramsey's death, if valid it must come within the second clause of the statute and be filed within nine months of the time the interest became indefeasibly fixed both in quality and in quantity.\\nAppellee, of course, argues that this case fits within the second clause of K.S.A. 59-2292. Citing Webster's Third New International Dictionary (1968), appellee defines \\\"indefeasible\\\" as \\\"not capable of or not liable to being annulled or voided or undone.\\\" Thus K.S.A. 59-2292 would require that the interest of appellee be unalterably and absolutely settled in quality and quantity before the nine months period would begin to run. He, therefore, argues that the \\\"triggering event\\\" was the determination by the court that, with respect to appellee, the will imposed a liability, rather than conferring a benefit. The court orders interpreting the will were filed on June 8, 1978, and June 21, 1978. Appellee filed his disclaimer on July 10, 1978, well within nine months of those dates.\\nCommon law and public policy require that a beneficiary be given a reasonable time under all the facts and circumstances within which to file a disclaimer. Strom v. Wood, 100 Kan. 556. The California Court of Appeals in Estate of Koplin, 70 Cal. App. 3d 686, 694, 139 Cal. Rptr. 129 (1977), commented while construing the California disclaimer statute that:\\n\\\"The Legislature obviously recognizes that public policy is best served by allowing a beneficiary to make a disclaimer of his interest at that point in time where the beneficiary is best able to weigh the alternate possibilities of his actions.\\\"\\nAppellee contends that he was not in a position to weigh the desirability and effect of a disclaimer until after the court ruled upon the petition for a construction of the will and applied the equalization formula provided therein. We agree. The statute obviously contemplates factual situations where a beneficiary under a will cannot make an intelligent decision about the effects of a disclaimer within nine months of the death of the decedent. That situation exists in the present case. It was not until the court's rulings in June, 1978, that Jay could determine with certainty just what his rights and obligations might be under the will. Although the 1972 conveyance was absolute in form and conveyed fee simple title at that time, it was not until 1978 that the actual overall effect of the terms of the will were determined. The testatrix's attempt in paragraph II of her will to devise tract I to Jay could not limit or affect the absolute conveyance made to him several years before. A will speaks from the date of the death of the decedent, (Baker University v. K.S.C. of Pittsburg, 222 Kan. 245, 564 P.2d 472 [1977]), and cannot serve to set aside or affect an absolute conveyance made prior to death absent specific circumstances such as fraud, undue influence, etc., none of which are present in the instant case. Likewise, paragraph VI of the will, which provides that any pre-conveyed property shall be considered a part of the estate cannot operate to bring the property back into the estate or to burden Jay with obligations contained in the will. It merely serves to clarify the intent and desire of his mother. While some may consider it unfortunate that Jay has elected to renounce his participation in the estate, thereby defeating his mother's wishes, the fact remains that she conveyed tract I to Jay long before the 1976 will was executed and he cannot be denied his statutory right to make such a decision. We hold the disclaimer was timely filed. For a comprehensive article on several aspects of the current use of disclaimers see Note, Disclaimer Statutes: New Federal and State Tools for Postmortem Estate Planning, 20 Washburn L.J. 42 (1980).\\nAppellants next contend that appellee is estopped from disclaiming his interest in the estate because he has accepted benefits from the estate. Those benefits are alleged to be the personal property received through the family distribution of the decedent's personal effects, and appellee's fee as co-executor. Appellants rely upon Nusz v. Nusz, 155 Kan. 699, 127 P.2d 441 (1942), which was decided long before our disclaimer statutes were enacted. Nusz is authority for the proposition that one cannot accept the benefits of a will and refect its burdens. K.S.A. 59-2291 provides in part that a beneficiary under a will \\\"may disclaim in whole or in part the succession to any property, real or personal, or interest therein . . . .\\\"\\nWe are not called upon and do not decide whether the rule of Nusz has been modified by the statutes. Suffice it to say the distribution of the personal property was done by the family members under some sort of family agreement before the will was presented for probate and may or may not have been done as provided in the will. As a named co-executor Jay was under a duty to submit his mother's will for probate. In re Estate of Harper, 202 Kan. 150, 446 P.2d 738 (1968). When a conflict developed he promptly submitted his resignation. The receipt of a fee, which was agreed to by appellants, was for services rendered the estate and, under the circumstances in this case, would not prohibit the filing of a valid disclaimer or estop Jay from renouncing his interest in the estate.\\nFinally, appellants contend that appellee is obligated under the equalization formula in the will, and other language therein evidencing the testatrix's intent that the children be treated equally, to pay a portion of the debts, expenses and taxes. Again, appellants argue that appellee cannot accept the benefits of the will without also accepting the burdens. Having timely filed his disclaimer renouncing all benefits under the will, the point is without merit.\\nIn closing, we pause to note that we agree with the trial court that the will of Mildred Ramsey is clear and unambiguous. There can be no doubt from reading the entire will that Mrs. Ramsey wanted to treat her children equally and she undoubtedly thought she had accomplished her purpose. Unfortunately, runaway inflation and insufficient personal property thwarted her good in tentions. For a similar unfortunate result, see In re Estate of Wernet, 226 Kan. 97, 596 P.2d 137 (1979). The record is not entirely clear why Mrs. Ramsey attempted to devise tract I to her son Jay when she had deeded it to him several years before. Apparently, Mrs. Ramsey, sometime prior to 1972, had executed a similar will and at the time of the revision she neglected to tell her attorney about the prior conveyance to Jay. The prior will, the gift tax return and the conveyance to Jay were all handled by a different attorney from the one who prepared the 1976 will. It appears that when Mrs. Ramsey consulted her new attorney in 1976, she was primarily interested in making certain that Jane was protected as negotiations were underway at that time for the sale of the quarter section described in paragraph V of the will. She also wanted to include her daughter as a co-executor. With those thoughts uppermost in her mind, she evidently advised her attorney that all other provisions of the old will were satisfactory and the new will was prepared accordingly.\\nWe hold that the disclaimer of Jay C. Ramsey was timely and properly filed and precludes him from participating in any of the benefits or burdens of the estate of Mildred Ramsey, deceased.\\nThe judgment is affirmed.\"}"

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+"{\"id\": \"1432231\", \"name\": \"Kenneth D. Newell, Appellant and Cross-Appellee, v. Gary Krause, Paradise Valley Farms and James C. Brollier, Appellees and Cross-Appellants, and Nevada First Corporation, Garvey International, Inc., and Carl N. Brollier, Appellees\", \"name_abbreviation\": \"Newell v. Krause\", \"decision_date\": \"1986-07-18\", \"docket_number\": \"No. 57,911; No. 58,038\", \"first_page\": 550, \"last_page\": \"563\", \"citations\": \"239 Kan. 550\", \"volume\": \"239\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T00:04:58.794648+00:00\", \"provenance\": \"CAP\", \"judges\": \"Herd, J., joins in the foregoing concurring and dissenting opinion.\", \"parties\": \"Kenneth D. Newell, Appellant and Cross-Appellee, v. Gary Krause, Paradise Valley Farms and James C. Brollier, Appellees and Cross-Appellants, and Nevada First Corporation, Garvey International, Inc., and Carl N. Brollier, Appellees.\", \"head_matter\": \"No. 57,911\\nNo. 58,038\\nKenneth D. Newell, Appellant and Cross-Appellee, v. Gary Krause, Paradise Valley Farms and James C. Brollier, Appellees and Cross-Appellants, and Nevada First Corporation, Garvey International, Inc., and Carl N. Brollier, Appellees.\\n(722 P.2d 530)\\nOpinion filed July 18, 1986.\\nJohn R. Hamilton, of Hamilton & Hannah, of Topeka, argued the cause and was on the briefs for appellant and cross-appellee Kenneth D. Newell.\\nJohn J. Murphy, of Foulston, Siefkin, Powers & Eberhardt, of Wichita, argued the cause, and Robert L. Howard, of the same firm, was with him on the brief for appellees Nevada First Corporation and Garvey International, Inc.\\nMichael L. Jones, of Hershberger, Patterson, Jones & Roth, of Wichita, argued the cause and was on the brief for appellee and cross-appellant, James C. Brollier, and appellee, Carl N. Brollier.\\nDan Biles, of Gates & Clyde, Chartered, of Overland Park, was on the brief for appellee and cross-appellant Gary E. Krause.\\nRichard C. Hite, of Kahrs, Nelson, Fanning, Hite & Kellogg, of Wichita, was on the brief for appellee and cross-appellant Paradise Valley Farms, Inc.\", \"word_count\": \"5067\", \"char_count\": \"30717\", \"text\": \"The opinion of the court was delivered by\\nMcFarland, J.:\\nThis is an action by Kenneth D. Newell, a real estate broker, against his principals (Carl N. and James C. Brollier) and others involved directly or indirectly with the purchasers of the farms, wherein plaintiff seeks damages arising from the sales of several tracts of farmland. All defendants, except James C. Brollier, were removed from the action on assorted grounds prior to submission of the case to the jury. The jury returned a verdict in favor of plaintiff and against James C. Brollier in the amount of $171,733.20 actual damages and $150,000.00 punitive damages. Plaintiff and defendant James C. Brollier appeal and cross-appeal, respectively. Defendants Gary Krause and Paradise Valley Farms, Inc., have filed cross-appeals that are contingent in nature \\u2014 coming up for consideration only in the event this court disturbs the trial court's removal of these defendants from the jury's consideration.\\nThe facts involved in this action are extraordinarily complex. To set them out in full at this point in the opinion would only result in much duplication as the various issues are discussed. Still, it is necessary to provide a basic factual foundation and introduce the cast of parties before turning to the issues. Carl N. and James C. Brollier (father and son) owned a farming operation in western Kansas consisting of several farms. In 1977, plaintiff Newell entered into an exclusive six-month listing agreement to sell six of the Brollier farms. Sales of farmland were slow at the time and plaintiff had no success selling the farms through his regular channels. Plaintiff made contact with defendant Krause in an effort to sell the farms to European investors (a market which he believed Krause had access to). At the time Krause was an employee of Builders, Inc. (nota party hereto). Builders, Inc., and all of the named corporate defendants are, or were, parts of the Wichita based Garvey organization. Through Krause, plaintiff seeks to impose liability on all the corporate defendants. Two of the farms were sold within the time period of the listing agreement to Paradise Valley Farms. Plaintiff received his commission on these. The other four farms were sold (also to Paradise Valley Farms) after the expiration of the listing agreement. In this action plaintiff contends the Brollier defendants conspired to delay the four sales in order to cheat him out of his commission. Additionally, he contends he was entitled, through an oral agreement with Krause, to fifty percent of the net profits on the resale of the farms by Paradise Valley Farms. The actual damage award consisted of a six percent commission on the sales of the four farms plus prejudgment interest.\\nFor convenience, the issues will be grouped as to the particular defendant or defendants involved herein.\\nCARL N. BROLLIER\\nThe only issue relative to Carl N. Brollier is whether the trial court erred in dismissing plaintiff s action against him on the ground of lack of personal jurisdiction.\\nCarl N. Brollier had an office in Moscow, Kansas. On August 9, 1979, service of process was attempted on Carl Brollier and his wife (the latter no longer being in the action and no issue relative to her is involved in this appeal). The sheriff s return stated the following:\\n\\\"(2) By leaving on the 9th day of August, 1979, for each of the within-named defendants At their usual place of business for Carl N. Brollier by leaving w/their son, James Brollier . . . (Emphasis supplied.)\\nK.S.A. 60-304 provides:\\n\\\"The summons and petition shall be served together. The plaintiff shall furnish the clerk such copies of the petition as are necessary. Service shall be made as follows:\\n\\\"(a) Individual. Upon an individual other than a minor or an incapacitated person, by delivering a copy of the summons and of the petition to the individual personally or by leaving copies thereof at such individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the petition to an agent authorized by appointment or by law to receive service of process, but if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. A judge of the district court, upon a showing that service as prescribed above cannot be made with due diligence, may order service to be made by leaving a copy of the summons and of the petition at the defendant's dwelling house or usual place of abode.\\\" (Emphasis supplied.)\\nClearly this statute was not complied with. Service was attempted at Carl's place of business. James was not \\\"an agent authorized by appointment or by law to receive service of process.\\\" Plaintiff does not contend the service was proper. Rather, plaintiff contends Carl waived his defense of lack of personal jurisdiction and that the trial court erred in holding otherwise.\\nThe record reflects the attempted service occurred on August 9,1979. On October 2,1979, Carl filed his answer to the petition. Therein he stated that he did \\\"not waive but [would] expressly reserve, rely upon and affirmatively plead the following defenses: . . . insufficiency of service of process . . . .''(Emphasis supplied.) Apparently, plaintiff made no effort to determine the basis for this asserted defense.\\nThe pretrial conference of this case was held on August 15, 1984. A defense asserted in the pretrial order by Carl was \\\"lack of jurisdiction.\\\" The case was called for trial on January 21, 1985. At that time the court sustained Carl's motion to dismiss on the ground of lack of personal jurisdiction.\\nPlaintiff contends Carl had waived this defense. Crucial to his argument is his claimed distinction betw\\u00e9en defenses of \\\"lack of personal jurisdiction\\\" and \\\"insufficiency of process.\\\" K.S.A. GO-212 provides in part:\\n\\\"(a) When defenses and objections presented. A defendant shall serve his answer within twenty (20) days after the service of the summons and petition upon him .\\n\\\"(b) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under K.S.A. 60-219.\\\" (Emphasis supplied.)\\nCarl asserted \\\"insufficiency of service of process\\\" in his answer. Failure to list this defense at pretrial operates as a waiver thereof, argues plaintiff. Further, plaintiff argues \\\"lack of personal jurisdiction\\\" was asserted for the first time at pretrial and was waived because it should have been asserted in the answer. Plaintiff argues that, if these terms had not been intended to relate to different matters, they would not have been separately listed in K.S.A. 60-212(b).\\nK.S.A. 60-212 was modeled after Federal Rule of Civil Procedure 12. In 5 Wright & Miller, Federal Practice and Procedure: Civil \\u00a7 1351 (1969), the following is stated:\\n\\\"Another problem in scope is caused by the substantial interrelationship between a defense under Rule 12(b) (2) and those under Rules 12(b) (4) and 12(b) (5), which are based on defects in the process or its service. As a result, in actual practice the rales often are used interchangeably and there is a certain amount of confusion in the reported decisions under these rules. Thus, motions to quash service of process as well as motions to dismiss for insufficiency of process or service of process have been treated as challenging the court's jurisdiction over the person. Indeed, Official Form 19, which illustrates the form of a Rule 12(b) motion, indicates how service of process and personal jurisdiction defenses often are amalgamated. In keeping with the spirit of the federal rules, the precise title of the objection should not prevent the court from considering the motion according to its substance.\\\"\\nIn Fish v. Bamby Bakers, Inc., 76 F.R.D. 511, 513 (N.D.N.Y. 1977), the court stated that a challenge to jurisdiction over the person can be regarded as including a challenge to service of process because improper service results in a lack of jurisdiction. See also Gomez v. Karavias U.S.A. Inc., 401 F. Supp. 104, 107 (S.D.N.Y. 1975) and Peterson v. Dickison, 334 F. Supp. 551 (W.D.Pa. 1971). To hold otherwise would appear to be overly technical and to place form over substance. Clearly, Carl Brollier preserved his objection to the service of process the two times he was required formally to do so (answer and pretrial), and the trial court did not err in considering the issue as being properly before it.\\nNext, plaintiff argues Carl waived the defense by participating in the case for several years without reasserting the defense. This particular argument is raised for the first time on appeal and, accordingly, cannot be considered.\\nWe conclude the trial court did not err in dismissing the plaintiffs claims as to Carl N. Brollier.\\nIt should be noted that subsequent to the dismissal plaintiff filed a new action against Carl Brollier based upon the same causes of action. The new action was dismissed on the basis of the running of the statute of limitations and that dismissal is the subject of a companion appeal (Newell v. Brollier, 239 Kan. 587, 722 P.2d 528 [1986]).\\nJAMES C. BROLLIER\\nThe first issue of James C. Brollier's cross-appeal is whether the trial court erred in holding Kenneth Newell's tort claims were assignable.\\nKenneth Newell filed for bankruptcy in June of 1978 and was discharged on December 7, 1978. The action herein was filed August 3, 1979. On motion of the bankrupt (Newell), the trustee transferred the causes of action back to Newell for the consideration of $10,000 (Newell claimed not to have discovered his causes of action until after being discharged in bankruptcy). James Brollier contends the causes of action sounding in tort (conspiracy, fraud, and tortious interference with contract) are non-assignable as a matter of Kansas law and therefore Newell is not the real party in interest.\\nThe parties involved in this issue extensively reviewed all statutes and cases involving the broad area of assignability of torts arising since Kansas became a state. Attention is particularly drawn to General Statutes of Kansas of 1868, ch. 80, \\u00a7 26, which stated:\\n\\\"Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section twenty-eight; but this section shall not be deemed to authorize the assignment of a thing in action, not arising out of contract.\\\"\\nThis paragraph remained a part of the law (as G.S. 1949, 60-401) until 1963, when it was amended. In 1963 the legislature repealed the former code of civil procedure (ch. 60 of the General Statutes of 1949 and of the General Statutes Supplement of 1961). The old \\u00a7 26 (G.S. 1949, 60-401) was incorporated into what is now K.S.A. 60-217(a). L. 1963, ch. 303. K.S.A. 60-217(a) reads:\\n\\\"Real party in interest. Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, conservator, trustee of an express trust, receiver, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his or her own name without joining with him or her the party for whose benefit the action is brought; and when a statute so provides, an action for the use or benefit of another shall be brought in the name of the state of Kansas.\\\"\\nK.S.A. 60-217(a) omits the last two clauses of \\u00a7 26.\\nThis case appears to be an inappropriate vehicle for an in-depth discussion on the status of the law on assignability of torts. The broad public policy considerations inherent in this area of the law are wholly absent from the case before us. Newell is not an outsider purchasing an injured person's tort action. Newell was a party to the events giving rise to the claimed causes of action and filed this action on August 3, 1979, seeking recovery for his damages. Newell, because of his 1978 bankruptcy action, had to clear any interest of the trustee before proceeding with this suit. He regained full right to proceed with the pending litigation by payment of $10,000 to the trustee. Had the trustee determined the causes of action to be without value, the trustee could have abandoned them whereby all interest would have reverted back to Newell.\\nWe conclude that whereas the transfer to Newell by the trustee may have technically constituted an assignment, it is not the type of transfer within the purview of law on assignability of tort claims. The trial court did not err in permitting Newell to proceed in the action before us.\\nFor his next issue, James Brollier claims the giving and refusal to give a number of instructions were erroneous. Nothing would be gained in setting forth in this opinion the various assertions made relative to the instructions. It is sufficient to state we have carefully considered each claim of error relative to the instructions and find each to be without merit. It should be noted that a number of the claims go to the sufficiency of th\\u00e9 evidence question involved in the next issue.\\nWe turn then to the major issue involving James Brollier \\u2014 the sufficiency of the evidence supporting the verdict. More particularly, was there sufficient evidence of fraud or conspiracy to defraud to support the verdict?\\nFraud \\\" 'in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another .'\\\" Goben v. Barry, 234 Kan. 721, 728, 676 P.2d 90 (1984), quoting Augusta Bank & Trust v. Bloomfield, 231 Kan. 52, 64, 643 P.2d 100 (1982).\\nHonesty and fair dealing are presumed; therefore, the one charging fraud must prove it by clear and convincing evidence. Credit Union of Amer. v. Myers, 234 Kan. 773, 778-80, 676 P.2d 99 (1984).\\nClear and convincing evidence is not a quantum of proof, but rather a quality of proof; thus, the plaintiff establishes fraud by a preponderance of the evidence, but this evidence must be clear and convincing in nature. On review, this court considers only the evidence of the successful party to determine whether it is substantial and whether it is of a clear and convincing quality. Fox v. Wilson, 211 Kan. 563, 578-79, 507 P.2d 252 (1973); In re Estate of Shirk, 194 Kan. 671, 672, 401 P.2d 279 (1965).\\nThe common definition of clear and convincing evidence was iterated in Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980), as follows:\\n\\\" '[T]he witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts at issue.' Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816 (1979).\\\"\\nThe evidence in the case before us constitutes an inundation of dates of sales and resales of the many parcels of land comprising the farms involved, dates of meetings and conversations, and prices paid on initial sale and resale, etc. Much of the evidence had little bearing on plaintiffs claims against this defendant. Winnowing the facts is vital to the determination of this issue.\\nJames C. and Carl Brollier were the owners of six farms located in western Kansas. They desired to sell these farms and, in 1976, contacted plaintiff Newell to serve as their real estate broker. Newell was unable to sell any of the farms through his regular channels. In a conversation with an acquaintance (George Stuckey), he learned of Gary Krause, who was represented to have contacts in the lucrative European investors' market. Krause was employed by Builders, Inc., a Garvey corporation. At that time Krause had little experience in the field. Newell, Krause, and Stuckey discussed a partnership arrangement whereby all three could profit on a grand scale from the hoped-for Brollier farm sales. They viewed the farms in 1976. No such three-way arrangement was finalized. Newell, apparently operating on the half-a-loaf was better theory, did make an agreement with Krause whereby Newell would split his six percent commission with Krause on any Brollier farm for which Krause obtained European buyers. Additionally, Newell claims to have also had an agreement with Krause whereby he would receive fifty percent on the net profits made by Krause's superiors on any resales of the Brollier farms.\\nIn 1977 Newell obtained six-month exclusive listing agreements on the six Brollier farms. Newell's commission was to be six percent of the selling price and the agreements were for six months with 60-day extension options. Two of the farms were sold with Newell receiving his six percent commission, and he shared the same with Krause. Both of these farms were sold to Paradise Valley Farms, Inc., a newly created Garvey corporation, whose business was sale of farmland to European investors.\\nJames Brollier had at least two private meetings with Krause during the time the exclusive listing agreements were in effect. The remaining four farms were sold (also to Paradise Valley Farms and from there resold to European investors) within two to four months after the expiration of the six-month exclusive listing agreements. Newell did not receive a commission on these sales. The sales to Paradise Valley Farms were essentially \\\"paper\\\" transactions. These \\\"sales\\\" did not occur until Paradise Valley Farms had definite commitments from European buyers. Substantial markups on prices occurred as the land flowed through Paradise Valley Farms.\\nThe European investors wanted package deals, including farm management services. James Brollier ultimately became the farm manager, on a lucrative basis, on each of the farms sold to the European investors. When certain delinquencies occurred in payments to Brollier for his services, Brollier and Krause went to Europe and obtained Brollier's money. In late 1978 Krause left his employment, and in 1979 Krause and James Brollier formed a corporation concerned with the selling of farmland to European investors.\\nFrom the evidence the jury could well have concluded that James Brollier would have profited from delaying the sales past the time of the listing agreement (thereby saving payment of Newell's six percent commission); that he did conspire to manipulate dates of sales to accomplish this purpose; and that, additionally, he was negotiating secretly with Krause to ensure his management contract was a part of the package deal offered the European buyers.\\nWe apply the previously stated standards and conclude there was sufficient evidence to prove fraud or conspiracy to defraud.\\nFor his final issue, Brollier contends that the evidence, as a matter of law, established Newell breached his fiduciary duty to the Brolliers and was thereby barred from receiving any commission on the sales.\\nIn his claim against Krause and the corporate defendants, Newell contended he had an agreement with Krause .(imputed to all corporate defendants in some manner) whereby Newell was to share in the profits obtained by Paradise Valley Farms on the marked-up prices charged the foreign investors on the Brollier farm sales. This aspect of the case will be discussed more fully later in the opinion. Newell claims he told the Brolliers he had an arrangement whereby he could profit on the resales and that they had no objection \\u2014 their only interest being to receive satisfactory initial sale prices. The Brolliers denied any such knowledge.\\nThe jury was properly instructed on the duties of a fiduciary as follows:\\n\\\"You are instructed that a real estate broker has a fiduciary obligation to his principal requiring good faith on his part to make disclosure to his principal of all material matters relating to the transaction. Such duty requires disclosure of all compensation, either received or to be received by the broker.\\n\\\"A real estate broker is not entitled to compensation if he fails to disclose to his principal any personal knowledge which he possesses relative to matters which are or may be material to his principal's interest or if he acts adversely thereto, either for the purpose of aiding another or with the design of securing a secret profit for himself.\\\"\\nHaving been so instructed, the jury apparently chose to believe Newell had made sufficient disclosure to the Brolliers of his apparent conflict of interest. Appellate courts cannot nullify a jury's disbelief of evidence, nor can they determine the persuasiveness of evidence which a jury may have believed. Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 74, 500 P.2d 39 (1972); Schroeder v. Richardson, 196 Kan. 363, 411 P.2d 670 (1966).\\nWe conclude this issue is without merit.\\nNEVADA FIRST CORPORATION AND GARVEY INTERNATIONAL, INC.\\nThe primary issue raised by plaintiff relative to these corporate defendants is whether the trial court erred in granting summary judgment in their favor.\\nPlaintiff claimed throughout this litigation that Krause was the agent of all of the corporate defendants. Therefore, the agreement plaintiff claims he made with Krause whereby he, Newell, would receive fifty percent of the profits made on resales of the Brollier farms was the agreement of all corporate defendants.\\nThe case herein was filed on August 3, 1979. Pretrial was held on August 15, 1984, with the agreed-upon pretrial conference order being filed on November 19, 1984. Trial was scheduled to commence January 21, 1985. On December 10, 1984, these defendants filed a motion for summary judgment based upon alleged failure of any evidence of agency by Krause to act for these two corporate defendants. On January 3, 1985 (18 days before trial), plaintiff responded to the motion and for the first time added an alternative ground for liability of these two defendants \\u2014 alter ego; that is, that Paradise Valley Farms, Inc., was the alter ego of these two defendants. Previously no attempt to pierce the corporate veil had been made by plaintiff. The trial court refused to consider this late-blooming theory and we find no abuse of discretion in that regard.\\nDid the trial court err in entering summary judgment on the grounds of failure of evidence of agency? We believe not. Newell relies heavily on actions and statements of Krause in support of his contention Krause was the agent of these two corporations. Krause, from time to time, used Nevada First stationery in corresponding with potential farmland buyers. In fact, Krause's only connection with Nevada First was that his employer (Builders, Inc.) was attempting to sell some Nevada farm property owned by Nevada First.\\nKrause had not been an employee of Garvey International since June 1, 1975. Krause had never been an employee of Nevada First. At the time of the alleged agreement, Krause was an employee of Builders, Inc. The Brollier farm properties were sold to Paradise Valley Farms. It is true the corporate defendants are interrelated. That does not, per se, make the agent of one the agent of all through a process of osmosis. There must be evidence of agency or else the corporate veils must be pierced in order to impose liability for any acts of Krause upon these two corporate defendants. Discovery had long been completed, a pretrial order had been entered, and the case was soon to go to trial. We conclude the trial court did not err in entering summary judgment in favor of these two defendants.\\nGARY KRAUSE AND PARADISE VALLEY FARMS, INC.\\nThese defendants moved for and received directed verdicts in their favor at the close of plaintiff s evidence. For his first issue, plaintiff contends the trial court abused its discretion in refusing to permit him to amend (in response to the motion for directed verdict) the pretrial order to allege these defendants conspired with the Brolliers to cheat plaintiff out of his six percent commission on the four farms. The pretrial order charged conspiracy only against the Brolliers.\\nK.S.A. 60-215(b) provides:\\n\\\"Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects'as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.\\\"\\nWe have carefully reviewed the contentions made by plaintiff in this regard and find no abuse of judicial discretion in refusing to allow the amendment.\\nThe next issue is whether the trial court erred in limiting discovery of certain records of Paradise Valley Farms. Plaintiff filed a discovery request seeking virtually all of the corporation's financial records regardless of whether or not they related to the Brollier farm sales. The trial court entered an order restricting the scope of discovery to records concerning the Brollier farm sales. We find no abuse of discretion in this order.\\nNext, we turn to the primary issue regarding these defendants. Did the trial court err in entering a directed verdict at the close of the evidence on behalf of these defendants? In making their motions for directed verdicts, these defendants asserted alternative grounds. The trial court granted the motions on the ground plaintiff had failed to show, with sufficient particularly, his claimed damages. That is, plaintiff contended that he was entitled to fifty percent of the net profits Paradise Valley Farms had made on the sales but had only shown gross profit \\u2014 purchase prices and resale prices. The trial court believed that plaintiff s failure to show the expenses incurred by Paradise Valley Farms was fatal to plaintiffs case. We do not agree. Evidence of the expenses was a matter of defense.\\nThere is, however, a valid ground for directing the verdicts herein. By plaintiff s own testimony, his agreement with Krause relative to sharing profits was made in late 1976. Plaintiff further testified that by the middle of 1977 (before any of the sales occurred) it became apparent to him Krause was not going to proceed under the agreement. Plaintiff then, in the summer of 1977, negotiated with a Marty Burke and shortly thereafter entered into an agreement with Burke wherein the two of them would form their own company to sell farmland to European investors. On behalf of the new venture, plaintiff went to Europe and contacted prospective investors \\u2014 including some of those with whom Krause was negotiating. Had this proven successful, Krause and Paradise Valley Farms would have been shut completely out of the sales of the Brollier farms and Burke and plaintiff would have shared the net profits on the sales.\\nThe agreement claimed by Newell was oral and had no term. Therefore, it was terminable at will. Plaintiff testified he knew Krause was dissatisfied with their agreement and that he (plaintiff) felt he was, in the summer of 1977, free to enter into an agreement with someone else. By plaintiff s own testimony it is shown Krause conveyed his intention to end any agreement they had relative to profits and that plaintiff believed and acted in accordance with the agreement having been terminated \\u2014 indeed, plaintiff went into direct competition with Krause for the same prospective European customers for the Brollier lands. Clearly, any agreement between them was terminated prior to the sales of the farms.\\nWe conclude the district court did not err in entering directed verdicts in favor of Krause and Paradise Valley Farms although the stated ground therefor was incorrect.\\nBy virtue of the results heretofore reached, other issues raised need not be determined.\\nThe judgment is affirmed.\"}"

kan/1474934.json

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+"{\"id\": \"1474934\", \"name\": \"Marilyn Flagg and Richard Coonrod, as Individuals and Marilyn Flagg, as Administratrix of the Estate of Vera Lois Coonrod, deceased, Appellants, v. Kurtis I. Loy, Administrator of the Estate of Thomas Wesley Coonrod, Appellee, and Furnal Truck Line, Inc., and Great Western Casualty, Defendants\", \"name_abbreviation\": \"Flagg v. Loy\", \"decision_date\": \"1987-03-27\", \"docket_number\": \"No. 60,072\", \"first_page\": 216, \"last_page\": \"225\", \"citations\": \"241 Kan. 216\", \"volume\": \"241\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:56:41.808323+00:00\", \"provenance\": \"CAP\", \"judges\": \"Holmes and McFarland, JJ., dissenting.\", \"parties\": \"Marilyn Flagg and Richard Coonrod, as Individuals and Marilyn Flagg, as Administratrix of the Estate of Vera Lois Coonrod, deceased, Appellants, v. Kurtis I. Loy, Administrator of the Estate of Thomas Wesley Coonrod, Appellee, and Furnal Truck Line, Inc., and Great Western Casualty, Defendants.\", \"head_matter\": \"No. 60,072\\nMarilyn Flagg and Richard Coonrod, as Individuals and Marilyn Flagg, as Administratrix of the Estate of Vera Lois Coonrod, deceased, Appellants, v. Kurtis I. Loy, Administrator of the Estate of Thomas Wesley Coonrod, Appellee, and Furnal Truck Line, Inc., and Great Western Casualty, Defendants.\\n(734 P.2d 1183)\\nOpinion filed March 27, 1987.\\nTimothy A. Short, of Spigarelli, McLane & Short, of Pittsburg, argued the cause, and Fred Spigarelli, of the same firm, was with him on the brief for appellant.\\nJohn I. O\\u2019Connor, of White, O\\u2019Connor & Werner, P.A., of Pittsburg, argued the cause and was on the brief for appellee.\", \"word_count\": \"3730\", \"char_count\": \"22987\", \"text\": \"The opinion of the court was delivered by\\nAllegrucci, J.:\\nThis is a personal injury and wrongful death action brought by Marilyn Flagg and Richard Coonrod against the estate of their deceased father, Thomas Wesley Coonrod, for the death of their mother, Vera Coonrod. Plaintiffs appeal from the trial court's granting of the defendant's motion for summary judgment.\\nOn January 15,1985, Vera Lois Coonrod was a passenger in an automobile driven by her husband, Thomas Wesley Coonrod. There was a collision involving the Coonrod automobile and a semi-tractor/trailer truck operated by Furnal Truck Line, Inc. Thomas Wesley Coonrod died in the accident and Vera Coonrod died from her injuries on February 1, 1985. The plaintiffs sued Kurtis I. Loy, administrator of the estate of their deceased father, and Furnal Truck Line, Inc., and its insurer. Defendant Kurtis I. Loy filed a motion for summary judgment based upon the doctrine of interspousal tort immunity. The trial court ruled this action was barred by the doctrine of interspousal tort immunity and granted the motion for summary judgment. A certificate of Final Judgment, pursuant to K.S.A. 1986 Supp. 60-254(b), was incorporated into the Journal Entry of Summary Judgment. This appeal followed.\\nThe issue before the court is whether the doctrine of inter-spousal tort immunity should be abrogated. Before determining the merits of plaintiffs' argument for abolishing the doctrine, we should first comment on plaintiffs' argument in the alternative that an exception should be created where both spouses are deceased. Rhode Island has created such an exception. Asplin v. Amica Mutual Insurance Co., Inc., 121 R.I. 51, 394 A.2d 1353 (1978) (where one or both spouses are dead). This court has recognized an exception where the tortious act occurred prior to marriage, O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964), and where the tort was intentional, Stevens v. Stevens, 231 Kan. 726, 647 P.2d 1346 (1982). However, because of our wrongful death statute, we are prevented from doing so in this case. K.S.A. 60-1901 provides:\\n\\\"If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased.\\\" (Emphasis added.)\\nThe statute is clearly a survival statute. It creates no new cause of action for the heirs but, instead, provides that the cause of action survives if it could have been brought by the deceased had she lived. Mrs. Coonrod could not have maintained a personal injury action against the estate of her husband had she survived the accident. Therefore, absent abrogation of the doctrine of inter-spousal tort immunity, the plaintiffs would be barred from maintaining this action. The provisions of K.S.A. 60-1901 mandate such a result even though the traditional rationale for applying the doctrine of interspousal tort immunity is absent where one or both spouses are deceased. There is no marital harmony to preserve nor could the deceased spouses collude to defraud another defendant or an insurance carrier. This illogical result mandates that we reexamine our previous decisions and determine if this court should continue to recognize the doctrine of interspousal immunity in Kansas.\\nThis court first recognized the doctrine of interspousal immunity in Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952). Since that time, this court has continued to recognize interspousal tort immunity. In Sink, this court cited G.S. 1949, 77-109, which provided in part: \\\"The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state.\\\" The constitutional provisions pertaining to married women (Kan. Const. art. 15, \\u00a7 6), and K.S.A. 23-201 and 23-203, commonly referred to as the Married Women's Act, were found not to modify the common-law doctrine of interspousal tort immunity and the doctrine was upheld because to not do so would be \\\"contrary to public policy and [would] tend to disrupt the marital relation.\\\" 172 Kan. at 219.\\nIn O'Grady v. Potts, 193 Kan. 644, Syl. \\u00b6 1, this court held: \\\"A woman may, after becoming the wife of the defendant, continue to maintain an action against her husband for an alleged tortious act\\\" which occurred prior to the marriage. Although the holding in Sink was cited with approval, the court reasoned that a \\\"chose in action\\\" is personal property owned by a woman at the time of her marriage and remains her \\\"sole and separate property.\\\" O'Grady v. Potts, 193 Kan. at 648-49.\\nIn Fisher v. Toler, 194 Kan. 701, 401 P.2d 1012 (1965), interspousal tort immunity was upheld even though a divorce action was pending when the personal injuries occurred.\\nIn Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978), this court again recognized the decision in Sink, but held it did not prevent a comparison of causal fault of both spouses in a comparative negligence case filed by both spouses against a third party tortfeasor.\\nThis court recently affirmed the doctrine of interspousal tort immunity in Guffy v. Guffy, 230 Kan. 89, 631 P.2d 646 (1981). Justice Fromme, speaking for the majority, found \\\"the doctrine of interspousal immunity presently existing in Kansas is vibrant and solidly based on the public policy of this State. It should not be abrogated.\\\" 230 Kan. at 97. A well-reasoned and comprehensive dissent was written by Justice Prager (now Chief Justice) in which Justice Herd joined.\\nIn Stevens v. Stevens, 231 Kan. 726, we recognized an exception to interspousal tort immunity for a willful and intentional tort committed by one spouse against the other. This exception was reaffirmed in Ebert v. Ebert, 232 Kan. 502, 656 P.2d 766 (1983).\\nThe traditional reasons for retaining interspousal tort immunity are: (1) protection of family harmony and tranquility; (2) stare decisis; (3) absence of legislative action to abolish; and (4) possibility of fraud and collusion by the spouses where insurance coverage exists. These grounds, with the exception of fraud and collusion, were considered and recognized as grounds for the decisions in Sink and Guffy. We shall reexamine these grounds in light of present public policy and appellants' argument that interspousal tort immunity is an archaic doctrine which has been \\\"orphaned by logic and reason.\\\"\\nDoes the doctrine of interspousal tort immunity promote and protect family harmony and tranquility? We think not. The doctrine of interspousal tort immunity is a creature of common law evolving out of the legal fiction of the unity of husband and wife. The doctrine of unity was based upon the concept that, upon marriage, the wife's identity was merged into that of her husband and she was, for all legal purposes, a chattel of her husband. The wife could not sue or be sued without the joinder of her husband. Ry reason of our constitution (Art. 15, \\u00a7 6) and the Married Women's Act, K.S.A. 23-201 and 23-203, the concept of unity of husband and wife is no longer recognized in Kansas. However, this did not prevent the majority in Guffy from justifying the continued recognition of interspousal tort immunity primarily on the premise that personal tort actions between spouses would destroy the peace and harmony of the marriage and therefore were contrary to public policy.\\nIn Coffindaffer v. Coffindaffer, 161 W. Va. 557, 565, 244 S.E.2d 338 (1978), the West Virginia Supreme Court responded to the question of whether interspousal tort immunity promotes family harmony as follows:\\n\\\"Undoubtedly family harmony is a laudable goal in this era of rising divorce rates. However, it is difficult to perceive how any law barring access to the courts for personal injuries will promote harmony. If this were a valid sociological consideration, the Legislature could orchestrate even greater harmony by abolishing the statute giving the right to divorce. Moreover, there is an obvious fallacy in this argument, as under the Married Women's Act it has long been recognized that spouses may sue each other in regard to their property rights.\\\"\\nIn Shook v. Crabb, 281 N.W.2d 616 (Iowa 1979), the Supreme Court of Iowa, in abolishing interspousal tort immunity, commented:\\n\\\"While the state has an interest in encouraging marital harmony, to deny a forum for the redress of a wrong would do little to advance the compatibility of a married couple. It is difficult to see how denying access to the legal process could be said with any certainty to encourage domestic tranquility. Interspousal suits are not barred for the vindication of a property interest, \\u00a7 597.3, The Code, or for personal labor, \\u00a7 597.16, The Code. It is difficult to understand why negligence actions between spouses would be any more disruptive than a case involving property or for personal labor, both of which are now permitted.\\\" 281 N.W.2d at 619.\\nWe find the cases from our sister states persuasive. We can no longer give judicial credence to the argument that personal tort actions between husband and wife will disrupt and destroy family harmony and tranquility.\\nWill interspousal tort immunity promote and encourage fraud and collusion? This court, in Guffy, did not discuss or rely upon the fraud and collusion theory in reaching its decision. However, appellee correctly argues that the threat of collusion and fraud has traditionally been relied upon as a reason to justify the doctrine of interspousal tort immunity. In Luna v. Clayton, 655 S.W.2d 893 (Tenn. 1983), the Tennessee Supreme Court responded to the fraud and collusion argument by stating:\\n\\\"Our judicial system is not so ineffective that we must fear frivolous suits to deny relief to a plaintiff otherwise entitled simply because in some prospective application a litigant may be guilty of fraud or collusion. Built into the judicial process are numerous safeguards against fraudulent claims such as the deterrent of a perjury charge, modern discovery, procedures, and the presentation of evidence to juries, all inherent in the Tennessee Rules of Civil Procedure and designed to eliminate surprise and uncover the truth by revealing all the relevant facts. These same factors also militate against claims that insurance companies may be disadvantaged tactically. Moreover, to the extent that insurance companies may fear collusive actions, they have the right to protect themselves by either restricting the scope of their coverage or adjusting premiums accordingly.\\\" 655 S.W.2d at 896-97.\\nIn Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980), this court rejected the fraud and collusion argument as justification for recognizing the doctrine of parental immunity as to motor vehicle accidents by concluding:\\n\\\"We recognize a practical problem is that of possible collusion between parent and child aimed at securing an unjustified recovery from an insurance company. But the possibility of collusion exists to a certain extent in any case. Every day we depend on juries and trial judges to sift evidence in order to determine the facts and arrive at proper verdicts. Experience has shown that the courts are quite adequate for this task. In litigation between parent and child, judges and juries would naturally be mindful of the relationship and would be even more on the alert for improper conduct. We further must recognize that, under provisions ordinarily included in an insurance policy, the insurance company has the right to disclaim liability when there is lack of cooperation with the insurance company on the part of the insured. Lack of cooperation may be found in inconsistent or contradictory statements by the insured or in collusion between the injured party and the insured which results in false statements to the company.\\\" 227 Kan. at 768-69.\\nWe find this reasoning to be equally applicable to the present case and conclude that the \\\"prevention of fraud and collusion\\\" argument does not constitute a rational or logical ground for denying one spouse the right to maintain an action for the personal injuries resulting from the negligence of the other spouse.\\nDoes the doctrine of stare decisis compel this court to continue to recognize interspousal tort immunity? The doctrine of stare decisis means \\\"let the decision stand.\\\" It does give stability to the law by continuing to recognize legal principles which are viable, workable, and just. Justice Prager, in his dissenting opinion in Guffy v. Guffy, 230 Kan. at 105-06, cautioned:\\n\\\"We must recognize, however, that pillars of a building have a way of decaying and deteriorating from age. Likewise, pillars of the law, like pillars in a building, must be repaired or replaced from time to time to prevent the whole structure from collapsing. The courts of this country must recognize that the law is a changing force and, under our system, courts have always had the obligation to change the law to meet the needs of the people in a changing society at particular times. Thus, the courts have a two-fold responsibility of both preserving the law and changing the law by developing new legal principles to meet modern needs. It, of course, takes a great deal of wisdom to know which objective is the most important at any particular time.\\\"\\nIn Ebert v. Ebert, 232 Kan. 502, Justice McFarland, in upholding the Stevens decision creating an exception to the doctrine of interspousal immunity for intentional tort, stated:\\n\\\" 'Judicial devotion to the doctrine of stare decisis is indeed a justifiable concept to be followed by our courts. However, it cannot and must not be so strictly pursued to the point where our view is opaqued and reality disregarded. To do so is to envision the common law to be as immutable as the laws of the Medes and Persians, and thus render our system of jurisprudence forever impotent. The strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.' \\\" 232 Kan. at 503 (quoting Brooks v. Robinson, 259 Ind. 16, 22-23, 284 N.E.2d 794 [1972]).\\nThe Maine Supreme Court, in MacDonald v. MacDonald, 412 A.2d 71 (Me. 1980), put stare decisis in its proper perspective:\\n\\\"In recent years, too, we have forcefully stated that in matters of tort involving the marital relationship we cannot 'stubbornly, hollowly and anachronistically' stay bound by the 'shackles' of the 'formalisms' of the common law. [Citation omitted.] We have also stressed that by so declaring, we do not undermine the principle of stare decisis. Rather, we prevent it from defeating itself; we do not permit it to mandate the mockery of reality and the 'cultural lag of unfairness and injustice' [citation omitted] which would arise if the judges of the present, who like their predecessors cannot avoid acting when called upon, were required to act as captives of the judges of the past, restrained without power to break even those bonds so withered by the changes of time that at the slightest touch they would crumble.\\\" 412 A.2d at 74.\\nThe argument is made that any changes in the doctrine of interspousal immunity should be left to the legislature. We rejected such an argument in Ebert v. Ebert, 232 Kan. at 503. Justice McFarland, speaking for this court, said:\\n\\\"Defendant first contends the holding and rationale of Stevens were erroneous and should be reconsidered. The public policy arguments advanced by defendant-husband were considered in Stevens and rejected. The argument is then made that any alteration in interspousal immunity is a matter reserved for legislative determination. We do not agree. The interspousal immunity doctrine was judicially created and, in Kansas, is not the subject of statutory law. It is therefore appropriate for this court to make alterations to said doctrine. E.g., Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969). See also Annot., Interspousal Tort Immunity, 92 A.L.R.3d 901, \\u00a7 18.\\\"\\nFinally, in Nocktonick v. Nocktonick, 227 Kan. 758, this court rejected parental immunity as to automobile negligence cases. In Guffy, the majority refused to apply the rationale of Nocktonick to abrogate interspousal tort immunity and made the following distinction:\\n\\\"The appellant argues that the expressed public policy in Kansas of requiring insurance on all motor vehicles as enunciated in the Kansas Automobile Injury Reparations Act virtually compels the abrogation of immunity when personal injury arises from the negligent operation of an insured motor vehicle. The premise on which this conclusion is reached is no longer true. The legislature has now amended the Kansas Automobile Injury Reparations Act by enacting Senate Bill No. 371. Effective January 1, 1982, an insurer is given and will no doubt exercise its right in liability insurance policies to exclude coverage of 'any bodily injury to any insured or any family member of an insured residing in the insured's household.'\\n\\\"Also, the decision in Nocktonick was premised on personal injuries caused by the negligence of a parent in the operation of a motor vehicle. The court was aware of the insurance laws of the State in effect when the decision was rendered. 227 Kan. at 769, 770. In addition, that decision is distinguishable from the present question because the parent-child relationship had not been the subject of extensive judicial and legislative action when Nocktonick was decided. In Nocktonick, this court was not faced with the rule of stare decisis, as it is in the present case.\\\" 230 Kan. at 96.\\nJustice Prager, in his dissent, pointed out the fallacy of that distinction:\\n\\\"Compulsory automobile liability insurance was the basis of this court's decision to reject parental immunity in automobile negligence cases in Nocktonick. The majority opinion distinguishes Nocktonick primarily on the subsequent enactment of legislation authorizing the exclusion of family members from automobile liability polices (overruling this court's conclusion in DeWitt v. Young, 229 Kan. 474, 625 P.2d 478 [1981], that such exclusions were void as contrary to legislative dictates of mandatory coverage). The majority's reliance on this enactment is misplaced. First, the statute does not affect the facts of this case. Mr. Guffy possessed liability insurance. This is not a case where Mrs. Guffy is challenging the validity of an exclusion within the policy. The only impediment to her recovery under the terms of the policy is this court's adherence to interspousal immunity. Second, the statute only authorizes the exclusion, and does not mandate its inclusion in all subsequent automobile liability insurance policies. There is nothing to keep the insurer and insured from contracting for liability coverage over that required by law, and extending it to family members. The availability of such insurance will be precluded, however, if this court maintains its position that a spouse cannot recover from a spouse-tortfeasor.\\\" 230 Kan. at 110-11.\\nIn his dissent in Guffy, Justice Prager listed the states which had abolished interspousal tort immunity in whole or in part as of October 1980. Since that time, the following states should be added to the list:\\nArizona \\u2014Fernandez v. Romo, 132 Ariz. 447, 646 P.2d 878 (1982)\\nMontana \\u2014 Miller v. Fallon County, _ Mont. _, 721 P.2d 342 (1986)\\nOhio \\u2014 Shearer v. Shearer, 18 Ohio St. 3d 94, 18 Ohio B. 129, 480 N.E.2d 388 (1985)\\nPennsylvania \\u2014 Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981)\\nTennessee \\u2014 Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983)\\nUtah \\u2014 Stoker v. Stoker, 616 P.2d 590 (Utah 1980)\\nThirty states have now abrogated the doctrine of interspousal tort immunity; additionally, twelve states have done so in part by creating exceptions, and eight states plus the District of Columbia have retained interspousal tort immunity. This trend toward abolishing interspousal tort immunity was prophesied in the Restatement (Second) of Torts \\u00a7 895F, Comment f (1977):\\n\\\"Abrogation. The last two decades have witnessed the definite rejection and abolition of the immunity between husband and wife in its entirety in a substantial number of jurisdictions. Numerous courts have followed a dissenting opinion of Mr. Justice Harlan in Thompson v. Thompson, (1910) 218 U.S. 611, and have held that the Married Women's Acts and the position of equality in which they were intended to place the spouses have removed all reason and justification for the immunity, and that one spouse is subject to liability to the other for any tort whether it is to property or to the person. The number of these decisions has been on the increase in recent years and has been encouraged by the spread and general use of liability insurance, particularly in automobile cases. The indications are clear that this is the future state of the law in all states.\\\"\\nThis court has created several exceptions to the doctrine of interspousal immunity. The present case exemplifies the unjust and unfair consequence of interspousal tort immunity. Here, none of the traditional reasons for retaining interspousal tort immunity exist. The doctrine of interspousal tort immunity may have served a feudal society, but it does not serve a modern one. Although the majority in Guffy felt public policy was being served by continuing to recognize interspousal tort immunity, clearly, in the present case, justice is not. We cannot create another exception to the doctrine of interspousal tort immunity nor do we want to. To do so would continue to breathe life into a doctrine that has outlived its usefulness. The doctrine of inter- spousal tort immunity, as previously noted in Ebert, is of judicial origin. It rests upon this court's decision in Sink and not upon our constitution or legislative act. It is a judicial anachronism that no longer merits recognition. We agree with appellant that the doctrine of interspousal tort immunity has been \\\"orphaned by logic and reason,\\\" and we hereby abrogate the doctrine of interspousal tort immunity. Sink, Guffy, and all prior opinions of this court in conflict with this decision are overruled.\\nThe judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.\\nHolmes and McFarland, JJ., dissenting.\"}"

kan/1480351.json

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+"{\"id\": \"1480351\", \"name\": \"In the Matter of John E. Wilkinson, Respondent\", \"name_abbreviation\": \"In re Wilkinson\", \"decision_date\": \"1992-07-10\", \"docket_number\": \"No. 67,413\", \"first_page\": 546, \"last_page\": \"558\", \"citations\": \"251 Kan. 546\", \"volume\": \"251\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T20:30:13.187050+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of John E. Wilkinson, Respondent.\", \"head_matter\": \"No. 67,413\\nIn the Matter of John E. Wilkinson, Respondent.\\n(834 P.2d 1356)\\nOpinion filed July 10, 1992.\\nStanton A. Hazlett, deputy disciplinary administrator, argued the cause, and Bruce E. Miller, disciplinary administrator, was with him on the formal complaint and brief for the petitioner.\\nEugene T. Hackler, of Hackler, Londerholm, Hinkle, Corder, Martin & Hackler, Chtd., of Olathe, argued the cause and was on the briefs for respondent.\", \"word_count\": \"4588\", \"char_count\": \"28030\", \"text\": \"Per Curiam:\\nIn 1987 this court indefinitely suspended John E. Wilkinson from practicing law in Kansas. In re Wilkinson, 242 Kan. 133, 145, 744 P.2d 1214 (1987). That suspension remains in effect. At issue in this case is whether Wilkinson violated the suspension order by practicing law, contrary to Supreme Court Rule 218(c) (1991 Kan. Ct. R. Annot. 163) and whether he failed to cooperate in the investigation of this case, contrary to Supreme Court Rule 207 (1991 Kan. Ct. R. Annot. 149).\\nThe hearing panel of the Board for Discipline of Attorneys found Wilkinson had engaged in the unauthorized practice of law and had failed to cooperate in the investigation of the case. The panel recommended Wilkinson be disbarred.\\nThe unauthorized practice of law allegation arises out of a contract for the sale of a business owned by David Hupp and sold to Earl Rice. Hupp and Rice had negotiated the sale, and Hupp had presented a written proposal to Rice. Rice told Hupp that he needed someone who was knowledgeable about documents and that he would have a friend, who used to be an attorney, look at the contract. Wilkinson is accused of representing Rice.\\nAlthough the facts are in dispute, it is not necessary to set them out in detail. The important facts are that, after Wilkinson was suspended from the practice of law, he moved his office equipment and law books to the second floor of a friend's warehouse. A law school classmate, Ray Pierson, started practicing law out of the same warehouse. Pierson hired Wilkinson as his law clerk.\\nEarl Rice testified that he knew Wilkinson could not practice law and that he hired Ray Pierson as his lawyer.\\nWilkinson's position is that he acted as a law clerk to Pierson and that everything he did was at Pierson's direction and under Pierson's control. Pierson was unavailable as a witness because his health has deteriorated to the point he is incapacitated. At all times material to this case, Ray Pierson was admitted to the practice of law in Kansas and was in good standing.\\nIn its decision, the panel stated, \\\"There is no legal authority to support the proposition that a law clerk or suspended attorney may practice law under the supervision of an attorney.\\\" This, however, is not Wilkinson's argument. Wilkinson maintains he was not practicing law \\u2014 he was only doing work that an attorney in good standing authorized him, as a law clerk, to perform. The initial inquiry, then, is whether a suspended attorney may be employed as a law clerk.\\nBoth case law and the Model Rules of Professional Conduct (MRPC) sanction an attorney delegating tasks to lay persons. In State v. Barrett, 207 Kan. 178, 184, 483 P.2d 1106 (1971), this court acknowledged that an attorney can delegate tasks to lay persons and stated:\\n\\\"Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. [Citation omitted.]\\n\\\"The work done by . . . lay persons is done as agents of the lawyer employing them. The lawyer must supervise their work and be responsible for their work product or the lack of it. [Citation omitted.]\\\"\\nThe MRPC also permit an attorney to delegate work to lay persons. MRPC 5.5 (1991 Kan. Ct. R. Annot. 294) states:\\n\\\"A lawyer shall not:\\n(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or\\n(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.\\\"\\nThe Comment accompanying MRPC 5.5 specifies that \\\"[p]aragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.\\\"\\nMRPC 5.3 (1991 Kan. Ct. R. Annot. 292) concerns an attorney's responsibility for nonlawyer assistants. The Comment accompanying MRPC 5.3 provides:\\n\\\"Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and parapr\\u00f3fessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services; A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.\\\"\\nThe disciplinary administrator maintains MRPC 5.3 is not applicable to suspended attorneys, arguing that \\\"nonlawyer assistant\\\" plainly means someone who is not an attorney and that Wilkinson, although suspended, still retains his designation as an attorney. The disciplinary administrator relies upon State v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974), in which this court discussed the status of a suspended attorney:\\n\\\"Just as every lawyer should avoid even the appearance of professional impropriety, a suspended attorney should avoid the appearance of failure to comply with the court's order. The Nebraska Supreme Court has suggested that this means he must refrain from the things which he did as an attorney even though he might legally do them as a layman:\\nIt seems clear to us that the doing of such work is within the province of a lawyer to do. It is properly identified as the practice of law, whether or not it might under some circumstances .be properly performed by others not admitted to the bar. An order of suspension deprives the suspended lawyer from performing any service recognized as the practice of law. . A suspended lawyer will not be heard to say that services recognized as within the practice of law were performed in some other capacity when he is called to account. State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645, 649, 111 N.W.2d 543 (1961).\\\" 214 Kan. at 10-11.\\nSchumacher was filed prior to our adoption of the MRPC and also can be distinguished factually. For example, in Schumacher, the suspended attorney kept his office open to the general public; kept his exterior sign, advertising he was qualified to practice law in Kansas, visible to the public; permitted legal matters to be written on his letterhead; did not inform all of his clients of his suspension; was present in the courtroom during the trial of one of his former cases and passed notes to the attorney who was handling the case; and retained prepaid fees from clients. None of those things happened in this case. Here, the client was represented well and the panel specifically found that neither the client nor the general public was injured.\\nNeither MRPC 5.3 nor the Comment accompanying it addresses whether an attorney suspended from the practice of law may work as a law clerk. Although MRPC 5.3 refers to \\\"nonlawyer assistants,\\\" the term is not defined. The Comment specifically mentions an attorney can hire \\\"assistants . . . , including secretaries, investigators, law student interns, and paraprofessionals.\\\" Assistants are not limited to the enumerated list because of the word \\\"including.\\\" The last sentence of the Comment states that nonlawyers \\\"do not have legal training and are not subject to professional discipline.\\\" This would seem to indicate that suspended attorneys do not fall within the nonlawyer assistant category. The Comments accompanying the MRPC, however, only provide interpretive guidance. Supreme Court Rule 226, Scope (1991 Kan. Ct. R. Annot. 227).\\nRegardless of whether suspended lawyers can be read into MRPC 5.3, Kansas has not addressed explicitly whether a suspended attorney may work as a law clerk. The situation is addressed implicitly in In re Keil, 248 Kan. 629, 631, 809 P.2d 531 (1991), in which the respondent was reinstated with two years' probation after being placed voluntarily on disability inactive status. During part of the time he was on disability inactive status, he was employed as a law clerk. It follows that if an attorney on disability inactive status may work as a law clerk, then an attorney suspended from the practice of law should be able to do the same.\\nOther jurisdictions have addressed whether a suspended attorney may be employed as a law clerk. In Matter of Frabizzio, 508 A.2d 468, 469 (Del. 1986), the Supreme Court of Delaware held that the petitioner, an attorney suspended from the practice of law for two years, could work as a law clerk or a paralegal, providing the suspended attorney has no \\\"direct contact as a law clerk or paralegal with clients, witnesses, or prospective witnesses.\\\" The Delaware court adopted Justice Overton's reasoning in his dissent in The Florida Bar v. Thomson, 310 So. 2d 300 (Fla. 1975), to bar direct contact:\\n\\\" 'To the layman, the difference between mere clerking and the unrestrained practice of law is not readily apparent. He observes an attorney, supposedly under suspension for unethical conduct, walking into law offices; necessarily he must wonder whether the attorney is indeed being disciplined. This confusion is compounded when the disciplined attorney is interviewing witnesses as an investigator on behalf of the law firm or otherwise discussing cases with clients. The resulting detriment; to the integrity and reputation of the Bar is obvious. . . . [We also are] concerned that the attorney who is suspended or disbarred for unethical conduct, upon returning to a law office, will encounter difficulty in confining himself to strictly preparatory functions. [Citation omitted.]' \\\" 508 A.2d at 469.\\nIn The Florida Bar v. Thomson, the respondent, an attorney suspended from the practice of law, obtained employment as a law clerk. According to the respondent, he\\n\\\" 'limited his functions exclusively to work of a preparatory nature such as research, taking statements of witnesses consistent with initial investigation of a case, assembling information for review, and like work that would enable the attorney-employer to carry a given matter to a conclusion through his own examination, approval or additional effort.' He adds that all of his activities have been performed under the direct supervision of the attorney-employer, and that he \\\"has not held himself out to be an attorney, has not signed any pleadings or letters in behalf of any attorney, has made no court appearances, has had no direct contact with any client or given any legal advice to any client and has conducted himself in the sole role of research investigator for his employer.' \\\" 310 So. 2d at 301.\\nThe Supreme Court of Florida held that the respondent could work as a law clerk or investigator during his suspension, agreeing with the respondent that\\n\\\"the activities of a law clerk do not constitute the practice of law so long as they are limited to work of a preparatory nature such as research and investigation of details, assembly of data and similar work to enable an attorney-employer to carry a given matter to a conclusion through his own examination, approval or additional effort. [Citation omitted.]\\\" 310 So. 2d at 302.\\nThe court reasoned that the respondent's employment benefited the respondent, his family, his employer, the public, and the Bar. Furthermore,\\n\\\"[e]mployment of [the respondent] in a supervised status within the profession seems to us to be an almost ideal manner in which he may demonstrate during his suspension his potential for rehabilitation and maintain his competency to practice law upon reinstatement. What better way is there for him to keep abreast of the law . . . .\\\" 310 So. 2d at 302.\\nIn Application of Christianson, 215 N.W.2d 920 (N.D. 1974), in dicta, the Supreme Court of North Dakota concluded, that a suspended or disbarred attorney could work as a law clerk if employed by a licensed attorney. In reaching this conclusion, the court relied upon Washington and California case law. The court stated:\\n\\\"The basic distinction between the activities of a law clerk and those of a lawyer is that a law clerk works for an .employing attorney, while an attorney engages in professional activities for a client.\\n\\\"Perhaps the most definitive statement in case law of just what a law clerk may do is embodied in the following from Ferris v. Snively, 172 Wash. 167, 19 P.2d 942 (1933):\\n'We realize that law clerks have their place in a law office, and we recognize the fact that the nature of their work approaches in a degree that of their employers. The line of demarcation as to where their work begins and where it ends cannot always be drawn with absolute distinction and accuracy. Probably as nearly as it can be fixed, and it is sufficient to say that it is work of a preparatory nature, such as research, investigation of details, the assemblage of data and other necessary information, and such other work as will assist the employing attorney in carrying the matter to a completed product, either by his personal examination and approval thereof or by additional effort on his part. The work must be such, however, as loses its separate identity and becomes either the product, or else merged in the product, of the attorney himself.' [Emphasis added.] 19 P.2d at 945.\\nA further statement on the same subject is as follows:\\n'A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, nonlawyer draftsmen, or nonlawyer researchers. In fact, he may employ nonlawyers to do about any task for him except counsel clients about law matters, engage directly in the practice of law, appear in. court or appear in formal proceedings as part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible to the client.' ABA Comm, on Professional Ethics, Opinions, No. 316 (Supp. 1967), quoted from 71 Colum. L: Rev. 1153, 1172.\\n\\\"In In re McKelvey, 82 .Cal. App. 426, 255 P. 834 (1927), a disbarred attorney, upon application for reinstatement, was held not to have engaged in the practice of law during the 10-year period following his disbarment although the evidence showed that he had been employed as a law clerk for brief intervals during that period and that he had, as a law clerk, done research and prepared briefs and pleadings and had given advice on minor legal matters to clients of his attorney-employer.\\n\\\"The court held that the petitioner had not attempted by these actions to practice law indirectly and thus evade the effect of his disbarment in light of the fact that the evidence failed- to' show that he was:\\n1. Obtaining clients;\\n2. Retaining his former clients;\\n3. Serving clients with the connivance of another attorney and through the use of another attorney's name; or\\n4. Receiving a law clerk's salary as a surrogate for legal fees.\\n\\\"A disbarred attorney who is ostensibly employed as a clerk in the office of a licensed attorney engages in the practice of law when he retains his own clients, acts independently of the licensed attorney in matters regarding legal advice, and handles legal matters in toto, in that the alleged attorney-employer has knowledge of the existence of such matters but does not supervise or manage their progress and disposition. [Citation omitted.]\\\" 215 N.W.2d at 926-27.\\nKansas case law is consistent with the other jurisdictions cited in that an attorney suspended from the practice of law cannot hold himself or herself out to be an attorney, either through signing letters and pleadings or appearing in court; cannot counsel clients about legal matters; and cannot maintain or retain clients. The suspended attorney remains a member of the Kansas Bar, subject to the provisions of the MRPC, and, thus, subject to being disciplined or disbarred by this court if he or she exceeds or abuses his or her employment. Both the suspended attorney and the attorney-employer are subject to discipline if the suspended attorney engages in the unauthorized practice of law or in unethical professional conduct.\\nThe consensus is that an attorney suspended from the practice of law may obtain employment as a law clerk, providing there are certain limitations upon the suspended attorney's activities. Regarding limitations, we are persuaded the better rule is that an attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, paralegal, or in any capacity as a lay person for a licensed attorney-employer if the suspended lawyer's functions are limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer and does not involve client contact. Any contact with a client is prohibited. Although not an inclusive list, the following restrictions apply: a suspended or disbarred lawyer may not be present during conferences with clients, talk to clients either directly or on the telephone, sign correspondence to them, or contact them either directly or indirectly.\\nObviously, we do not accept that a disbarred Or suspended lawyer may engage in all activities that a nonlawyer may perform. By barring contact with the licensed attorney-employer s clients, we prohibit a disbarred or suspended attorney from being present in the courtroom or present during any court proceedings involving clients.\\nHere, Wilkinson maintains he was not practicing law. He claims to have worked as Pierson's law clerk, under the direction or supervision of Pierson, and not to have acted on his own. He testified he did not draft any of the documents, did not appear in court, and never offered advice or suggestions to Rice outside the presence of Pierson. Wilkinson states he did not present himself as an attorney \\u2014 he disclosed the fact that he was suspended from the practice of law to both Rice and Hupp. Rice did not pay Wilkinson \\u2014 Rice paid Pierson, and then Pierson reimbursed Wilkinson for services rendered as a law clerk.\\nWhen asked if it was his understanding that law clerks can give legal advice, Wilkinson stated, \\\"Under the supervision of any attorney. I'm not rendering advice, I'm working with \\u2014 and [the licensed attorney] actually has the responsibility.\\\"\\nRice testified that he considered Pierson to be his attorney. Rice said that Wilkinson introduced Pierson to him and that he retained Pierson to represent him. Rice said he understood Pier-son employed Wilkinson as a law clerk.\\nAttorney misconduct must be \\\"established by substantial, clear, convincing, and satisfactory evidence.\\\" In re Smith, 243 Kan. 584, 585, 757 P.2d 324 (1988).\\n\\\"The report of a hearing panel of the Board for Discipline of Attorneys, while advisory only, will be given the same dignity as a special verdict by a jury, or the findings of the trial court, and will be adopted where amply supported by the evidence, where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony. [Citation omitted.]\\\" In re Jackson, 249 Kan. 172, 175, 814 P.2d 958 (1991).\\nThis state is blessed with talented, conscientious attorneys who give freely of their time to serve on disciplinary panels and as investigators of complaints. This court is very appreciative of that fact. Nonetheless, our duty is to the law, and, despite our great respect for the panel members in this case, we are of the opinion the alleged misconduct of the unauthorized practice of law has not been established clearly and convincingly. This is due, in part, to our failure previously to have given clear and concise directions to the Bar concerning what a disbarred or suspended lawyer employed by a licensed lawyer may do. This opinion is intended to remedy that situation.\\nBefore proceeding to the final issue in this case, we will comment briefly on Wilkinson's argument that if no injury or potential injury to the client or the general public occurs, a disciplinary proceeding violates Wilkinson's constitutional right to free speech.\\nAn attorney's First Amendment rights can be regulated. In In re Anderson, 247 Kan. 208, 212, 795 P.2d 64 (1990), cert. denied - U.S. -, 111 S. Ct. 985 (1991), this court stated:\\n\\\" '[A]n attorney's right to free speech is tempered by his obligation to both the courts and the bar, an obligation to which ordinary citizens are not held. In the case of in re Sawyer, 360 U.S. 622, 3 L. Ed. 2d 1473, 79 S. Ct. 1376 [1959], the last case in which the United States Supreme Court addressed itself .to the subject, it appears that at least five justices agreed that the right to free speech may not be invoked to protect an attorney against discipline for unethical conduct.' [Citation omitted.]\\\"\\nSee, e.g., In re Johnson, 240 Kan. 334, 335, 729 P.2d 1175 (1986)(DR 8-102[B] [1991 Kan. Ct. R. Annot. 215] restricts an attorney's First Amendment rights by \\\"prohibiting a lawyer from knowingly making a false accusation against a judge or other adjudicatory officer\\\"); State v. Russell, 227 Kan. 897, Syl. \\u00b6 3, 610 P.2d 1122 (\\\"Although a lawyer may speak out and state his opinions on current campaign issues without fear of jeopardizing his license to practice law, his First Amendment rights are not absolute. The guarantee of freedom of speech will not protect him from disciplinary action as a lawyer if he is guilty of known falsehood intentionally used and published for the purpose of misleading the voters and gaining personal advantage for himself or his candidate.\\\"), cert. denied 449 U.S. 983 (1980).\\nWilkinson contends there is an important distinction in whether there was injury or potential injury to the client or the public. He concedes that if there is injury or potential injury, this court has the inherent power to regulate the profession. See Martin v. Davis, 187 Kan. 473, 478-79, 357 P.2d 782 (1960), in which this court stated:\\n\\\"[T]he practice of law is so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to regulate the practice naturally and logically belongs to the judicial department of the government. [Citation omitted.] Included in that power is the supreme court's inherent right to prescribe conditions for admission to the Bar, to define, supervise, regulate and control the practice of law, whether in or out of court, and this is so notwithstanding acts of the legislature in the exercise of its police power to protect the public interest and welfare. [Citations omitted.]\\\"\\nWilkinson asserts that if there is no injury or potential injury, there is no need to protect the public interest and welfare; thus, this court's inherent power to regulate the profession ceases.\\nWilkinson's argument fails to take into account State v. Callahan, 232 Kan. 136, 142, 652 P.2d 708 (1982), in which this court concluded that \\\"[disciplinary proceedings are for the protection and benefit of the public at large. [Citation omitted.] Professional misconduct is not excused because ultimately no loss is suffered. [Citations omitted.]\\\"\\nBecause an attorney's freedom of speech can be curtailed in the interest of regulating the profession and because a showing of injury or potential injury is not required, Wilkinson's argument, although creative, must fail.\\nWilkinson's final argument is that he did not fail to cooperate with the disciplinary administrator's investigation in violation of Supreme Court Rule 207 (1991 Kan. Ct. R. Annot. 149).\\nBruce Miller, Disciplinary Administrator, sent Wilkinson a letter dated January 12, 1990. The letter stated that a letter of complaint about Wilkinson's alleged activities had been received and a copy was enclosed and that the matter had been referred to the chairman of the Ethics and Grievance Committee of the Topeka Bar Association for investigation. Wilkinson's response was requested.\\nWilkinson testified he did not receive Miller's letter. The letter was returned to the Disciplinary Administrator's office as \\\"undeliverable as addressed, no forwarding address on file.\\\" The letter had been sent to the address on file with the Clerk's office; however, the address no longer was current. Wilkinson stated that he notified the Clerk's office of his new address in the fall of 1989, prior to Miller's letter being sent to the old address; however, an employee of the Clerk's office later informed him that his notification had \\\"slipped through the cracks.\\\" No evidence was offered to the contrary.\\nA Topeka attorney and member of the Ethics and Grievance Committee, who had been appointed to investigate the complaint against Wilkinson, sent Wilkinson a letter dated February 21, 1990. The letter stated:\\n\\\"If you have any written response to the assertions that you were acting as Earl Rice's attorney or would like to explain your relationship to this transaction between Rice and Hupp, I would very much appreciate your input so it can be considered as part of my report.\\\"\\nThe letter also indicated a copy of J.B. King's letter, which formed the basis of the complaint against Wilkinson, was enclosed.\\nThe disciplinary administrator contends that once Wilkinson received that letter, he had notice of a pending complaint, but chose not to respond and offered no \\\"rational explanation\\\" for failing to cooperate.\\nWilkinson acknowledged receiving the letter, but stated a copy of the complaint letter was not enclosed. Wilkinson admitted he did not respond. When asked why he did not respond or let someone know there was no enclosure, Wilkinson testified:\\n\\\"A. Well, I figured the complaint had already been filed, and if a complaint had been filed I \\u2014 before I would respond, I'd want to see what the charges were. And I think that just goes to basic process, if they're going to file a complaint against you, why, they'll make sure you get a copy of it and in a meaningful and timely way, and they hadn't done that. . . .\\n\\\"Q. Did you intend not to be cooperative?\\n\\\"A. No.\\n\\\"Q. And it was the tone and the people involved that told you probably it was wiser not to respond.\\n\\\"A. I felt that until they furnished me with the charges that they were charging me with, there was no need to respond. I think that's fundamental. \\\"\\nWilkinson testified he filed an answer to the complaint as soon as he received the disciplinary administrator's letter and a copy of the complaint letter.\\nWilkinson also points out that the investigator's letter said \\\"if\\\" Wilkinson had a response to the alleged complaint, he should share it with the investigator. Wilkinson correctly notes that \\\"if' does not require a response.\\nIn comparison to other cases in which this court upheld a panel's finding that the respondent failed to cooperate in the investigation, the evidence against Wilkinson is weak. See, e.g., Smith, 243 Kan. at 586 (\\\"respondent failed to appear before the disciplinary panel, failed to cooperate with the disciplinary administrator or respond to requests of the administrator or the investigating attorneys, and failed to appear in this court\\\"). Although it would have behooved Wilkinson to inquire about the enclosure that he testified was not enclosed, the investigator's letter did not specifically require a response from him. Wilkinson responded and cooperated in the investigation upon receiving notice of the complaint against him. The record before us fails to prove, by clear and convincing evidence, that Wilkinson failed to cooperate in the investigation.\\nIt Is, Therefore, Ordered that the complaint against John E. Wilkinson be dismissed.\"}"

kan/1485205.json

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+"{\"id\": \"1485205\", \"name\": \"State of Kansas, Appellee, v. Jerry D. Bramlett, Appellant\", \"name_abbreviation\": \"State v. Bramlett\", \"decision_date\": \"2002-03-08\", \"docket_number\": \"No. 86,138\", \"first_page\": 67, \"last_page\": \"70\", \"citations\": \"273 Kan. 67\", \"volume\": \"273\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:32:36.156419+00:00\", \"provenance\": \"CAP\", \"judges\": \"Davis, J., not participating.\", \"parties\": \"State of Kansas, Appellee, v. Jerry D. Bramlett, Appellant.\", \"head_matter\": \"No. 86,138\\nState of Kansas, Appellee, v. Jerry D. Bramlett, Appellant.\\n(41 P.3d 796)\\nOpinion filed March 8, 2002.\\nJohn M. Duma, of Kansas City, argued the cause and was on the brief for appellant.\\nSheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomaste, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.\", \"word_count\": \"1043\", \"char_count\": \"6549\", \"text\": \"The opinion of the court was delivered by\\nSix, J.:\\nThis case addresses Defendant Jerry D. Bramlett's claim that the imposition of consecutive sentences, each within its presumptive statutory range, violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Bramlett pled guilty to seven sex crimes. The district court ordered four of the seven sentences to run consecutively. Bramlett appealed. In an unpublished opinion filed August 3, 2001, the Court of Appeals dismissed the case on the basis that it had no jurisdiction to review a presumptive sentence. It also rejected Bramlett's argument that the sentence was unconstitutional under Apprendi.\\nWe granted review to resolve this first impression issue. See K.S.A. 20-3018(b).\\nWe find no Apprendi violation and thus affirm the Court of Appeals. Our appellate courts are without jurisdiction to review sentences that are within the presumptive range for the crime. K.S.A. 21-4721(c)(l).\\nFACTS\\nAt sentencing, the State moved for an upward durational departure, which the district court denied. Bramlett was sentenced as follows: 165 months for rape (count 35), 154 months for aggravated criminal sodomy (count 1), 123 months for each of three additional counts of aggravated criminal sodomy (counts 28, 36, and 37), 51 months for aggravated indecent liberties (count 4), and 34 months for sexual exploitation of a child (count 38). Each sentence represented the aggravated sentence within the presumptive statutory range. See K.S.A. 2001 Supp. 21-4704, The district court ordered counts 1, 4, 35, and 38 to run consecutively. In doing so, the court acknowledged that Bramlett's sentence would be statutorily capped at 330 months. See K.S.A. 2001 Supp. 21-4720(c)(3).\\nDISCUSSION\\nIn his petition for review, Bramlett raises the sole question of whether, under Apprendi, his constitutional rights were violated when the district court imposed consecutive sentences. He asserts that the grounds on which the district court relied for imposing consecutive sentences, failure to fully accept his responsibility, were the same factual grounds the court had rejected in denying the upward departure requested by the State. Bramlett expands his assertion to reach a conclusion that his consecutive sentences were imposed to bypass appellate review. He concludes: \\\"To allow a sentencing court to circumvent the due process rights of a defendant to have a jury decide the facts when a sentence is increased by merely characterizing the sentences as consecutive sentences instead of an upward departure should be grounds for reversal.\\\"\\nGenerally, sentences within the presumptive range are not reviewable. The imposition of consecutive sentences does not constitute a departure sentence subject to appeal. State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000). However, the issue of whether the imposition of consecutive sentences is unconstitutional under Apprendi involves a question of law over which we have unlimited review. See State v. Crow, 266 Kan. 690, 694, 974 P.2d 100 (1999).\\nK.S.A. 21-4608(a) provides that when separate sentences of imprisonment for different crimes are imposed on a defendant on the same day, the sentences shall run concurrently or consecutively as the court directs. Whether a defendant receives concurrent or consecutive sentences in within the discretion of the sentencing court. State v. Jamison, 269 Kan. 564, 576, 7 P.3d 1204 (2000). In general, a defendant has no constitutional right to concurrent rather than consecutive sentences. U.S. v. White, 240 F.3d 127, 135 (2d Cir. 2001).\\nIn Apprendi, the United States Supreme Court held that, \\\"[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\\\" 530 U.S. at 490.\\nApprendi does not address the question of consecutive sentences. The Apprendi court said:\\n\\\"It is appropriate to begin by explaining why certain aspects of the case are not relevant to the narrow issue that we must resolve. First, the State has argued that even without the trial judge's finding of racial bias, the judge could have imposed consecutive sentences on counts 3 and 8 that would have produced the 12-year term of imprisonment that Apprendi received; Apprendi's actual sentence was thus within the range authorized by statute for the three offenses to which he pleaded guilty. . . . The constitutional question, however, is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count. . . . The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts.\\\" (Emphasis added.) 530 U.S. at 474.\\nIn State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), a durational departure case, we addressed the application of Apprendi to Kansas statutory and case law. See K.S.A. 2001 Supp. 21-4716. There, we noted that the district court had imposed two 68-month sentences upon Gould, going beyond the maximum sentence in the applicable grid box for each. 271 Kan. at 413. Thus, Apprendi applied.\\nHere, unlike Gould, the district court imposed a presumptive sentence for each count within the applicable grid box. The highest level of felony for which Bramlett was convicted was rape, a level one felony. He received the maximum sentence in the applicable grid box (165 months). Bramlett contends that the district court erroneously increased his sentence for rape beyond 165 months by imposing consecutive sentences for his other crimes. Bramlett's argument is not persuasive.\\nThe district court did not exceed die maximum KSGA sentence for any individual count. Therefore, it cannot be said that, as to any individual count, tire court's findings resulted in the imposition of a greater punishment than was authorized by the jury's verdict. See Apprendi, 530 US at 494.\\nThe Court of Appeals' decision dismissing the appeal is affirmed. The district court is affirmed.\\nDavis, J., not participating.\\nBrazil, S.J., assigned.\"}"

kan/1488360.json

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+"{\"id\": \"1488360\", \"name\": \"State of Kansas, Appellee, v. Alroy V. Martens, Appellant\", \"name_abbreviation\": \"State v. Martens\", \"decision_date\": \"2002-09-20\", \"docket_number\": \"MODIFIED OPINION No. 84,635\", \"first_page\": 459, \"last_page\": \"472\", \"citations\": \"274 Kan. 459\", \"volume\": \"274\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T00:28:16.534140+00:00\", \"provenance\": \"CAP\", \"judges\": \"Davis, J., not participating.\", \"parties\": \"State of Kansas, Appellee, v. Alroy V. Martens, Appellant.\", \"head_matter\": \"MODIFIED OPINION No. 84,635\\nState of Kansas, Appellee, v. Alroy V. Martens, Appellant.\\n(54 P.3d 960)\\nModified opinion filed September 20, 2002.\\nPeter T. Maharry, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.\\nRuss K Roe, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.\", \"word_count\": \"4278\", \"char_count\": \"27220\", \"text\": \"The opinion of the court was delivered by\\nAbbott, J.:\\nThis is a direct appeal by the defendant, Alroy V. Martens, from his convictions following a bench trial for three felony counts of sale of marijuana, and one count each of felony manufacture of methamphetamine, felony possession of marijuana with intent to sell, felony cultivation of marijuana, felony possession of drug paraphernalia, felony possession of a stimulant, felony possession of marijuana without a tax stamp affixed, and misdemeanor possession of marijuana.\\nIn our original opinion filed March 15, 2002, State v. Martens, 273 Kan. 179, 42 P.3d 142 (2002), we reversed in part and remanded with directions. On March 21, 2002, Martens filed a motion for clarification under Supreme Court Rule 7.06 (2001 Kan. Ct. R. Annot. 51). No response was filed. We grant the motion and modify our original opinion.\\nMartens contends on appeal that the district court committed error by: (1) denying his motion to arrest judgment; (2) convicting him of manufacture of methamphetamine when the evidence was only sufficient to show attempt to manufacture; and (3) allowing the late endorsement of two crucial witnesses for the State whose testimony substantiated his sale of marijuana.\\nDuring June and July of 1998, a confidential informant purchased marijuana from Martens in a series of controlled buys. Following the controlled buys, a search warrant was issued for Martens' residence. During the subsequent search, officers discovered numerous items associated with the cultivation of marijuana and what appeared to be a methamphetamine lab.\\nMartens waived his right to a jury trial, and a bench trial was conducted. The district court found Martens guilty of the charges set forth in the preceding paragraphs.\\nMartens filed a motion for judgment of acquittal on the charge of manufacturing methamphetamine. The stated basis for the motion was that \\\"the state presented no evidence whatsoever that the defendant manufactured methamphetamine.\\\" In addition, counsel for Martens filed a motion to arrest judgment of conviction, arguing that the information was jurisdictionally defective in that it failed to sufficiently charge the crime of attempted manufacture of methamphetamine.\\nIn denying the motion for judgment of acquittal, the district judge stated: \\\"I think Mr. Martens, according to my earlier findings, was charged under a statute which prohibited both or either . land of conduct [attempt to manufacture or manufacture of a controlled substance].\\\"\\nMartens was sentenced to a controlling term of 49 months' confinement in connection with the primary offense of \\\"manufacture or attempt to manufacture methamphetamine\\\" under K.S.A. 1997 Supp. 65-4159. Martens was also sentenced to a term of 15 months each for the three convictions for sale of marijuana, to run consecutive to each other but concurrent to the base sentence and, in addition, was sentenced to 36 months of postrelease supervision. In other words, the district court fashioned the sentence so that if Count 5 were reversed and not retried, Martens would still serve a controlling sentence of 45 months.\\nThe Court of Appeals affirmed the district court's decision. In doing so it held that because K.S.A. 1997 Supp. 65-4159 creates a single offense of manufacturing a controlled substance, the complaint was fatally defective in failing to incorporate the elements of attempt. The Court of Appeals found, however, that because the amended complaint charged Martens with both manufacturing or attempting to manufacture a controlled substance and alleged the elements of unlawful manufacture of methamphetamine, it \\\"fully informed Martens of the crime with which he was charged.\\\" 29 Kan. App. 2d at 366. Without further comment, the Court of Appeals concluded that the amended complaint was not jurisdiction-ally defective.\\nIn addition, the Court of Appeals found the evidence sufficient to support Martens' conviction for manufacturing methamphetamine. Further, that court held diat the late endorsement of two witnesses for the State did not result in surprise or prejudice to Martens.\\nMartens timely petitioned for review. This court granted his petition for review.\\nMOTION TO ARREST JUDGMENT\\nAccording to Martens, Count 5 of the amended complaint was fatally defective as to the charge of manufacturing or attempting to manufacture methamphetamine in that it failed to include the essential elements of attempt. Martens argues that the Court of Appeals found attempt to manufacture a controlled substance was a separate and distinct crime from the offense of manufacture of a controlled substance, and that the complaint did not include the elements of attempt and was therefore fatally defective as to that crime. Martens asserts that the district court improperly convicted him of attempt to manufacture methamphetamine after he was charged with the manufacture of methamphetamine under K.S.A. 1997 Supp. 65-4159, and, therefore, he believes his conviction is void for lack of subject matter jurisdiction.\\nMartens followed the proper procedure and filed a motion for arrest of judgment. Therefore, we must determine whether the amended complaint clearly informed Martens of the precise offense charged against him. This court's review of an allegedly defective complaint or information is unlimited. State v. Crane, 260 Kan. 208, 221, 918 P.2d 1256 (1996).\\nOn appeal, the State admitted that the amended complaint failed to allege the elements of attempt, but contended it was not required to list them because K.S.A. 1997 Supp. 65-4159 encompassed by definition the attempt to manufacture a controlled substance.\\nIn his petition for review, Martens asserts that the Court of Appeals held there were two criminal charges in Count 5 of the complaint: (1) attempt to manufacture methamphetamine and (2) the actual manufacture of methamphetamine. Martens argues that the Court of Appeals found the attempt charge jurisdictionally defective and the manufacture charge proper, but erred in upholding his conviction because the district court convicted him of attempted manufacture of methamphetamine.\\nA. Manufacture versus attempted manufacture of methamphetamine.\\nOur analysis of this issue involves the interpretation of K.S.A. 1997 Supp. 65-4159. Interpretation of a statute is a question of law, and our review is unlimited. An appellate court is not bound by the district court's interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).\\nHere, the district court stated that it found Martens \\\"guilty of manufacturing or attempting to manufacture as the statute states.\\\" In addition, the district judge stated: \\\"I think Mr. Martens, according to my earlier findings, was charged under a statute which prohibited both or either . . . land of conduct.\\\" These statements establish the fact that the district court believed that K.S.A. 1997 Supp. 65-4159 included both the actual manufacture of methamphetamine as well as the attempted manufacture of methamphetamine.\\nIn its review of this case, our Court of Appeals distinguished the crime of attempt to manufacture methamphetamine from the crime of manufacture of methamphetamine, stating:\\n\\\"K.S.A. 1997 Supp. 65-4159 is titled, in part, as 'Unlawful manufacturing or attempting such of any controlled substance.' The tide of the statute, however, is not dispositive to die issue of whetiier the statute creates a single offense because '[t]he tide or caption prefacing the text of a statute is prepared by die revisor of statutes (K.S.A. 77-133[b]) and \\\"forms no part of the statute itself.\\\" [Citation omitted.]' State v. Larson, 12 Kan. App. 2d 198, 201, 737 P.2d 880 (1987).\\n\\\"Section (a) of K.S.A. 1997 Supp. 65-4159 states as follows: 'Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.' (Emphasis added.) We interpret this subsection as providing die elements of die offense. The only means of violating die statute is manufacturing a controlled substance or a controlled substance analog. Because the statute does not specify attempted manufacture of a controlled substance as a means of violating the statute, attempted manufacture of a controlled substance is a separate offense created under K.S.A. 21-3301(a). This interpretation is supported by PIK Crim. 3d 67.21-A (1999 Supp.), which lists manufacture of a controlled substance, not attempted manufacture, as the means of violating K.S.A. 1997 Supp. 65-4159.\\\" 29 Kan. App. 2d at 364-65.\\nThe legislature enacted 65-4159 in 1990, and subsequently amended it in 1993 and 1994. The 1990 and 1993 statutes included language prohibiting \\\"the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance.\\\" K.S.A. 65-4159; K.S.A. 1993 Supp. 65-4159. In 1994, however, the legislature extensively revised 65-4159, dividing it into four subsections and changing the language of the first subsection to read: \\\"(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.\\\" The 1994 amendment omitted the words \\\"or attempting to unlawfully manufacture\\\" from the statutory prohibition subsection.\\nAlthough subsections (b) and (c) of 65-4159 still mention \\\"attempting to unlawfully manufacture,\\\" those subsections only mandate the imposition of the same penalty for attempting to unlawfully manufacture as for the actual manufacture of a controlled substance. Subsections (b) and (c) do not criminalize any specific conduct.\\nWithin subsection (a) of 65-4159, the legislature in 1994 deleted the phrase \\\"or attempting to unlawfully manufacture\\\" previously seen in the statute. \\\"When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. [Citation omitted.]\\\" Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 471, 970 P.2d 60 (1980), cert. denied 528 U.S. 812 (1999).\\nWe conclude that following its amendment in 1994, 65-4159 no longer includes the crime of attempting to manufacture a controlled substance. In addition, we find that the attempted manufacture of a controlled substance is a separate offense controlled by K.S.A. 21-3301(a).\\nIn reviewing this case, the Court of Appeals stated that \\\"[t]he only means of violating [K.S.A. 1997 Supp. 65-4159] is manufacturing a controlled substance\\\" (29 Kan. App. 2d at 365), which seems to imply that the term \\\"manufacture,\\\" as used in K.S.A. 1997 Supp. 65-4159, may be defined to mean only the completed process of producing methamphetamine. Upon review of the statutory definitions provided in K.S.A. 1997 Supp. 65-4101(e) and (n), however, we cannot fully agree with that interpretation of K.S.A. 1997 Supp. 65-4159.\\nIn K.S.A. 1997 Supp. 65-4101(n), \\\"manufacture\\\" was defined as the \\\"production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis . . . .\\\" Likewise, in K.S.A. 1997 Supp. 65-4101(e), a \\\"controlled substance\\\" meant \\\"any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65-4105, 65-4107, 65-4109, 65-4111 and 65-4113, and amendments to these sections.\\\" (Emphasis added.)\\nThe statutory definitions of the terms \\\"manufacture\\\" and \\\"controlled substance\\\" in the Uniform Controlled Substances Act include but do not mandate the consummation of a final product. See People v. Lancellotti, 19 Cal. App. 4th 809, 814, 23 Cal. Rptr. 2d 640 (1993) (quoting People v. Jackson, 218 Cal. App. 3d 1493, 1504, 267 Cal. Rptr. 841 [1990]) (\\\" 'The ongoing and progressive malting, assembly or creation of [a controlled substance] from its component chemicals may, but does not necessarily by definition, include the culmination of the manufacturing process, the finished . . . product.' [Citation omitted.]\\\"). In other words, to prove the crime of manufacture of methamphetamine, the State must show that the defendant (1) intentionally (2) completed the manufacture of methamphetamine or (3) could have successfully manufactured methamphetamine.\\nUnder K.S.A. 21-3301(a), the anticipatory crime of attempt is defined as \\\"any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.\\\" To establish attempt, the State must show that the defendant: (1) performed an overt act toward the commission of a certain crime; (2) did so with the intent to commit the crime; and (3) failed to perpetrate the crime or was prevented or intercepted in the execution of the crime. See Crane, 260 Kan. at 222; State v. Sullivan & Sullivan, 224 Kan. 110, 122, 578 P.2d 1108 (1978); PIK Crim. 3d 55.01 (1999 Supp.).\\n\\\"It is the intent to commit the crime, not the possibility of success, which determines whether the defendant's act or omission constitutes the crime of attempt.\\\" 21 Am. Jur. 2d, Criminal Law \\u00a7 174, p. 251. By contrast, the focus of the crime described in 65-4159 is the successful manufacture or potentially successful manufacture of a controlled substance. Thus, while the crimes of attempt to manufacture methamphetamine and actual manufacture of methamphetamine may overlap somewhat, the distinction between the two crimes may be said to depend upon the degree of likelihood that a defendant's efforts will succeed in producing methamphetamine.\\nB. Offenses charged in the amended complaint.\\nIn order to determine whether the complaint against Martens was jurisdictionally defective, we next examine- the offenses charged against Martens in the criminal complaint. The handwritten amendments to Count 5, made on August 30, 1999, read:\\n\\\"That in Saline County, Kansas, on or about or between March 1 through the 9th day of July, 1998, one, ALROY VERN MARTENS did then and there unlawfully, willfully, and feloniously manufacture or attempt to manufacture a controlled substance, to wit: methamphetamine.\\n\\\"K.S.A. 65-4159 (1997 Supp.) (Manufacture of Methamphetamine)\\n\\\"Level 2D Nonperson Felony (Sentence range .46-83 months)\\\"\\nWhile Count 5 does allege that Martens \\\"willfully . attempted] to manufacture . . . methamphetamine,\\\" K.S.A. 21-3301 was not cited.\\nIn State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), this court previously stated:\\n\\\"The Bill of Rights in the Kansas Constitution requires that the accused be allowed to demand the nature and cause of the accusation. Kan. Const. Bill of Rights, \\u00a7 10. A defendant cannot be charged in the information with one offense and be convicted of another and different offense which is not a lesser included offense of the crime charged when instructed upon pursuant to statute. [Citation omitted.] The \\u00a7 10 language is similar to the language of the Sixth Amendment to the United States Constitution, which extends to an accused the right 'to be informed of the nature and cause of the accusation.' [Citation omitted.]\\n\\\"The constitutional protections referred to are implemented by the requirements of K.S.A. 22-3201. The complaint, information, or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged and, when drawn in the language of the statute, shall be deemed sufficient. An information is sufficient if it clearly informs the defendant of the precise offense of which he or she is accused so that the accused may prepare a defense and so that a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense. [Citation omitted.]\\\" 246 Kan. at 753-54.\\n\\\"The sufficiency of the charging document is measured by whether it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of what he or she must be prepared to meet, and is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import. [Citations omitted.]\\\" State v. Smith, 268 Kan. 222, 226-27, 993 P.2d 1213 (1999).\\nThe record reveals the following discourse between the Honorable Dan Boyer and counsel for Martens on September 3,1999, regarding the court's findings on the charges of manufacturing or attempting to manufacture methamphetamine:\\n\\\"[THE COURT]: Let's go back to Count 5.1 gave that particular consideration. R's in the Court's view that you're charged under a statute which in its clear terms makes it unlawful to either manufacture, attempt to manufacture a controlled substance. The Court must necessarily though because of the inherent nature of that statute look at the law of attempt.\\n\\\". . . Specifically, as I considered Count 5, Mr. Martens, I had to consider had you just simply gone through acts of preparation or had you made significant steps toward the commission of the crime of manufacturing. Your intent is not in dispute. In the Court's opinion, it's very clear, you admitted at the police station when you were interviewed, on July the 8th I think it was, that you had attempted to manufacture methamphetamine but had failed to do so. . . . Sol come down to the issue, had you gone far enough to be guilty of the crime of attempt to manufacture. Now, I'm not so sure I agree with Mr. Stanton that buying the flask and the chemicals are enough, that's a separate crime as I recall, precursors is a separate crime. I'm not sure that's enough. . . . But it seems to the Court when you start mixing and baking you've gone beyond that step. The lab man who came in who is supposed to be one of the State's experts, Dwain Worley, a KBI specialist on clandestine labs, called from the evidence he inferred this was a failed attempt to manufacture methamphetamine. He lent great credit to the coffee filters which contained ephedrine. . . . [A]ll in all, I must conclude, based \\u2014 I find that intent, there's no question about it. Now your statement was that you attempted to cook within two months prior to your arrest, statute of limitations two years. Mr. Stanton did amend the Complaint regarding Count 5 to include the language on or between March 1 and the 9th day of July, 1998. All things considered, sir, I find you guilty of Count 5 \\u2014 \\u2022\\n\\\"[Counsel for Martens]: Your Honor.\\n\\\"THE COURT: \\u2014manufacture, attempt to manufacture of methamphetamine.\\n\\\"[Counsel for Martens]: Your Honor, is the Court then finding the defendant guilty of manufacturing?\\n\\\"THE COURT: No, I'm finding him guilty of manufacturing or attempting to manufacture as the statute states.\\n\\\"[Counsel for Martens]: Your Honor, I don't know how the Court can do that when they're separate offenses, Your Honor.\\n\\\"THE COURT: Well, I conclude that they aren't; that's my premise.\\\"\\nThe district court's discourse reveals that the judge found Martens guilty of conduct meeting the elements of attempt to manufacture methamphetamine. The sentencing sheet, however, lists the primary offense of conviction as the manufacture or attempted manufacture of methamphetamine under K.S.A. 1997 Supp. 65-4159. The box next to the word \\\"attempt\\\" on the sentencing sheet is not marked, however. After carefully reading the judge's comments as well as other documentation in the record, it appears that the district court intended to convict Martens of both attempt and actual manufacture because the court believed both were encompassed within 65-4159.\\nHere, Martens contends that his conviction should be overturned because the district court clearly convicted him of attempt to manufacture, a crime not charged against him in the amended complaint. Martens challenges the subject matter jurisdiction of the district court, arguing that the court had no authority to find him guilty of attempt to manufacture methamphetamine because the complaint was fatally defective, failing to set forth the elements of attempt.\\n\\\"Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. K.S.A. 22-2301. The complaint shall be a plain and concise written statement of the essential facts constituting the crime charged. K.S.A. 22-3201(b). Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1).\\n\\\"The purpose of a complaint or information is to inform the accused of the particular offense or offenses with which the defendant is charged and which the defendant must defend against at time of trial. K.S.A. 21-3107(1) states which crimes may be alleged in a complaint or information by the State and how the offenses must be alleged in the charging instrument.\\\" State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).\\nK.S.A. 21-3107 states:\\n\\\"(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant maybe prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment. \\u2022 -\\n\\\"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.\\\"\\nThe statute does not mandate that each crime be alleged separately, but simply says each may be alleged as a separate count. We have previously stated that even when a statute within the Uniform Controlled Substances Act provides various means of violation, \\\"the better practice is to charge the alternative charges in separate counts.\\\" State v. Anthony, 242 Kan. 493, 497, 749 P.2d 37 (1988).\\nHere, the State failed to mention the statute that covers attempt, K.S.A. 21-3301(a), in the charging document. Attempt was not an offense under the statute cited by the State (K.S.A. 1997 'Supp. 65-4159), although that statute does deal with the sentence for an attempt to manufacture the prohibited substances. Nevertheless, attempt to manufacture a controlled substance is a lesser included crime of the manufacture of a controlled substance. See State v. Peterson, 273 Kan. 217, 223, 42 P.3d 137 (2002). Therefore, Martens could be charged in the complaint with violating 65-4159 and subsequently be convicted of the lesser included crime of attempt to manufacture methamphetamine. K.S.A. 21-3107(2).\\nThe problem here, however, is that the district court seemingly convicted Martens of both attempted manufacture and actual manufacture of methamphetamine contrary to K.S.A. 21-3107(2). We therefore reverse Martens' conviction and remand the matter for a new trial on the issue of whether he was guilty of manufacturing or attempting to manufacture methamphetamine.\\nBy reason of our decision on this issue, die issue of whether sufficient evidence supported the conviction of manufacture of methamphetamine is moot.\\nThe third issue on appeal is whether the district court erred in allowing the late endorsement of Bradley Crowe and Kamala Hinnergardt as witnesses at trial for the State. This court has reexamined Martens' third contention of error concerning the late endorsement of witnesses and finds it to be without merit.\\nAt trial, the State called Crowe, a forensic scientist with the Kansas Bureau of Investigation (KBI). Crowe was sworn in and stated his name and occupation, but counsel for Martens objected on the grounds that the witness had not been endorsed. The State moved to endorse the witness. The court, noting that the complaint listed KBI chemists and that counsel for Martens had been provided with the forensic reports, found there was no surprise or prejudice to Martens. The court overruled the objection and permitted the endorsement of Crowe.\\nFollowing the State's direct examination, counsel for Martens declined to cross-examine Crowe, stating that he was unprepared to cross-examine the witness. The court stated:\\n\\\"This witness has testified as to three well-known tests that are commonly known in our courts, the testing of marijuana. [Counsel for Martens], you have the forensic report, his testimony is limited, straightforward on that issue. Now, you have the opportunity to examine if you wish, that's your choice. Do you care to cross-examine?\\\"\\nOnce again, defense counsel refused.\\nAt the close of the State's direct examination of Hinnergardt, also a forensic scientist with the KBI, counsel for Martens again declined to cross-examine the witness for the same reason. The focus of the testimony of Crowe and Hinnergardt was to identify evidence found by police at Martens' residence as marijuana.\\nThe district court's statutory authority in regard to the endorsement of witnesses is found in K.S.A. 2001 Supp. 22-3201(g) which states, in pertinent part:\\n\\\"(g) Except as otherwise provided, the prosecuting attorney shall endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing it. Except as otherwise provided, the prosecuting attorney may endorse on it the names of other witnesses that may afterward become known to the prosecuting attorney, at times that the court may by rule or otherwise prescribe.\\\"\\nThis court previously construed the language found in the first two sentences of K.S.A. 2001 Supp. 22-3201(g) as conferring \\\"broad discretionary power on the trial court in allowing a late endorsement.\\\" State v. Green, 252 Kan. 548, 553, 847 P.2d 1208 (1993).\\nHere, counsel for Martens had the forensic reports of Crowe and Hinnergardt prior to trial concerning the testing of marijuana and knew or should have known the substance of their testimony before trial. Therefore, the trial court's allowance of the late endorsement of Crowe and Hinnergardt did not result in either surprise or material prejudice to Martens. We hold that the district court did not abuse its discretion by endorsing those two witnesses.\\nOn remand, tire district court must determine whether Martens was guilty of manufacturing or attempting to manufacture methamphetamine in accordance with this opinion. Because we find Martens' third assertion of error on appeal to be without merit, we affirm his other convictions and remand for retrial only as to Count 5 of the complaint.\\nDavis, J., not participating.\\nBrazil, S.J., assigned.\"}"

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+"{\"id\": \"1500287\", \"name\": \"Christine Roberson, Appellant, v. G. Ed Counselman, Appellee\", \"name_abbreviation\": \"Roberson v. Counselman\", \"decision_date\": \"1984-07-13\", \"docket_number\": \"No. 56,325\", \"first_page\": 1006, \"last_page\": \"1021\", \"citations\": \"235 Kan. 1006\", \"volume\": \"235\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T01:01:11.025213+00:00\", \"provenance\": \"CAP\", \"judges\": \"Holmes, J., not participating.\", \"parties\": \"Christine Roberson, Appellant, v. G. Ed Counselman, Appellee.\", \"head_matter\": \"No. 56,325\\nChristine Roberson, Appellant, v. G. Ed Counselman, Appellee.\\n(686 P.2d 149)\\nOpinion filed July 13, 1984.\\nJanet Jo Smith, of Law Offices of Jerry K. Levy, P.A.\\u2019, of Topeka, argued the cause and was on the brief for appellant.\\nThomas E. Wright, of Fisher, Ochs, Heck and Wright, P.A., of Topeka, argued the cause and was on the brief for appellee.\", \"word_count\": \"6807\", \"char_count\": \"41443\", \"text\": \"The opinion of the court was delivered by\\nMcFarland, J.:\\nPlaintiff Christine Roberson, the widow and heir-at-law of Richard C. Roberson, deceased, brings this professional malpractice action against G. Ed Counselman, a chiropractor. Plaintiff contends defendant was professionally negligent in failing to recognize his patient (the deceased) was experiencing symptoms consistent with those of acute heart disease and in failing to refer the patient for appropriate medical treatment. Plaintiff contends this negligence substantially reduced deceased's chance of surviving the heart attack which took his life within hours after he had received chiropractic treatment. The district court held plaintiff had failed to meet her burden of proof to show it was more likely than not defendant's conduct was a substantial factor in the causation of the injury and sustained defendant's pretrial motion for summary judgment. Plaintiff appeals therefrom.\\nThe applicable rules relative to summary judgment were reiterated in McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983), as follows:\\n\\\"Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought.\\\" Syl. \\u00b6 1.\\n\\\"A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist.\\\" Syl. \\u00b6 2.\\n\\\"When a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing that party his day in court.\\\" Syl. \\u00b6 3. (Emphasis supplied.)\\n\\\"When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment.\\\" Syl. \\u00b6 4. (Emphasis supplied.)\\nA summary of the facts, in the light most favorable to the plaintiff, is as follows. Richard C. Roberson was initially seen by defendant Counselman in December 1972. At that time he complained of and was treated for a back sprain. Approximately a week later Mr. Roberson became ill. Plaintiff then contacted defendant and advised him she believed her husband had a heart problem and requested that defendant urge her husband to see a heart specialist. Defendant made arrangements for Mr. Roberson to be seen by Dr. Robert Roeder, a Topeka cardiologist where he was diagnosed as having suffered a heart attack and was hospitalized.\\nUnder Dr. Roeder's supervision, a continuing course of treatment, including medication, was undertaken and Mr. Roberson was ultimately released from the hospital. On January 12, 1973, Mr. Roberson was rehospitalized complaining of chest discomfort. Three years later, in May 1976, Mr. Roberson was again admitted to the hospital with similar complaints. During the 1976 hospitalization Mr. Roberson underwent diagnostic coronary arteriograms to determine the state of his cardiac circulation in relation to his coronary arteries. The tests revealed the right coronary was totally blocked while there was a seventy percent narrowing in the left anterior descending to a forty percent narrowing in the circumflex. Also during the 1976 hospitalization, x-rays of Mr. Roberson's back revealed he had a mild degenerative arthritic change of the lumbar and cervical regions of the spine. All these findings were presented to Mr. Roberson. The last time Dr. Roeder saw Mr. Roberson was on January 24, 1980, where he exhibited stable angina pain.\\nOn July 28, 1980, Mr. Roberson appeared at defendant's office complaining of \\\"pain in the left shoulder area and left side causing hard breathing and chest ache.\\\" Defendant, with knowledge of the decedent's prior heart history, diagnosed Mr. Roberson as suffering from a neuromuscular difficulty and gave two chiropractice adjustments which were described as an anterior move for his upper back and an intersegmental traction. At no time during the July 28th consultation did the defendant advise Mr. Roberson he should consult a medical physician about his heart. Throughout the evening of July 28, Mr. Roberson's condition deteriorated and plaintiff became very concerned about her husband's health. Plaintiff urged her husband to seek immediate medical treatment. In her deposition, plaintiff testified the following exchange occurred between her husband and herself:\\n\\\"A. [Christine Roberson] He said that, 'Dr. Counselman is a regular doctor like any other doctor.' He said, 'And I have told Ed [Counselman] exactly how I feel, I have told him that I had shortness of breath, that my chest hurt, that my shoulder hurt; and he said, \\\"Don't worry about it, Dick, it's not your heart, it's not your heart, it's a ligament what's out but it's pressing on a nerve.\\\" ' And he said, 'Christine, after all, the man knows what he's talking about, he gives me every symptom that I have.' And I threatened to call an ambulance and he said, 'You'll feel pretty foolish when I don't go. After all, Counselman is a doctor, he knows what he's talking about.'\\n\\\"Q. [Mr. Wright, defendant's counsel] And he wouldn't take your advice?\\n\\\"A. He would not.\\n\\\"Q. He wouldn't take your advice and let an ambulance be called?\\n\\\"A. He would not.\\\"\\nPlaintiff and her husband argued over his medical condition. Later in the evening, the following conversation occurred:\\n\\\"A. It ended that we talked to each other again but I was enraged, I told him that he should see Dr. Roeder, I told him, I even told him, I said, 'All right, even if it wouldn't be your heart, for God's sake if you have that much pain, then let's go to a regular doctor, maybe he has to put you in traction if it's really your back.'\\n\\\"Q. What did he say?\\n\\\"A. He said, 'Dr. Counselman said I'm supposed to feel this way.' He said, 'It's my back, I'm seeing him again on Wednesday, why don't you just lay off me..' \\\"\\nA few hours later Mr. Roberson died of a heart attack in his home, without medical attention. He was 51 years of age at the time of his death.\\nPlaintiff presented three expert witnesses whose depositions were taken during discovery. Their testimony, as pertinent to the issue before us, may be summarized as follows:\\n1. Dr. Malcolm W. Haber (chiropractor) stated that Dr. Counselman had a duty to refer a patient with Mr. Roberson's symptoms to a medical specialist and the failure to do so constituted a breach of that duty.\\n2. Dr. Richard Roeder (cardiologist) stated with in-hospital treatment for his heart attack, Mr. Roberson had a nineteen percent chance of dying. Without such treatment the mortality rate is twenty-five percent. Therefore, the failure to receive proper medical treatment cost Mr. Roberson a six percent chance of survival.\\n3. Dr. Lillian Rodriquez-Tocker (cardiologist) stated with proper medical treatment Mr. Roberson had a forty percent chance of survival and that without such treatment his chance of survival was zero percent.\\nThe district court in sustaining defendant's motion for summary judgment reasoned:\\n\\\"A mere possibility of causation is not enough to meet plaintiff s burden of producing evidence; plaintiff must show that it was more likely than not defendant's conduct was a substantial factor in bringing about the harm in order for plaintiff s case to be submitted to the trier of the fact. Prosser, Law of Torts sec 41 (4th ed. 1971); Restatement (Second) of Torts sec. 433B comments a & b (1965).\\n\\\"The expert medical testimony upon which plaintiff relies is not sufficient to meet plaintiffs burden of proof on causation. Dr. Rodriquez-Tocker's testimony that plaintiff s decedent would have had a forty percent chance of survival in the hospital does not show that it is more likely than not the defendant's conduct caused the death of plaintiffs decedent. Likewise, Dr. Roeder's testimony that Mr. Roberson would have had a six percent better chance of survival if he had gone to the hospital is not enough to fulfill plaintiff s burden of proof on causation. The third expert witness, Dr. Haber, declined to state that defendant's failure to refer Mr. Roberson to a cardiologist was the cause of his death.\\n\\\"The court concludes, as a matter of law, that there is insufficient proof contained in the pretrial discovery record that defendant's conduct was a cause in fact of plaintiffs injuries. Accordingly, the evidence is clearly insufficient to submit the issue of causation to the jury with respect to plaintiff s claim against defendant.\\\"\\nThe sole issue on appeal is whether the district court erred in concluding the evidence on causation was insufficient to constitute a submissible jury question.\\nDurflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), contains a general review of the Kansas law relative to medical malpractice. A physician has the duty to exercise reasonable and ordinary care and diligence. The particular decision and acts required of the physician in fulfilling the duty will vary with the circumstances of the patient's situation and the medical specialty of the physician. 234 Kan. at 490. The rules of law pertaining to medical malpractice are applicable to chiropractors. See Hinthorn v. Garrison, 108 Kan. 510, 196 Pac. 439 (1921); Case v. Vearrindy, 339 Mich. 579, 64 N.W.2d 670 (1954). Like physicians (see Annot., Malpractice: Physician's Failure to Advise Patient to Consult Specialist or One Qualified in a Method of Treatment which Physician is not Qualified to Give, 35 A.L.R.3d 349), a chiropractor may be liable for failing to refer a patient to a medical practitioner. Annot., Chiropractor's Liability for Failure to Refer Patient to Medical Practitioner, 58 A.L.R.3d 590; 24 Am. Jur. Proof of Facts, Chiropractic Malpractice \\u00a7 21, p. 467; 61 Am. Jur. 2d, Physicians, Surgeons, Etc. \\u00a7 233; Mostrom v. Pettibon, 25 Wash. App. 158, 607 P.2d 864 (1980); Tschirhart v. Pethtel, 61 Mich. App. 581, 233 N.W.2d 93, appeal denied 395 Mich. 774 (1975); Salazar v. Ehmann, 505 P.2d 387 (Colo. App. 1972), 58 A.L.R.3d 585; Ison v. McFall, 55 Tenn. App. 326, 400 S.W.2d 243 (1964); Ritter v. Sivils, 206 Or. 410, 293 P.2d 211 (1956).\\nIt should be emphasized that the summary judgment herein was not granted on the basis plaintiff s evidence was insufficient to establish the duty owed or the breach thereof. Indeed, the deposition of Dr. Haber was sufficient to establish the duty and the breach thereof for purposes of withstanding a summary judgment motion. Rather, the district court concluded there was insufficient evidence that the alleged breach of Dr. Counsel-man's duty to Mr. Roberson caused the man's death. Therefore, the issue before us relates wholly to causation \\u2014 not whether Dr. Counselman was negligent in his treatment of Mr. Roberson.\\nIn granting the summary judgment herein the district court cited Restatement (Second) of Torts \\u00a7 433B, comments a and b (1965).\\n\\\"a. . . . [I]n civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.\\\"\\nComment b declares:\\n\\\"b. The plaintiff is not, however, required to prove his case beyond a reasonable doubt. He is not required to eliminate entirely all possibility that the defendant's conduct was not a cause. It is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case.\\\" (Emphasis supplied.)\\nComment b concludes by providing a hypothetical drowned child scenario which appears analytically applicable in the instant action.\\n\\\"Thus when a child is drowned in a swimming pool, no one can say with absolute certainty that a lifeguard would have saved him; but the common experience of the community permits the conclusion that the guard would more probably than not have done so, and hence that the absence of the guard has played a substantial part in bringing about the death of the child. Such questions are normally for the jury, and the court may seldom rule on them as matters of law. \\\" (Emphasis supplied.)\\nDean Prosser, also cited by the district court, is consistent with the Restatement (Second) of Torts in holding causation must be established by the so-called \\\"substantial factor\\\" test. Prosser, Law of Torts \\u00a7 41, pp. 240-41 (4th ed. 1971). Prosser is critical of the \\\"but for\\\" test of causation. Prosser, pp. 238-40. Like the Restatement (Second) of Torts, Prosser argues whether the defendant's conduct was a substantial factor in bringing about the plaintiff s injury \\\"is for the jury to determine, unless the issue is so clear that reasonable men' could not differ.\\\" Prosser, p. 240.\\n57 Am. Jur. 2d, Negligence \\u00a7 147, at pp. 503-04, states:\\n\\\"The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. To hold a tortfeasor liable for the injuries which result in the ordinary course of events from his negligence, it is generally sufficient if his negligent conduct was a substantial factor in bringing about the injuries. The word 'substantial' is used in the Restatement, Torts 2d in the sense that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called 'philosophic sense.' It has been held that in using the term 'substantial factor' in a charge to the jury, the substance of the Restatement definition must be explained in terms likely to be understood by laymen in order to avoid any misconception that the negligence referred to must be 'substantial' in degree.\\\" (Emphasis supplied.)\\nAs the preceding passage from Am. Jur. 2d reveals, the Restatement (Second) of Torts discusses and defines \\\"substantial factor\\\" as it relates to causation in negligence actions. Initially, Restatement (Second) of Torts \\u00a7 430 (1965) provides, in order that a negligent actor shall be liable for another's harm, it is necessary not only that the actor's conduct be negligent toward the other, but also the negligence of the actor be the legal cause of the other's harm. Restatement (Second) of Torts \\u00a7 431 (1965) defines \\\"legal cause\\\";\\n\\\"The actor's negligent conduct is a legal cause of harm to another if\\n(a) his conduct is a substantial factor in bringing about the harm, and\\n(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.\\\" (Emphasis supplied.)\\nComment a, following \\u00a7 431, proclaims in order to be a legal cause of another's harm it is not enough the harm would not have occurred had the actor not been negligent \\u2014 a rejection of the \\\"but for\\\" test. Rather, the negligence must also be a substantial factor in bringing about the plaintiff s harm.\\n\\\"The word 'substantial' is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than the so-called 'philosophic sense,' which includes every one of the great number of events without which any happening would not have occurred.\\\" Restatement (Second) of Torts \\u00a7 431, Comment a, p. 429 (1965).\\nIn State Highway Comm. v. Empire Oil & Ref. Co., 141 Kan. 161, 40 P.2d 355 (1935), the court defined legal cause as the invasion of some legally protected interest of another for which the actor is held responsible in law for the harm. Further, \\\"the act or omission must be a substantial factor in bringing about the harm (see \\u00a7 431).\\\" 141 Kan. at 165. (Emphasis supplied.)\\nIn Adams v. Casebolt, 145 Kan. 3, 63 P.2d 927 (1937), at p. 7, this court, relying upon Restatement of Torts \\u00a7 431, comment b (1934), said:\\n\\\" . . [T]he testimony often makes it clear that, if the defendant's conduct had any effect, the effect was substantial. It is only where the evidence permits a reasonable finding that the defendant's conduct had some effect that the question whether the effect was substantial rather than negligible becomes important.' \\\"\\nCole v. Shell Petroleum Corp., 149 Kan. 25, 86 P.2d 740 (1939), at p. 37, saw this court, in relying upon authority, noting \\\"[c]ausation is a matter of fact.\\\"\\nAs is evident from the preceding discussion, causation is easier stated than explained. The legal treatises on causation are voluminous. A few good examples are: Delgado, Beyond Sindell: Relaxation of Cause-In-Fact Rules for Indeterminate Plaintiffs, 70 Calif. L. Rev. 881 (1982); King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L. J. 1353 (1981); Danner & Sagall, Medicolegal Causation: A Source of Professional Misunderstanding, 3 Am. J. L. & Med. 303 (1977); Note, Expert Testimony on Causation in a Wrongful Death Case: Should \\\"Reasonable Medical Certainty\\\"be Necessary to Make a Submissible Case? 36 Mo. L. Rev. 127 (1971); 3 Am. Jur. Proof of Facts, Causation \\u2014 Medical Opinion, p. 161; Annot., Proximate Cause in Malpractice Cases, 13 A.L.R.2d 11.\\nTo iterate, in the case before us, for purposes of withstanding the summary judgment motion, negligence on the part of Dr. Counselman was adequately established. In essence, the district court held that, to establish a submissible jury issue of causation, plaintiff must show that, but for defendant's negligence, deceased would have had a better than even chance of surviving the heart attack. The plaintiff s evidence in its most favorable light showed only a forty percent chance of survival. This, the district court concluded, was insufficient.\\nPlaintiffs claim centers on defendant's negligence having reduced or obliterated her husband's chance of survival. While such action frequently arises within the context of a wrongful death case, the complainant is really seeking redress not for the death but for the deprivation of the chance to survive. Delgado, 70 Calif. L. Rev. at 889. It should be noted that there is no issue before us relative to by what legal capacity the action is brought and such is not germane to the issue to be decided. The case does appear, however, to be the first deprivation-of-the-chance- to-survive action before a Kansas appellate court. This type of action has been before a number of appellate courts in other jurisdictions.\\nIn Hernandez v. Clinica Pasteur, Inc., 293 So. 2d 747 (Fla. Dist. Ct. App. 1974), Mr. Hernandez visited defendant clinic with symptoms which should have resulted in an electrocardiogram being administered, but which was not done.. He was diagnosed as suffering from gastric distress. The patient was told he had no serious health problems and should exercise more. The patient exercised that evening and was dead by morning from a myocardial infarction. At trial a cardiologist testified Mr. Hernandez would \\\"probably and possibly\\\" have had a better chance of survival if he had received proper treatment at the defendant clinic. A directed verdict was entered for defendants at trial. The Florida Appellate Court reversed the directed verdict holding:\\n\\\" 'Proximate cause is not a question of science or legal knowledge \\u2014 it is a fact to be determined in consideration of all the circumstances. It is only when the facts are susceptible of only one inference that the question is one of law for the court. Otherwise it should be submitted to the jury.' \\\" 293 So. 2d at 750.\\nContinuing:\\n\\\"It further appears that once the malpractice was established, the question of causation for the decedent's demise within hours of the malpractice was one which was properly submitted to the jury.\\\" 293 So. 2d at 750. (Emphasis supplied.)\\nConcluding:\\n\\\"In the case now before us, there was evidence that appellant's decedent was at all times suffering from the condition which ultimately caused his death. The issue of proximate cause was as to whether appellees' malpractice contributed to the cause of death. In this connection, the testimony that appellant's decedent would have had a better chance to survive if he had received prompt medical attention was sufficient to form a basis for the submission of the issue to the jury.\\\" 293 So. 2d at 750. (Emphasis supplied.)\\nHernandez arose in the District Court of Appeal of Florida, Third District.\\nA different result was reached in the First District of the same appellate court. In University Hosp. Bldg., Inc. v. Gooding, 419 So. 2d 1111 (Fla. Dist. Ct. App. 1982), the patient had a condition when brought to the hospital which, with proper medical treatment, he had a fifty percent chance to survive. The treatment was not given and the patient died. A verdict was rendered against the hospital. In reversing, the appellate court said:\\n\\\"Causation in fact is proved by evidence that more likely than not defendant's negligence caused the injury. This same burden of proof applies regardless of whether the 'but for' or the 'substantial factor' test is used. The rule is stated by Prosser as follows:\\n\\\" 'On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.' (emphasis added)\\n\\\"The testimony of plaintiff s expert, the strongest evidence presented on plaintiff s behalf, establishes that decedent's chances of survival, given all optimum conditions and prompt efficient action, [were] at best evenly balanced and less than probable. On this state of the proof, the case should not have been submitted to the jury.\\\" 419 So. 2d at 1113-14.\\nPerhaps the most liberal view is expressed in Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), which involves Virginia law. In Hicks a diabetic patient was taken to a navy hospital with intense abdominal pain and vomiting. Proper testing would have revealed a high obstruction. Instead the patient was diagnosed as having a minor problem and sent home, where she died. There was expert testimony the patient would have survived if- given proper treatment. The district court dismissed the action. In reversing the district court the Court of Appeals stated:\\n\\\"When a defendant's negligent action or inaction has effectively terminated a-person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942).\\\" 368 F.2d at 632. (Emphasis supplied.)\\nHicks has been followed by the Maryland Court of Appeals (Maryland's highest court) in Thomas v. Corso, 265 Md. 84, 101-02, 288 A.2d 379 (1972).\\nIn Kallenberg v. Beth Israel Hosp., 45 App. Div. 2d 177, 357 N.Y.S.2d 508 (1974), aff'd 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128 (1975), the decedent was admitted to the Beth Israel Hospital for surgery. The decedent had a cerebral aneurysm. Upon admission her physician ordered she receive a specific medication to reduce her blood pressure. It was critical her blood pressure be reduced as a condition for performing surgery. The decedent never received the medication. Her blood pressure remained high and, consequently, surgery could not be performed. Ultimately the patient died when the cerebral aneurysm hemorrhaged. The evidence revealed the decedent did not reach the point where nothing could be done for her until six days after admission. Expert testimony established had the decedent been promptly, properly, energetically and adequately treated, she would have had at least a twenty percent survival chance, but no more than forty percent. 45 App. Div. 2d at 179. If the decedent had received medication, but had not undergone surgery, she would have had a two percent chance of survival. 45 App. Div. 2d at 180. Even with this less than evenly balanced survival chance, the New York appellate court, in affirming a jury verdict for the plaintiffs, said:\\n\\\"The question of proximate cause is a jury question, and a jury alone may weigh conflicting evidence and determine the credibility of witnesses and the weight to be accorded expert testimony.\\\" 45 App. Div. 2d at 180. (Emphasis supplied.)\\nIn Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981), plaintiff alleged the misdiagnoses and delay in treating her for breast cancer resulted in her life being impaired and shortened, and caused financial loss. The trial court, in charging the jury on causation, said proximate cause is that cause which in direct and continuous sequence uninterrupted by any intervening cause produces the result and without which it would not occur. 494 Pa. at 415. The jury returned a verdict in favor of the defendants. On appeal the Pennsylvania Supreme Court reversed, holding the lower court had erred in charging the jury on causation.\\n\\\"Proximate cause is a term of art, and may be established by evidence that a defendant's negligent act or failure to act was a substantial factor in bringing about the harm inflicted upon a plaintiff. Pennsylvania law has long recognized that this substantial factor need not be, as the trial court incorrectly charged, the only factor, i.e., 'that cause which . . . produces the result.' Gradel v. Inouye, 491 Pa. 534, 542, 421 A.2d 674, 678 (1980); Hamil v. Bashline, 481 Pa. at 266, 392 A.2d at 285; Majors v. Brodhead Hotel, 416 Pa. 265, 273, 205 A.2d 873, 878 (1965). A plaintiff need not exclude every possible explanation, and 'the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve defendant from liability unless he can show that such other cause would have produced the injury independently of his negligence.' Majors v. Brodhead Hotel, 416 Pa. at 273, 205 A.2d at 878.\\\" 494 Pa. at 416.\\nIn Jones the Pennsylvania court applied liability under Restatement (Second) of Torts \\u00a7 323 (1965), which provides:\\n\\\"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if\\n(a) his failure to exercise such care increases the risk of such harm, or\\n(b) the harm is suffered because of the other's reliance upon the undertaking.\\\" (Emphasis supplied.)\\nThe Pennsylvania court specifically relied upon subsection (a). According to the Pennsylvania court, once a plaintiff demonstrated defendant's acts or omissions, in a situation to which \\u00a7 323(a) applied, increased the risk of harm to another, such evidence would furnish a basis for a factfinder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm. To the Jones court the necessary proximate cause would have been made out if the jury saw fit to find causation in fact. According to the Pennsylvania court, \\\". . . medical opinion need only demonstrate, with a reasonable degree of medical certainty, that a defendant's conduct increased the risk of the harm actually sustained, and the jury then must decide whether that conduct was a substantial factor in bringing about the harm.\\\" 494 Pa. at 417. Recently, in Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 490, 657 P.2d 532 (1983), this Court adopted Restatement (Second) of Torts \\u00a7 323 (1965).\\nClark v. United States, 402 F.2d 950 (4th Cir. 1968), applying Virginia law, involved allegations the physicians had been negligent in delaying use of proper and standard diagnostic procedures to identify the patient's illness and the delay was the cause of the loss of a kidney. The trial court entered judgment for plaintiff and the United States Government appealed, contending lack of causation. The Fourth Circuit Court of Appeals, in affirming the lower court, commented:\\n\\\"The district judge, it is true, said, that no expert could testify 'with any probable degree of certainty' that earlier action would have saved Mrs. Clark's kidney, but we know of no court that requires a plaintiff to prove causation to a certainty or even to 'negative entirely the possibility that the defendant's conduct was not a cause.' Prosser, Torts \\u00a7 41 at 246 (3d ed. 1964). It appears to be settled in Virginia that the question of causation is for the jury with only the admonition that 'if the proof leaves it equally probable that a bad result may have been due to a cause for which the defendant was not responsible as to a cause for which he was responsible the plaintiff cannot recover.' Reed v. Church, 175 Va. 284, 8 S.E.2d 285, 288 (1940). The district court found in the instant case an 'indicated probability that an earlier operation to repair the ureter may have saved the kidney.' We think such a finding is clearly adequate under the law of Virginia.\\\" 402 F.2d at 953-54. (Emphasis supplied.)\\nPerhaps the most rigid position is expressed in Cooper v. Sisters, 27 Ohio St.2d 242, 56 Ohio Op.2d 146, 272 N.E.2d 97 (1971). In Cooper, plaintiffs minor son was involved in a bicycle-truck collision. Improper emergency room procedures failed to disclose a major head injury. The child was released and died the following morning. One expert testified death had been almost certain without proper treatment but declined to speculate on the percentage of chance of survival with proper treatment. Another expert placed survival chances with proper treatment \\\"around\\\" fifty percent. The trial court entered judgment for the defendants. In affirming, the Ohio Supreme Court stated:\\n\\\"A rule, which would permit a plaintiff to establish a jury question on the issue of proximate cause upon a showing of a 'substantial possibility' of survival, in our judgment, suffers the same infirmity as a rule which would permit proof of a 'chance of recovery' to be sufficient. While the substantial possibility concept appears to connote a weightier burden than the chance of recovery idea, both derogate well-established and valuable proximate cause considerations. Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause.\\n\\\"Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an injured person should be compensated for the loss of any chance for survival, regardless of its remoteness. However, we have trepidations that such a rule would be so loose that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based upon proof of causation by evidence not meeting the standard of probability, we are not persuaded by their logic. See Craig v. Chambers, supra (17 Ohio St. 25[3] [1867]); Hicks v. United States, supra (368 F.2d 626 [4th Cir. 1966]); Neal v. Walker (1968), 426 S.W.2d 476; Rogers v. Kee (1912), 171 Mich. 551, 137 N.W. 260, quoting from Craig v. Chambers, supra; Burk v. Foster, (1902), 114 Ky. 20, 69 S.W. 1096. The following authorities appear to require the establishment of proximate cause by evidence of probability: Harvey v. Silber (1942), 300 Mich. 510, 2 N.W.2d 483; Schuler v. Berger (1967), 275 F. Supp. 120; Walden v. Jones (Ky. 1969), 439 S.W.2d 571 (distinguishing Neal v. Walker, supra); Connellan v. Coffey (1936), 122 Conn. 136, 187 A. 901.\\n\\\"We consider the better rule to be that in order to comport with the standard of proof of proximate cause, plaintiff in a malpractice case must prove that defendant's negligence, in probability, proximately caused the death.\\\" 27 Ohio St. 2d at 251-52. (Emphasis supplied.)\\nIn Daniels v. Hadley Memorial Hospital, 566 F.2d 749 (D.C. Cir. 1977), a Mr. Horace Miller went to a hospital emergency-room for treatment for abrasions he received following a fall from his bicycle. During treatment Mr. Miller received a penicillin shot and fifteen to twenty minutes later was allowed to leave. About ten minutes after being discharged, he was found in the hospital parking lot suffering from an anaphylactic reaction to the penicillin. Thirty-four minutes after he had been rushed back into the emergency room, Mr. Miller was dead. In a wrongful death action against the hospital the plaintiff alleged when the hospital staff was treating the decedent for the anaphylactic reaction it had a duty to provide both oxygen and adrenalin as quickly as possible (for proper ventilation) and the staff s failure to do so effectively eliminated whatever chance Mr. Miller had of surviving. 566 F.2d at 753. Plaintiff s expert testimony established while Mr. Miller had been in a grave condition when he was rushed back into the emergency room, he still had a significant chance of recovery if properly treated. His condition was capable of being medically corrected. Death was possible, but not inevitable. According to one expert there was an appreciable chance of survival in anaphylactic reaction to penicillin cases although fifteen to twenty-five percent of the victims ultimately die. As each moment passed the chances of survival diminished. The plaintiff s expert witness testified the hospital staff s failure to supply proper ventilation \\\"significantly diminished\\\" Mr. Miller's chances of survival. 566 F.2d at 758. The trial court found the hospital staff had been negligent in its emergency treatment of the decedent, but such treatment had not been the proximate cause of his death. 566 F.2d at 751. The plaintiff appealed and the United States Court of Appeals, District of Columbia Circuit, reversed and remanded the case.\\nIn reversing the lower court the federal appellate court wrote:\\n\\\"In determining that there was no causal connection between inadequate ventilation and Mr. Miller's death, the District Court applied the 'substantial factor' test. This is the appropriate test for causation in cases, such as this, where the harm appears to have been brought about by two or more concurrent causes. Under this test, the plaintiff must show that the defendant's deviation from the standard of care was a 'substantial factor' in bringing about the harm complained of. This test has been applied in circumstances similar to those presented here, involving the medical mismanagement of a patient's already potentially fatal condition. In Hicks v. United States the court dismissed defendant's contention that proximate causation had not been shown because, although the negligent diagnosis had prevented the application of proper therapy, '. . . even if surgery had been performed immediately, it is mere speculation to say that it would have been successful':\\n\\\" '. . . [I]t does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass.'\\nThe Hicks decision, and the cases which have followed it, illustrate that there are at least two important factors relevant to the issue of causation in cases involving negligent treatment of a potentially fatal condition: first, the patient's chances of survival if properly treated according to medical procedures generally recognized as appropriate under the circumstances; and second, the extent to which the patient's chances have been reduced by improper departure from these established procedures. We are not suggesting, as some courts have, that these two factors can be reduced to precise verbal formulae, supplanting the 'substantial factor' test. We do not think it is either possible or desirable to reduce the 'substantial factor' test to lower and more concrete terms in this way. We do believe, however, that in considering the question of causation in a case such as this, the finder of fact must at least take into account both the patient's chances of survival and the extent to which defendant has interfered with these chances. \\\" 566 F.2d at 757-58. (Emphasis supplied.)\\nThe question of causation in cases involving negligent treatment of a potentially fatal condition (including failure to refer the patient to an appropriate specialist) is generally a matter to be determined by the finder of fact where the evidence has established the patient had an appreciable chance to survive if given proper treatment. In making the determination, the finder of fact should take into account both the patient's chances of survival if properly treated and the extent to which the patient's chances of survival have been reduced by the claimed negligence.\\nIn the case before us one of plaintiffs experts testified the failure to obtain proper treatment increased Mr. Roberson's chances of dying from the heart attack from nineteen percent mortality rate to twenty-five percent mortality rate (an increase of over thirty percent). The other expert testified the patient had a forty percent chance of surviving with treatment and zero percent chance without treatment. In addition to the failure to refer aspect of this case, we have the added factor of assuring the patient his heart was not causing his suffering and that his pain was to be expected from the muscular problem. We believe under the totality of the circumstances herein, the district court's entry of summary judgment in favor of defendant predicated upon insufficient evidence of causation was erroneous, and, in so doing, the district court usurped the function of the jury as the finder of fact. Whether the negligence of defendant was a substantial factor in Mr. Roberson's death is a matter for determination by a jury upon due consideration of all related factors.\\nWe conclude that under the totality of the circumstances sufficient evidence was before the district court to have precluded summary judgment being granted on causation.\\nThere are sound reasons of public policy involved in reaching this result. The reasoning of the district court herein (which is similar to the extreme position taken in Cooper v. Sisters, 27 Ohio St.2d 242), in essence, declares open season on critically ill or injured persons as care providers would be free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment. Under such rationale a segment of society often least able to exercise independent judgment would be at the mercy of those professionals on whom it must rely for life-saving health care.\\nThe judgment is reversed and the case is remanded for trial.\\nHolmes, J., not participating.\\nSchroeder, C.J., dissenting.\"}"

kan/1887592.json

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+"{\"id\": \"1887592\", \"name\": \"The City of Perry, Plaintiff, v. W. E. Davis, as State Auditor, etc., Defendant\", \"name_abbreviation\": \"City of Perry v. Davis\", \"decision_date\": \"1916-02-12\", \"docket_number\": \"No. 20,538\", \"first_page\": 369, \"last_page\": \"370\", \"citations\": \"97 Kan. 369\", \"volume\": \"97\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:58:21.025359+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The City of Perry, Plaintiff, v. W. E. Davis, as State Auditor, etc., Defendant.\", \"head_matter\": \"No. 20,538.\\nThe City of Perry, Plaintiff, v. W. E. Davis, as State Auditor, etc., Defendant.\\nSYLLABUS BY THE COURT.\\nCity Bonds \\u2014 Defective Notice of City Election \\u2014 Not Fatal to Validity of Bonds. Under a statute requiring a notice of an election, to vote on a proposal to issue city bonds, to be signed by the mayor and city clerk, and published, the mere fact that the publication through inadvertence omits the signature of the mayor is not sufficient to invalidate the election or bonds issued thereunder, where an ordinance calling the election covered all the details required to be stated in the notice, and those who voted for the bonds constituted a majority of - all the qualified electors of the city.\\nOriginal proceedings in mandamus.\\nOpinion filed February 12, 1916.\\nWrit allowed.\\nGeorge P. Hayden, and R. F. Hayden, both of Topeka, for the plaintiff.\\nS. M. Brewster, attorney-general, for the defendant.\", \"word_count\": \"749\", \"char_count\": \"4320\", \"text\": \"The opinion of the court was delivered by\\nMason, J.:\\nThe city of Perry executed bonds for the enlargement of a municipal electric-light plant, which it- presented to the state auditor for registration. The auditor refused to register them by reason of a doubt concerning their validity. To determine the question the city brings mandamus to require their registration. The facts are agreed to, and the case turns upon the sufficiency of the published notice of the holding of the election to vote upon the question of issuing the bonds, the proceedings in all other respects being entirely regular.\\nThe statute requires such a notice to be signed by the mayor and city clerk, and to be published in a newspaper for three weeks. (Gen. Stat. 1909, \\u00a7 745.) Here a notice in proper form was prepared, signed by both the officers named, and given to the printer for publication. But through inadvertence it was published with only the signature of the clerk atti filed, that of the mayor being omitted. In this respect only was there any failure to comply strictly with the requirements of the statute. The matter that was published gave to the electors of the city all the information concerning the election that would have been afforded if the law had been followed with literal exactness. The signature of the mayor could have added nothing to its force except by way of attesting its authenticity, and that was doubtless shown sufficiently for all practical purposes by the city clerk's signature. It is possible that some well-informed elector, who knew the law required both names to be printed, might have discredited the notice by reason of its not appearing to have been signed by the mayor. That remote possibility is offset by two considerations which were mentioned in Chanute v. Davis, 85 Kan. 188, 116 Pac. 367, as worthy of consideration in determining the consequences of a defective notice. Here an ordinance had been passed calling the election, and fixing the time and place of holding it, which covered the details required to be stated in the notice. As suggested in the case cited, the ordinance may perhaps be given the force of a public law, rendering applicable the rule that a failure to give the required notice does not invalidate an election if the time and manner of holding it are fixed by statute. Moreover, it is shown that those who voted for the bonds constituted not only a majority of those participating in the election, but a majority of all who were entitled to vote thereat. The notice was not the means by which the election was called \\u2014 its purpose was merely to give additional publicity to what had already been determined and announced. And if all the electors who remained away from the polls had appeared and voted against the bonds the result of the election would not have been changed. In view of all the circumstances we think it clear that the irregularity in the form of the published notice was not so serious as to affect the validity of the bonds. This conclusion is well within the accepted rules. (See 10 A. & E. Encycl. of L. 630; Note, 18 Ann. Cas. 1141; 1 Dillon on Municipal Corporations, 5th ed., \\u00a7 374; Backus v. City, 123 Minn. 48, 142 N. W. 1042; Briggs v. Raleigh, 166 N. Car. 149, 81 S. E. 1084; State, ex rel. Mullen, v. Doherty, 16 Wash. 382, 47 Pac. 598; Smith v. Board County Comr's Skagit County, 45 Fed. 725.)\\nThe writ is allowed.\"}"

kan/1890029.json

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+"{\"id\": \"1890029\", \"name\": \"Omer D. Smith, Trustee of the Estate of Charles D. Eby, Bankrupt, Substituted for Henry P. Hilliard, Receiver of The American National Bank of Fort Smith, Ark., Appellant, v. C. D. Eby et al., Appellees\", \"name_abbreviation\": \"Smith v. Eby\", \"decision_date\": \"1919-02-08\", \"docket_number\": \"No. 21,758\", \"first_page\": 178, \"last_page\": \"181\", \"citations\": \"104 Kan. 178\", \"volume\": \"104\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:00:57.762340+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Omer D. Smith, Trustee of the Estate of Charles D. Eby, Bankrupt, Substituted for Henry P. Hilliard, Receiver of The American National Bank of Fort Smith, Ark., Appellant, v. C. D. Eby et al., Appellees.\", \"head_matter\": \"No. 21,758.\\nOmer D. Smith, Trustee of the Estate of Charles D. Eby, Bankrupt, Substituted for Henry P. Hilliard, Receiver of The American National Bank of Fort Smith, Ark., Appellant, v. C. D. Eby et al., Appellees.\\nSYLLABUS BY THE COURT\\n1. Attachment \\u2014 Ownership of Attached Property \\u2014 Evidence. The decision of the trial court that the ownership of attached property was in the intervener, and not in the attachment debtor, is held to be sustained by sufficient evidence.\\n2. Same \\u2014 Right of Intervener to Give Forthcoming Bond. The giving of a bond by the intervener for its own benefit, conditioned that the attached property or its appraised value in money shall be forth coming to answer the judgment of the court, did not estop it from demanding an adjudication of the ownership of the attached property.\\nAppeal from Osborne district court; Richard M. Pickler, judge.\\nOpinion filed February 8, 1919.\\nAffirmed.\\nN. J. Ward, of Belleville, for the appellant.\\nR. M. Anderson, of Beloit, for the Appellees.\", \"word_count\": \"1082\", \"char_count\": \"6062\", \"text\": \"The opinion of the court was delivered by\\nJohnston, C. J.:\\nThis was an attachment proceeding, in which certain equipment intended for use in the construction of railroads, including horses and mules, was seized. The plaintiff insisted that it was the property of C. D. Eby, a debtor of plaintiff, while the defendants claimed it to be the property of the'Eby Construction Company, and not subject to attachment for the debts of C. D. Eby. The ownership of the property was the principal question submitted to the trial court, which found that the Eby Construction Company was the owner, and the decision of this appeal depends upon whether there is evidence to sustain the finding and judgment of that court.\\nIt appears that C. D. Eby borrowed money from the plaintiff bank in 1903, which was used in a mining enterprise, and the note then given was renewed from time to time and payments were made thereon. C. D. Eby denies liability on the notes, but that question is not in issue here. Tn 1904 and 1905, C. D. Eby was engaged in railroad work in partnership with the Stockers, the father and brother of his wife; This partnership was dissolved, and later, in 1909, C. D. Eby was solicited by his brother S. G. Eby to join him in some railroad construction and in the purchase of a grading outfit which was for sale. C. D. Eby undertook to raise the money for this purpose, and there is testimony which indicates that he failed in the attempt, and that his wife, Mrs. A. M. Eby, procured the money and went into the enterprise with S. G. Eby, under the firm name of Eby Brothers. None of the money for the project was furnished by the plaintiff bank, and it had no connection with the business of the firm or of the construction company. This business was conducted by the Ebys until 1912, when the Eby Construction Company was organized. Mrs. A. M. Eby took about one-half of the stock, and S. G. Eby most of the remainder. This company contracted to build a section of the Salina Northern Railroad, and while engaged in that enterprise Mrs. Eby purchased the stock of S. G. Eby, and he retired from the company. Later the attachment in question was levied on the grading outfit as the property, of C. D. Eby.\\nThe contention is that while Mrs. A. M. Eby procured money and invested it in the business of the firm and the corporation, it was obtained and furnished for her husband, and that all the time he was the owner, and managed and: carried on the business as owner, and not as agent for his wife. Much testimony was taken, and some of it tends to support the theory and contention of the plaintiff, but there is a great deal of testimony that tends to uphold the claim of the defendant and the finding.of the trial court. It goes to show that in 1909, when the business was started, she put in $1,500 of money which she borrowed on collateral owned by her; that later she put in $2,000 obtained from the sale of her property; and that at another time, when there was need of more money in the enterprise, she borrowed $1,500 from a brother and invested it in the business. At one time she got from her father, who was a man of considerable wealth, $975, which went into the business. It is claimed that C. D. Eby was obligated in part for some of the money borrowed by her, and further that some of the earnings of the business was used to pay these obligations. A great volume of testimony has been produced on the question of ownership, and much of it is very conflicting in character. It is not practical, and indeed would not be useful, to recite it at length in an opinion. Careful consideration has been given to it, and we have concluded that it is sufficient to support the finding of the court that the attached property was owned by the Eby Construction Company, and that C. D. Eby had no interest in it.\\nThere is a further claim that the defendant company is estopped by the action of the company in giving a bond conditioned that the property attached or its appraised value in money shall be forthcoming to answer the judgment which the court may render. The construction company, as we have seen, intervened- in the case brought against the attachment .debtor, claiming to be the owner of the property. When it was attached, Mrs. A. M. Eby, the president of the company, notified the sheriff that C. D. Eby had no interest in the property, and that it belonged to the company. Insisting on ownership, the bond was given so as to hold the property and avoid unnecessary expense of maintenance until the question of ownership was adjudicated. It was not given in behalf of the attachment debtor, but for its own benefit and as a substitute for the property which the sheriff had seized. Under these circumstances, the giving of the bond did not mislead the creditor, nor did it estop the company from demanding an adjudication of the ownership of the property. (Commission Co. v. Tate, 91 Kan. 538, 138 Pac. 602; Commission Co. v. Hicks, 92 Kan. 922, 142 Pac. 276.)\\nFinding no material error in the record, the judgment is aifirmed.\"}"

kan/1892078.json

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+"{\"id\": \"1892078\", \"name\": \"J. D. Bradley (revived in the name of his heirs, Appellants), v. Betty Burgess et al., Appellees\", \"name_abbreviation\": \"Bradley v. Burgess\", \"decision_date\": \"1921-06-11\", \"docket_number\": \"No. 23,257\", \"first_page\": 347, \"last_page\": \"351\", \"citations\": \"109 Kan. 347\", \"volume\": \"109\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:19:18.766650+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. D. Bradley (revived in the name of his heirs, Appellants), v. Betty Burgess et al., Appellees.\", \"head_matter\": \"No. 23,257.\\nJ. D. Bradley (revived in the name of his heirs, Appellants), v. Betty Burgess et al., Appellees.\\nSYLLABUS BY THE COURT.\\n1. Postnuptial Contract \\u2014 Contract Valid\\u2022 \\u2014 No Violation of Public Policy. A contract by an old and infirm couple, husband and wife, for the division of their property, in which they agreed to separate because they could no longer continue to live together in comfort by reason of their infirmities and circumstances, and in which it was agreed- that the husband, who was ill, should go to the home of a son by a former marriage, where he would receive proper attention, and the wife be relieved of the burden of attempting to look after him, is held under all the circumstances; a valid contract, and not open to the objection that it violates public policy.\\n2. Same \\u2014 Party Having Accepted Benefits of Agreement May Not Set It Aside. Where in such a case, shortly after the separation, the wife dies leaving a will devising her property to her own relatives, held, the fact that the husband has accepted the benefits of the agreement, which was fairly entered into and was fully executed, precluded him from setting it aside or from recovering property disposed of under its provisions, and that persons claiming under him occupy no better position.\\nAppeal from Cowley district court; Oliver P. Fuller, judge.\\nOpinion filed June 11, 1921.\\nAffirmed.\\nAlbert Faulconer, and Kirke W. Dale, both of Arkansas City, for the appellants.\\nC. T. Atkinson, and Tom Pringle, both of Arkansas City, for the appellees.\", \"word_count\": \"1945\", \"char_count\": \"11323\", \"text\": \"The opinion of the court was delivered by\\nPorter, J.:\\nJames and Sarah Bradley were husband and wife and resided at Arkansas City. The wife owned two residence lots in Arkansas City, two pieces of city property in Missouri, and some household goods. The husband was the owner of a small parcel of land in' Reynolds county, Missouri. They entered into a written agreement for the division of their property, each party thereafter to separately own, use and dispose of his or her property as though the marriage relation had never existed. The reasons for making the agreement were stated in a preamble as follows:\\n\\\"Witnesseth, that whereas, said parties are husband and wife and are both aged and infirm and in ill health and unable to properly care for each other and it being deemed advisable for said husband to go to the home of a son by a former marriage, there to make his home and have care and att\\u00e9ntion necessary, and said wife feeling that she being unable to be of assistance in taking care of said husband and be of care and expense to said son,.it is hereby agreed by and between said husband and wife that said husband may go to the home of said son for the purposes and reasons above set forth, said wife to remain where she elects.\\n\\\"Now therefore, it is agreed by and between the parties hereto that it shall be lawful for said parties to live apart as above stated, free from the marital control of each other, the same as if unmarried, and without any interference on the part of each party hereto.\\\"\\nThere was a provision by which the wife agreed to accept in full of all demands for her support the sum of five dollars per month for the period of fourteen months, payable quarterly, at the time her husband's pension was due. Shortly after the execution of the contract and the separation of the parties the wife, while visiting in Missouri, died leaving a will which devised all her property to the appellees. Claiming that as the surviving husband he was entitled under the law to an undivided one-half of the real estate, James Bradley brought this action to partition the property in Cowley county. He died while the action was pending and it was revived in the name of his heirs. The devisees under the will of Mrs. Bradley filed an answer setting up the written contract, and.alleging that the husband had no interest in the real estate, and that his heirs acquired none. A demurrer to the answer was overruled and the heirs of James Bradley appeal.\\nThe appellants' contention is that the contract is void because it is contrary to public policy. It is argued that inasmuch as an absolute divorce will not be granted upon the consent or agreement of the parties, there is equally as strong a reason for holding that the agreement in question which, it is insisted is equivalent to a limited divorce, should not be recognized, and further, that the contract is void because there is an entire lack of such consideration as will be recognized by the courts. The argument is based upon the proposition that a husband and wife cannot be permitted to live in a state of separation unless there is some failure on the part of one or both in the performance of duties, in the fulfillment of which, it is said, society has an interest. The appellants concede that postnuptial contracts are valid where they do not contravene public policy but insist that in previous decisions the court has laid down the rule that agreements for the division of property based upon separation between husband and wife can only be upheld when the relations between the parties are such as to make a separation inevitable, because the conduct of one is such as to render separation necessary for the health and happiness of the other. The principal case cited in support of this contention is King v. Mollohan, 61 Kan. 683, 60 Pac. 731, which, it is said in appellants' brief, is the very foundation of their claim.\\nIn that case a contract for the division of property was made in contemplation of an immediate separation and with an unexpressed purpose that a divorce should at once be obtained. But even in that situation it was held that because the separation was simultaneous with the execution of the contract the latter was not to be regarded as intended to break the marriage relations at some future time. The appellants, however, stress a statement in the opinion to the effect that:\\n\\\"An understanding that the separation, which was inevitable, and immediate and legal in itself, should thereafter receive the sanction of the court and effect a dissolution of the marriage relation, cannot be regarded as collusive or fraudulent or violative of public policy.\\\" (p. 690.)\\nBut in using this-language the court spoke with reference to the facts of the particular case, and was not attempting to lay down a hard and fast rule applicable to all such contracts, nor to limit or define the circumstances or conditions which might be sufficient to render valid a contract of this character between husband and wife.\\nThe appellants' argument is based upon the narrowest construction possible to be given to the word \\\"inevitable\\\" as used in the opinion in the Mollohan case. The word is often employed in the sense of absolute certainty or of something as sure to happen as death. On the other hand, it is often used in a different sense. Soule's Dictionary of English Synonyms gives as synonymous words, \\\"unavoidable, necessary, not to be escaped, that must be suffered.\\\"\\nIn the celebrated case of McCullough v. State of Maryland, 17 U. S. 316, counsel for the state insisted upon placing upon the word \\\"necessary\\\" a narrow construction as it appears in the provision of the Federal constitution that congress shall have power \\\"to make all laws which shall be necessary and proper to carry into execution\\\" the powers of the government. The contention was that the word \\\"necessary\\\" should be construed as limiting the right of congress to pass laws for carrying into effect the granted powers, to such as are indispensable, and without which the power of congress would be nugatory. In answering this contention, Chief Justice John Marshall said:\\n\\\"Is it true, that this is the sense in which the word 'necessary' is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the' character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. . . . It is essential to just construction, that many words.which import something excessive, should be understood in a more mitigated sense \\u2014 in that sense which common usage justifies. The word 'necessary' is of this description. It has not a fixed character peculiar to itself. It admits of all degree's of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases.\\\" (pp. 412, 413.)\\nSo in the Mollohan case the court in speaking of the separation of the husband and wife being inevitable did not use the word \\\"inevitable\\\" as something bound to happen at all events, but as highly probable. Of course, it is always possible, even in extreme cases, that disagreements and quarrels between husband and wife will be adjusted; and the court spoke of the separation as inevitable \\u2014 not in the sense of being absolutely sure to happen, but in the sense that, from all the circumstances, the parties understood that a separation was bound to occur.\\nThe contract' between James Bradley and his wife rests upon sufficient consideration, and we are unable to discover that it contains any provisions contrary to public policy. Here were two old infirm persons, husband and wife, each of whom had been married before. They realized that they could no longer continue to live together in comfort, not because of domestic strife, but because of their infirmities and circumstances. In order that the husband in his sickness might have proper attention they deemed it best to separate, the husband going to the home of his son where his wants would be cared for, and the wife would be thereby relieved of the -burden of attempting to look after him. The husband possessed some property to which the wife was willing to forego her interest, in consideration of the right to retain for her sole use her own property. Under all the circumstances we think the contract was one which courts should not hesitate to uphold.\\nBut for another reason the appellants cannot maintain their action for partition. It was said in King v. Mollohan, supra, upon which appellants place so much reliance:\\n\\\"In our view, the separation agreement does not violate public policy; but if for some reason it did, the fact that the husband had accepted the benefits of an agreement which fairly and equitably divided the property, and which was fully executed, would preclude him from setting it aside or recovering property disposed of under its provisions.\\\" (p. 694.)\\nThe appellants, who claim under James Bradley, occupy no better position. The judgment is affirmed.\"}"

kan/1894243.json

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+"{\"id\": \"1894243\", \"name\": \"F. B. Hazelwood, Appellee, v. P. H. Suiter et al. (Geo. W. Jenkins, Appellant.)\", \"name_abbreviation\": \"Hazelwood v. Suiter\", \"decision_date\": \"1922-04-08\", \"docket_number\": \"No. 23,430\", \"first_page\": 10, \"last_page\": \"15\", \"citations\": \"111 Kan. 10\", \"volume\": \"111\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:39:08.483799+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"F. B. Hazelwood, Appellee, v. P. H. Suiter et al. (Geo. W. Jenkins, Appellant.)\", \"head_matter\": \"No. 23,430.\\nF. B. Hazelwood, Appellee, v. P. H. Suiter et al. (Geo. W. Jenkins, Appellant.)\\nsyllabus by the court.\\n1. Execution Sale \\u2014 Defective Notice of Sale \\u2014 Purchaser Chargeable with Notice of Defect \\u2014 Conversion. A husband who clerked for his wife in her store brought an action in her name, or managed one thus brought, and a judgment was recovered and certain grain levied on. Instead of the required ten days\\u2019 notice only nine days\\u2019 notice was given before the sale, at which the husband bought the property. In an action by him for conversion against the landlord on whose farm the grain was raised the defendant was prevented from attacking the validity of the sale, on the ground that the plaintiff was an innocent purchaser. Held, error.\\n2. Conversion \\u2014 Measure of Damages \\u2014 Instructions. In an action in conversion involving a crop of growing grain the jury should be given the measure of damages and evidence should be required as to the cost of putting such crop in shape for market.\\nAppeal from Gove district court; Isaac T. Purcell, judge.\\nOpinion filed April 8, 1922.\\nReversed.\\n/. H. Jenson, of Gove, Lee Monroe, Guy L. Hursh, and C. M. Monroe, all of Topeka, for the appellant.\\nB. H. Thompson, of Gove, for the appellee.\", \"word_count\": \"2262\", \"char_count\": \"12632\", \"text\": \"The opinion of the court was delivered by\\nWest, J.:\\nThe'plaintiff, F. B. Hazelwood, sued the defendant and P. H. Suiter for damages for the conversion of certain cane seed, which he alleged he had purchased at constable's sale.\\nThe defendant answered by general denial, and denied that he was indebted to the plaintiff or to Suiter who had raised the cane seed as the defendant's tenant.\\nThe case was dismissed as to Suiter and the plaintiff recovered against Jenkins, the verdict being for $200.\\nThe defendant appeals and claims that the execution sale at which the plaintiff was purchaser was held without sufficient'notice and therefore void; that the court erred in instructing the jury that the validity of the sale could not be questioned by Jenkins because he was not a party to the action in which the sale was had; also, that the court gave the jury no measure of damages and there was no evidence to support the verdict for the amount awarded by them.\\nCounsel concede that an entire stranger to a lawsuit who buys in personal property at a judicial sale even when notice thereof was for an insufficient length of time acquires a title which cannot be questioned collaterally, but they argue that the plaintiff was not an innocent purchaser at the constable's sale and therefore Jenkins has a right to assert the insufficiency of the notice and the invalidity of the plaintiff's title. The plaintiff has filed no brief.\\nIt seems from an examination of the record that the plaintiff's wife, M. E. Hazelwood, got a judgment against Suiter and wife in justice's court for $164.99 and costs, and levied on a crop of cane which Suiter had raised on defendant Jenkins' farm; that the levy was made August 12, and the property was sold August 21, the statute requiring the sale to be advertised ten days. (Gen. Stat. 1915, \\u00a7 7848.) The plaintiff, F. B- Hazelwood, testified that he attended the sale and purchased Suiter's undivided interest in the cane; that the action was brought by his wife while she ran a store at Gove City, and that he was in the store with her on a salary.\\n\\\"I went with the sheriff when he attached the cane. I never took possession of the horses I bought.' I never took possession of the cane. I had my arrangement to cut it. . . .\\n\\\"Q. Did you pay Mr. Cook [the sheriff] out there for this cane and these horses? A. I satisfied the account.\\n\\\"Q. How did you satisfy it? A. I satisfied her claim.\\n\\\"Q. How did you satisfy that? A. I paid for it with wages.\\n\\\"Q. Who did you pay? A. Mrs. Hazelwood. '\\n\\\"It was the agreement when I bought it that I was to settle for it that day. I never paid any money to Mr. Cook. I had something to do with the filing of this suit of M. E. Hazelwood against P. A. Suiter. I knew it was filed . I started the suit for Mrs. Hazelwood. I had authority to start it. I think I paid the costs to the sheriff. I cannot say how much money I paid. I do not think Mr. Suiter owes myself or Mrs. Hazelwood anything at this time.\\\"\\nThe defendant testified among other things that in August, 1918 (the month in which the levy was made), Suiter had an interest in the crop:\\n\\\"He owed me $128.00 which he has not paid. He assisted in the harvesting of the crop. He made no objection as to the time or manner of cutting the crop. There was nothing left after the expenses were paid. . . . Our contract was that he was to receive one-third of the proceeds of the crop after the expenses were paid.\\\"\\nThe court charged the jury that the validity of the former proceedings between the plaintiff and another party could not be complained of by one not a party to that-action, and could not be collaterally attacked.\\n\\\"In other words, if you find from the evidence that the plaintiff in this action purchased the property in controversy in this action at a Sheriff's sale based on an execution issued in a case in which the Defendant Jenkins was not a party then in such event you are instructed that Defendant Jenkins cannot in this present action attack the validity of the officers proceedings in the action in which such execution was levied.\\\"\\nNo instructions were given touching the measure of damages unless it might be inferred from instruction No. 6:\\n\\\"If you find for the plaintiff in this action you should deduct a reasonable compensation for the expense of cutting and harvesting the property and if you consider the testimo^ as to the market value of such property then in such event you should also deduct reasonable compensation for thrashing and hauling.\\\"\\nThere was testimony as to how many bushels an acre the crop averaged, and that kafir corn was worth $1.50 a bushel and sold at $1.50 a bushel for chicken feed. Counsel contend that the measure of damages was the value of the property at the time of the con version and that there was a dispute as to what interest Suiter had in the crop and no denial that he owed Jenkins money, and no testimony whatever as to the necessary expense of harvesting and thrashing. In Jenkins v. Kirtley, 70 Kan. 801, 79 Pac. 671, where the damages were for the breach of a partnership contract, the jury were told that in fixing the amount it must be left to their discretion, and the instruction was considered faulty as it left the jury without guidance\\u2014\\n\\\"But, beyond this, it contained a positive misdirection, in that it told them they could use their own ingenuity in the matter. Having undertaken to state a rule the court should have given one which was correct. The elements of damage open tt> consideration should have been enumerated and methods and criteria for. their estimation should have been pointed out.\\\" (p. 803.)\\n13 Cyc. 236 was cited, which holds that the rules by which damages are to be estimated should be laid down by the court, and \\\" 'it is its duty to explain to the jury the basis on which the assessment should be made, the proper elements of the damages involved, and within what limits they may be estimated in the case involved.' \\\" (p. 804.)\\nThe general rule is that one who buys property at a judicial sale, even when the notice is insufficient, acquires a title which, though it might be voidable at the instance of an opposing claimant if the purchaser had been a party to the suit, is good in the hands of a stranger to the suit who purchased bona fide. (Cross v. Knox, 32 Kan. 725, 5 Pac. 32, and Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. 422.) In the latter case it was said:\\n\\\"It is also in evidence that Rounsaville had full knowledge of said judgment before the release was entered, and before he purchased the property from Noble; and that while he and Noble were negotiating with reference to the purchase and sale of the property, they procured an abstract of the title to the property which showed that the judgment was in fact a lien upon the property; and the evidence is undisputed that Hentig himself, during that very time, told Rounsaville that the judgment was a lien upon the property, and that, while he was willing to release the judgment, as Noble desired him to do, yet that he did not consider that anything he, Hentig, might do with reference to the matter, would be worth anything.\\\" (p. 75.)\\n3 Freeman on Executions, 3d ed., \\u00a7 340:\\n\\\"With respect to infirmities in the proceedings, the plaintiff and his attorney are less favored thap strangers to the writ. Strangers are allowed and encouraged to rely upon the facts set forth in the record, and upon the presumption that all the officers of the law have in all respects performed their duties. But if notice of vices or infirmities in the proceedings is brought home to strangers purchasing at execution sales, then such vices or infirmities may impair the title in the hands of such purchaser with notice; but it is incumbent on the plaintiff and his attorney to keep informed of all the proceedings taken in the case under their direction, or by virtue of their authority. The law will not permit them to be ignorant of such proceedings.\\\"\\nFreeman on Void Judicial Sales, 4th ed., \\u00a7 48:\\n\\\"A purchaser's claim to relief is dependent upon his bid being made in the belief that the sale was of a perfect title. If he knew of the defect, or from pursuing inquiries suggested by the pleadings or notice of sale would have known of it, he is not entitled to be released.\\\" (p. 164.)\\nHerman on Executions, \\u00a7 328:\\n\\\"An execution-creditor who bids off the property at a sale on his own execution, and applies the bid on his judgment, is not regarded as a bona fide or innocent purchaser; . . . The law presumes that he has notice of every fact and step in the proceeding, from .the commencement of the action until after the completion of the proceedings under execution, and the creditor is bound to know that all the proceedings are legal up to the sale . a plaintiff who bids on the property in the name of another, but applies the amount due on his judgment in payment pf his bid, and is himself the real purchaser, the person in whose name the property is purchased is not an innocent purchaser.\\\" (pp. 487-489.)\\n\\\"The courts are divided upon the question as to whether the judgment creditor who purchases at his own sale is affected by irregularities, liens, and equities of which he had no actual notice. According to the doctrine prevailing in the majority of jurisdictions he is not an innocent purchaser, but is chargeable with notice of all irregularities in the judgment, execution, and sale, and of all liens upon, and equities subsisting against the property in the hands of the judgment debtor.\\\" (23 C. J. 764.)\\nUnder the plaintiff's own testimony the execution sale was in a case engineered if not brought by himself in the name of his wife. He did not even take the pains to satisfy the judgment or have her satisfy it. He simply made some arrangement with her, he says, by which his wages due himself from her went to offset the matter. He satisfied her claim. He \\\"paid for it with wages.\\\" The sheriff testified that Mr. Hazelwood paid the costs but \\\"paid no cash on the judgment.\\\" So, to all intents and purposes the suit was the plaintiff's suit and he bought with the same knowledge and responsibility as if he had been the nominal as well as the practical plaintiff in the action. In such capacity he levied on the grain claimed by the defendant, and at a sale after only nine days' notice he bought it. Under all logic and authority he was not an innocent purchaser, and the defendant's attack on the validity of the sale was not collateral as against him.\\nThe jury should have been given the basis of damages and there should have been evidence as to value and also as to the cost of putting the crop in condition for market. - The judgment is reversed and the cause remanded for further proceedings in accordance herewith.\"}"

kan/1894327.json

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+"{\"id\": \"1894327\", \"name\": \"Jessie Clements, Appellee, v. Walter L. Manson and William Thomas Manson, Appellants\", \"name_abbreviation\": \"Clements v. Manson\", \"decision_date\": \"1922-06-10\", \"docket_number\": \"No. 23,776\", \"first_page\": 403, \"last_page\": \"406\", \"citations\": \"111 Kan. 403\", \"volume\": \"111\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:39:08.483799+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jessie Clements, Appellee, v. Walter L. Manson and William Thomas Manson, Appellants.\", \"head_matter\": \"No. 23,776.\\nJessie Clements, Appellee, v. Walter L. Manson and William Thomas Manson, Appellants.\\nSYLLABUS BY THE COURT.\\n1. Oral Contract \\u2014 To Withhold Suit to Set Aside Will. The findings and verdict returned by the jury were supported by sufficient evidence.\\n2. Same \\u2014 Compromise and Settlement \\u2014 Forbearance to Bring Suit to Set Aside Will. The plaintiff claimed that her brothers, the defendants, agreed to pay her a certain sum for her withholding a suit to set aside the will and certain conveyances of their father. The record indicates that the plaintiff had been advised and believed that she had a good cause of action, and it is held that under such circumstances an oral agreement to pay a certain sum for forbearance was valid; and such alleged agreement was sufficiently supported by the evidence.\\nAppeal from Kingman district court; George L. Hay, judge.\\nOpinion filed June 10, 1922.\\nAffirmed.\\nCarr W. Taylor, J. H. Connaughton, both of Hutchinson, and H. E. Walter, of Kingman, for the appellants.\\nC. C. Calkin, and S. S. Alexander, both of Kingman, for the appellee.\", \"word_count\": \"1438\", \"char_count\": \"8093\", \"text\": \"The opinion of the court was delivered by\\nWest, J.:\\nThe plaintiff sued her two brothers, Walter L. Manson \\u2022 and William Thomas Manson, for $5,000, alleging that they had agreed to pay her that sum- in consideration of her forbearance to bring a suit to set aside their father's will and certain conveyances.\\nThe petition alleged that prior to his death in February, 1916, the father, Walter Manson, sr., had made conveyances of a large part of his property, and that immediately after his death the defendants produced what they asserted was his last will and testament with codicil, containing a bequest to the plaintiff of $500 and no more; that she, the plaintiff, took the position that the will and codicil were void because procured by the brothers through fraud, duress and undue influence and that the conveyances preceding the will were void for the same reasons; that she claimed her rights as a daughter and heir at law as though her father had died intestate without making such conveyances and that she advised the defendants that she would begin litigation to recover her interest as a legal heir; that the controversy thus arising and existing was in good faith on her part; that a compromise and settlement between her and her brothers was orally agreed upon.\\n\\\"That for and in consideration of this plaintiff giving up, foregoing, waiving and abandoning her said claims and her said threatened litigation and in addition thereto that this plaintiff should not contest the said will and codicil, but would receive and accept the bequest therein in her favor in the said sum of $500.00 the said defendants would in addition thereto pay to this plaintiff within the time and on the conditions hereinafter set forth the sum of Five Thousand Dollars ($5^)00.00). That as a further part of said settlement and agreement it was agreed that said sum of $5,000.00 should be paid by said defendants to this plaintiff immediately upon the expiration of one year from the date of the death of the said Walter Manson, and on the further condition that this plaintiff had not, within said year, brought any action to contest the will and codicil of the said Walter Manson, deceased, or to cancel and set aside the conveyances .\\\"\\nThe answer denied generally all the allegations and denied that William Thomas Manson had any authority to act for his brother, Walter L. Manson, in making any contract with the plaintiff, and alleged that there was a total failure of consideration to support the pretended oral contract alleged, and that the pretended cause of action set out by plaintiff was barred by the five-, three-, two- and one-year statutes of limitation.\\nThe plaintiff testified to a conversation had with Thomas Manson in the presence of his wife:\\n\\\"I told him that I wanted to get the $5,000 apiece and the $1,000 that was given us in the will and if he would- do that we would not bring suit against them and would not tie up the property and that they said they thought that was a little too much. Finally I said I will take $4,000 for myself but I would not take less than $5,000 for my sister. He, Tom, said I will give you $4,000 if you don't sue and they wanted me to write my sister and find out about her part, if she would not take $4,000 instead of $5,000. I wrote to her and she sent me a telegram, which came on February 25th.\\\"\\nShe testified that at the time of the funeral she had a talk with her brother Walter and after telling him what she thought about the condition of affairs he said:\\n\\\"It did not look just right and he said for me to talk it over with brother Thomas and we could talk it over and then he would see brother Thomas and talk it over with him and then he said whatever brother Tom said would be all right with him.\\\"\\nFurther, a few days after her father's death the plaintiff went to see two of the attorneys for the defendants and was advised to bring suit; that she had a good case. She then went to her brother Thomas's house and after she had told him her side of the case he said that it was wrong for him to do the way he had done and he was sorry for the part he had in it. He said he had seen Walter and had been to Kingman to see an attorney and they had agreed to pay the money to her and her sister one year after the date of her father's death. Thomas said he had received ,a letter from Walter but would not let the plaintiff see it, but that Walt\\u00e9r would come through with his part of the agreement. In 1917, Walter had a talk with the plaintiff and said that whatever Thomas had agreed to do would be all right with him and agreed to carry out the details as Thomas had made them.\\nThe plaintiff recovered, and the defendants appeal, assigning as error certain rulings touching instructions, and the denial of a new trial.\\nThe defendants requested the court to instruct that any agreement on the part of the defendants to pay or do anything in consideration of forbearance on the part of the plaintiff to brifig suit would be without consideration and void. This was refused. The court charged that if the plaintiff had expressed dissatisfaction with the will and in good faith threatened to contest it, and that thereafter in order to compromise and settle the difference between the members of the family the plaintiff agreed not to Contest the will and not to involve the estate in litigation, and in pursuance thereof the defendants, or either of them agreed to pay a certain sum of money to the plaintiff, the jury would be warranted in finding that there was a sufficient consideration to support such oral agreement, if one were made. The jury were told in substance that in order for the plaintiff to recover she must have believed in good faith that she had a valid cause of action.\\nIt is contended that the negotiations did not constitute an oral contract; that the agreement claimed to have been made was for forbearance to bring a groundless suit; and it is also argued that before the plaintiff could recover she must show that her father was incapacitated or under duress when he made the conveyances and the will.\\nThe jury in answer to special questions found that the agreement was made and that its terms were that in consideration of the plaintiff's foregoing litigation the defendants would pay her $4,000 upon the expiration of the year after the death of the testator. From an examination of the record we find that the evidence was sufficient to justify'these findings and the verdict reached by the jury-\\nThere is nothing to indicate that the plaintiff was acting in bad faith in her threat to bring suit, but on the contrary she had been advised by good lawyers that she had a good case, and she evidently felt th.at she had been unfairly treated in the distribution of her father's estate. While the alleged oral contract was denied, the testimony already quoted was. sufficient if believed, as it manifestly was, to substantiate the*claim of the plaintiff.\\nFinding no material error in the record, the judgment is affirmed.\"}"

kan/194871.json

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+"{\"id\": \"194871\", \"name\": \"State of Kansas, Appellee, v. Barbara J. Blair, Appellant\", \"name_abbreviation\": \"State v. Blair\", \"decision_date\": \"1999-02-12\", \"docket_number\": \"No. 81,102\", \"first_page\": 7, \"last_page\": \"8\", \"citations\": \"26 Kan. App. 2d 7\", \"volume\": \"26\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T00:32:13.888929+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Rulon, P.J., Pierron and Marquardt, JJ.\", \"parties\": \"State of Kansas, Appellee, v. Barbara J. Blair, Appellant.\", \"head_matter\": \"(974 P.2d 121)\\nNo. 81,102\\nState of Kansas, Appellee, v. Barbara J. Blair, Appellant.\\nOpinion filed February 12, 1999.\\nRobert J. Bednar, of Bednar and Mock, A Professional Association, of Atchison, for the appellant.\\nPatrick E. Henderson, assistant county attorney, and Carla J. Stovall, attorney general, for the appellee.\\nBefore Rulon, P.J., Pierron and Marquardt, JJ.\", \"word_count\": \"403\", \"char_count\": \"2421\", \"text\": \"Pierron, J.: Barbara J.\\nBlair appeals her conviction for driving while under the influence of alcohol (DUI) pursuant to K.S.A. 1997 Supp. 8-1567(a)(3). Blair argues the State failed to introduce evidence that she was driving under the influence of alcohol to a degree that rendered her incapable of safely driving a vehicle. We affirm.\\nWhen the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).\\nBlair argues the State must produce evidence of erratic driving or impaired driving when the charges are not a per se blood alcohol concentration violation of the DUI statute. Blair contends the State lacked such evidence because the officer testified she was not stopped for erratic driving, she immediately stopped when signaled by the officer, she was not committing any traffic infraction, she did a fairly good job on the field sobriety tests, and she felt that she could safely operate her vehicle.\\nUnder K.S.A. 1997 Supp. 8-1567(a)(3), being under the influence of alcohol means that the operator's physical or mental function is so impaired by the consumption of alcohol that he or she is incapable of safely driving a vehicle. See State v. Arehart, 19 Kan. App. 2d 879, Syl. \\u00b6 1, 878 P.2d 227 (1994). In finding Blair guilty, the district court relied on the officer's testimony that Blair had an odor of alcohol about her and that she had problems with the field sobriety tests. The court also relied on Blair's statements to the officer that she had consumed four beers, was drunk, knew she was drunk, and would take a blood test to prove it. This evidence is sufficient to convict Blair.\\nAfter thorough consideration of the arguments raised on appeal and review of the entire record, we affirm Blair's conviction.\\nAffirmed.\"}"

kan/194915.json

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+"{\"id\": \"194915\", \"name\": \"Velma M. Henrichs, Executrix of the Estate of Gertrude W. HOENER, Deceased, Appellant, v. Peoples Bank, Pratt, Kansas, Appellee\", \"name_abbreviation\": \"Henrichs v. Peoples Bank\", \"decision_date\": \"1999-03-19\", \"docket_number\": \"No. 79,084\", \"first_page\": 582, \"last_page\": \"585\", \"citations\": \"26 Kan. App. 2d 582\", \"volume\": \"26\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T00:32:13.888929+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Pierron, P.J., Paddock, S.J., and Matthew J. Dowd, District Judge, assigned.\", \"parties\": \"Velma M. Henrichs, Executrix of the Estate of Gertrude W. HOENER, Deceased, Appellant, v. Peoples Bank, Pratt, Kansas, Appellee.\", \"head_matter\": \"(992 P.2d 1241)\\nNo. 79,084\\nVelma M. Henrichs, Executrix of the Estate of Gertrude W. HOENER, Deceased, Appellant, v. Peoples Bank, Pratt, Kansas, Appellee.\\nOpinion filed March 19, 1999.\\nGreg L. Bauer, of Law Offices of Bauer, Pike, Pike & Johnson, Chtd., of Great Bend, for appellant.\\nDavid M. Rapp and Roger M. Theis, of Hinkle, Eberhart & Elkouri, L.L.C., of Wichita, for appellee.\\nBefore Pierron, P.J., Paddock, S.J., and Matthew J. Dowd, District Judge, assigned.\", \"word_count\": \"1065\", \"char_count\": \"6575\", \"text\": \"Paddock, J.:\\nHenrichs appeals the granting of summary judgment in favor of Peoples Bank (Bank) on her claim that the Bank negligently or knowingly allowed Ronald Hoener to wrongfully deplete Gertrude W. Hoener's funds. We affirm.\\nIn 1988, Gertrude signed a signature card at the Bank giving Ronald authority to write checks on her account. She also executed a broad power of attorney making Ronald her attorney in fact. The power of attorney did, among other things, authorize Ronald to draw checks on her account, surrender for cash any of her certificates of deposit and, in general, to perform all acts that she could do.\\nThe signature card that Gertrude signed giving Ronald access to her accounts directed the Bank to send her monthly bank statements to her in care of Ronald. The Bank complied with her request by mailing Gertrude's monthly bank statements to Ronald from 1988 until her death in 1995.\\nGertrude entered a nursing home in 1990 but had never been declared incompetent or in any way incapable of managing her business affairs. In fact, it was uncontroverted that Gertrude was an astute business person who accumulated much of her property through her own efforts.\\nBetween 1989 and 1993, $248,000 was withdrawn from Gertrude's checking account. Of that amount, $108,200 was withdrawn by checks signed by her and the balance withdrawn by checks signed by Ronald made payable to himself. Ronald also, pursuant to the power of attorney, liquidated certificates of deposit owned by Gertrude in a total amount of $259,942.\\nOur standard of review for determining the appropriateness of summary judgment has been so often stated that we need not repeat it here.\\nHenrichs argues that the district court erred in concluding that her claim against the Bank was barred by K.S.A. 84-4-406. This presents a question of law over which appellate courts have unlimited review. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).\\nK.S.A. 84-4-406 provides in relevant part:\\n\\\"(f) Without regard to care or lack of care of either the customer or the bank a customer who does not within one year after the statement [of account] or items [paid] are made available to the customer [subsection (a)] discover and report the customer's unauthorized signature or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration.\\\"\\nThe district court based its conclusion that Henrichs' claim was barred by K.S.A. 84-4-406 on facts that Gertrude's monthly bank statements were sent to Gertrude in care of Ronald and that the statements containing the transactions at issue were received by Ronald more than 1 year prior to the filing of this action.\\nHenrichs argues that K.S.A. 84-4-406 does not apply to this case because the bank had actual knowledge of Ronald's misappropriation of Gertrude's funds. She argues that the statute should not function to protect a culpable bank from an innocent account holder. The district court correctly determined Henrichs provided no evidence to support this contention. Furthermore, the statute indicates that a lack of care on the Bank's part is not a consideration.\\nHenrichs next argues that K.S.A. 84-4-406 requires that the Bank make its statement \\\"available\\\" to its customer. Henrichs infers this requirement was not met when the statements were mailed to Ronald. The signature card in which Gertrude gave Ronald access to her account states clearly that the statements were to be sent to Gertrude in care of Ronald. The Bank made the statements available to Gertrude by sending the statements to the address directed by Gertrude. Henrichs cannot successfully argue that under these circumstances the statements were unavailable to Gertrude.\\nThe district court properly concluded K.S.A. 84-4-406 bars Henrichs' claims in this case concerning her bank accounts.\\nThe district court also concluded that Henrichs' claims were time barred pursuant to K.S.A. 1998 Supp. 60-513(a)(4). Henrichs claims the Bank was negligent. Additionally, she alleges that injury was not ascertainable until within 2 years prior to the filing of this case. We disagree.\\nHenrichs' cause of action is based on the depletion of Gertrude's assets by Ronald. In September 1993, Gertrude and her family members were informed by Gertrude's attorney that Gertrude was running out of money with which to pay for her care. As a result, Gertrude, with the advice of her attorney, was considering executing a power of attorney which would allow Ronald to sell some real estate, if necessaiy, to pay for her care. Therefore, Gertrude and her family were aware, as of September 1993, that Gertrude's assets had been mostly depleted and had, at that point, a duty to investigate. Henrichs' petition was not filed until June 1996. K.S.A. 1998 Supp. 60-513(a)(4) bars her claim.\\nFinally, Henrichs claims that the district court erred in concluding that Ronald's actions were authorized by the account signature card and the power of attorney. This claim is totally without merit. We have carefully examined the signature card and the power of attorney and find, contrary to Henrichs' claim, that those documents did authorize the transactions at issue.\\nHenrichs argues that even if the transactions were authorized, the Bank remains liable because it knew Ronald was misusing Gertrude's funds and knowingly participated in fraud. The finding by the district court that certain Bank employees had concerns about Ronald's actions does not create a material issue of fact as to whether the Bank knowingly participated in any fraud committed by Ronald. The district court concluded that Henrichs failed to present evidence to support her argument. We agree.\\nAn appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails. McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994). Assertions in an appellate brief are not sufficient to satisfy inadequacies in th\\u00e9 record on appeal. Smith v. Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993). We find no error.\\nAffirmed.\"}"

kan/241299.json

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+"{\"id\": \"241299\", \"name\": \"Ada Bollinger, Appellee, v. City of Hill City, Appellant\", \"name_abbreviation\": \"Bollinger v. City of Hill City\", \"decision_date\": \"1925-02-07\", \"docket_number\": \"No. 25,677\", \"first_page\": 682, \"last_page\": \"682\", \"citations\": \"117 Kan. 682\", \"volume\": \"117\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:36:49.536365+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dawson, J., not sitting.\", \"parties\": \"Ada Bollinger, Appellee, v. City of Hill City, Appellant.\", \"head_matter\": \"No. 25,677\\nAda Bollinger, Appellee, v. City of Hill City, Appellant.\\nMEMORANDUM DECISION ON REHEARING.\\nAppeal from Graham district court; Charles I. Sparks, judge.\\nDecision announced February 7, 1925.\\nOriginal opinion of affirmance adhered to.\\n(See 116 Kan. 604, 227 Pac. 265.)\\nW. L. Sayers, J. S. Parker, both of Hill City, Robert Stone, George T. McDermptt, Robert L. Webb, and Beryl R. Johnson, all of Topeka, for the appellant.\\nJ. K. Cubbison, William G. Holt, and C. M. Kaekley, all of Kansas City, Mo., for the appellee.\", \"word_count\": \"153\", \"char_count\": \"926\", \"text\": \"The decision of the court was announced .by\\nHopkins, J.:\\nOn application a rehearing was granted. Additional briefs were filed, and the case again submitted. After a further and careful consideration of the whole case, the court is of the opinion that the original judgment and opinion of affirmance should be adhered to.\\nIt is accordingly so ordered.\\nDawson, J., not sitting.\\nBurch, J., dissenting.\"}"