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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.\"}"
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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.\"}"
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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.\"}"
\ No newline at end of file
diff --git a/kan/1100888.json b/kan/1100888.json
new file mode 100644
index 0000000000000000000000000000000000000000..3e539fa92464bbee7da81d88c61b08d87734b27d
--- /dev/null
+++ b/kan/1100888.json
@@ -0,0 +1 @@
+"{\"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.\"}"
\ No newline at end of file
diff --git a/kan/1120783.json b/kan/1120783.json
new file mode 100644
index 0000000000000000000000000000000000000000..344aefe03935c26e5c9c49f6b87525ed38d29439
--- /dev/null
+++ b/kan/1120783.json
@@ -0,0 +1 @@
+"{\"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.\"}"
\ No newline at end of file
diff --git a/kan/1120853.json b/kan/1120853.json
new file mode 100644
index 0000000000000000000000000000000000000000..6a28638cfe0fdb9c3909b684897f4369fc9ff169
--- /dev/null
+++ b/kan/1120853.json
@@ -0,0 +1 @@
+"{\"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.\"}"
\ No newline at end of file
diff --git a/kan/1146021.json b/kan/1146021.json
new file mode 100644
index 0000000000000000000000000000000000000000..fe963a0be049d081fd8eaca98104531cb042fb9f
--- /dev/null
+++ b/kan/1146021.json
@@ -0,0 +1 @@
+"{\"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.\"}"
\ No newline at end of file
diff --git a/kan/1151636.json b/kan/1151636.json
new file mode 100644
index 0000000000000000000000000000000000000000..2d4f076d1631fb1ebb8e0b940d2b47ffa9b60078
--- /dev/null
+++ b/kan/1151636.json
@@ -0,0 +1 @@
+"{\"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.\"}"
\ No newline at end of file
diff --git a/kan/1151752.json b/kan/1151752.json
new file mode 100644
index 0000000000000000000000000000000000000000..42d31d2745f402f89457170491ed93261a16d6c6
--- /dev/null
+++ b/kan/1151752.json
@@ -0,0 +1 @@
+"{\"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.\"}"
\ No newline at end of file
diff --git a/kan/1151882.json b/kan/1151882.json
new file mode 100644
index 0000000000000000000000000000000000000000..6be853e507b7c943609b65f917c9fb8d07dffc12
--- /dev/null
+++ b/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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
\ No newline at end of file
diff --git a/kan/1240172.json b/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.\"}"
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diff --git a/kan/12417036.json b/kan/12417036.json
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index 0000000000000000000000000000000000000000..3ff792184711198ff7b9abd2a484550dcb5a5779
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/kan/12418102.json b/kan/12418102.json
new file mode 100644
index 0000000000000000000000000000000000000000..045a240d88897831ec2e7ceb67de38b86f516fad
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/kan/12419358.json b/kan/12419358.json
new file mode 100644
index 0000000000000000000000000000000000000000..aa8889f279936eadba154400db2c19c2e8e7d84b
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/kan/12420556.json b/kan/12420556.json
new file mode 100644
index 0000000000000000000000000000000000000000..007fa6009c44112e966ca3648d0c082cccff919b
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/kan/1242123.json b/kan/1242123.json
new file mode 100644
index 0000000000000000000000000000000000000000..21c9cff25e4925d26d449b0ff906450963ec17e6
--- /dev/null
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@@ -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.\"}"
\ No newline at end of file
diff --git a/kan/12572032.json b/kan/12572032.json
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--- /dev/null
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+"{\"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.\"}"
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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.\"}"
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diff --git a/kan/1260205.json b/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.\"}"
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diff --git a/kan/1276480.json b/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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/kan/194915.json b/kan/194915.json
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index 0000000000000000000000000000000000000000..bf14357de23c8b60d714ea7654cf0fe307c745d8
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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.\"}"
\ No newline at end of file
diff --git a/kan/241299.json b/kan/241299.json
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index 0000000000000000000000000000000000000000..09645b158a2938796cf18159b361534452a841ff
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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.\"}"
\ No newline at end of file
diff --git a/kan/246030.json b/kan/246030.json
new file mode 100644
index 0000000000000000000000000000000000000000..8c6a1781b7d204bb2ee0d91b28fb3376af328a70
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"246030\", \"name\": \"Minnie M. Laffery, Appellee, v. The United States Gypsum Company et al., Appellants\", \"name_abbreviation\": \"Laffery v. United States Gypsum Co.\", \"decision_date\": \"1914-06-06\", \"docket_number\": \"No. 18,436\", \"first_page\": 475, \"last_page\": \"480\", \"citations\": \"92 Kan. 475\", \"volume\": \"92\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:32:28.046677+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Minnie M. Laffery, Appellee, v. The United States Gypsum Company et al., Appellants.\", \"head_matter\": \"No. 18,436.\\nMinnie M. Laffery, Appellee, v. The United States Gypsum Company et al., Appellants.\\nSYLLABUS BY THE COURT.\\nMines and Mining \\u2014 Negligence\\u2014Falling Book \\u2014 Death of Employee \\u2014 Liability of Mine Owner \\u2014 Independent Contractor. The syllabus in Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498, except paragraph six thereof, is adopted as the syllabus in this case.\\nAppeal from Marshall district court; Sam Kimble, judge.\\nOpinion filed June 6, 1914.\\nAffirmed.\\nO. C. Mosman, John E. MacLeish, and W. W. Redmond, all of Marysville, for the appellants; Scott,. Bancroft & Stevens, of counsel.\\nE. A. Berry, of Waterville, W. J. Gregg, and J. D.. Gregg, both of Frankfort, for the appellee.\", \"word_count\": \"1629\", \"char_count\": \"9834\", \"text\": \"The opinion of the court was delivered by\\nSmith, J.:\\nThis action has been tided three times in the district court. On the first trial the jury failed to-arrive at a verdict; on the second trial verdict and.judgment were for the plaintiff, and an appeal was taken to this court and the judgment was reversed. (Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498). The questions there presented are practically the same as are-now involved. The judgment was then reversed for the failure of the trial court to submit a disputed question of fact, viz., whether a person who employed the workmen and superintended the operation of a gypsum mine was an independent contractor or the superintendent for the owner. On the third trial the question was submitted to the jury upon the evidence, and it was found that Drake was the superintendent and not an independent contractor, and judgment was rendered against the owner as well as the superintendent. From, this judgment both Drake and the gypsum company-appeal.\\nThe general statement of the facts in controversy is the same now as before, and is sufficiently stated in the former opinion, supra, to give an understanding of the issues involved; also, the several propositions.of law stated in the first, second, third, fourth, fifth, seventh and eighth paragraphs are pertinent to this decision and are adopted as the law of this case. The-sixth paragraph now becomes immaterial, because the question of fact was submitted to and passed upon by the jury. The eighth paragraph, relating to the sufficiency of the evidence, still coincides with the views of the court, although the evidence is somewhat different than it was on the former trial.\\nThe appellant makes several assignments of error, the first and second of which are based upon the propositions that the mine was operated by Drake as an independent contractor of the appellant company, and that the company did not assume control of the mine, and hence was not responsible for the injury and death of appellee's husband. By the pleadings the issue was fairly presented.\\nThe appellee desired to prove that the appellant company had accident insurance in the Travelers Insurance Company upon the workmen employed at the time of Laffery's death; as bearing upon this fact the appellee introduced a written and printed report which was signed by \\\"J. E. Drake, Supt. United States Gypsum Co. Mines.\\\" This report was mailed by Drake to the appellant company and by the appellant company to the insurance company. It is contended that Drake, whatever his relationship - was, could not by any declaration or act subsequent to the accident bind the company. The report does not purport to bind the company, but does purport to show that the accident occurred through the fault of the deceased. In connection with the other evidence, especially the use made of the report by the appellant company, it was properly admitted as tending to prove that Drake was such superintendent and not an independent contractor. The appellee also introduced various correspondence between the appellant company and the insurance company and the policy of insurance issued to the appellant. The question of its relevancy is determined by the seventh paragraph of the syllabus of the former opinion.\\nThe first and second assignments of error constitute, in effect, a demurrer to appellee's evidence and a request for an instruction for appellant. There was no error in the ruling involved.\\nAs indicated in the former opinion, if Drake was an independent contractor and -the company retained no-control over the work or workmen, the relation of master and servant did not exist between the appellant company and the deceased, and the company would not be responsible in damages for the accident. This, however, is subject to the exception that if the contract between the company and the contractor required the performance of work, intrinsically dangerous however skillfully done, the eompany as well as the contractor might be liable. This question is not for our consideration if the finding that the relation between the gypsum company and Drake was that of -employer and employee, and not of owner and contractor, is -fairly sustained by the evidence.\\nThe jury found, in substance, that there was a contract between the gypsum company and Drake that Drake was to mine the gypsum at forty-five cents per ton, but that the contract was not made in good faith; that, in fact, Drake was the superintendent of the mine for the company at the time of the accident and was not an independent contractor. It is contended, however, that there is no competent evidence to support these charges.\\nDrake reported the death of Laffery on a blank of the Travelers Insurance Company and sent it to the appellant company. He signed it as superintendent of the gypsum company. It is ux-ged that this could not be evidence as it tended only to relieve him of responsibility and place it upon the company. The gypsum company, however, forwarded the report to the insurance company. There is no claim that Drake had any accident policy upon the employees, while there was evidence that the appellant coxnpany had such a policy. All the correspondence between the appellant company and the insurance company which was introduced in evidence manifested an interest on the part of the appellant in the insurance. A policy of insurance was finally introduced in evidence, running from the-Travelers Insurance Company to the appellant company, by which the insurance company undertook to-pay the appellant certain sums in the event of loss by-reason of injury to the employees at the mine in question. The policy purports to be in force from December 13, 1904, for one year. The accident occurred February 20, 1905. The policy, however, was not attested by the president and secretary of the insurance company until February 21, 1905. It contained a provision that it should not be binding upon the insurance company until countersigned by Phister and Wright, general managers, duly authorized agents of the company at Chicago, 111. Whether the policy was in force at the date of the accident is entirely immaterial to this action as a matter of evidence.\\nIf the appellant company applied for insurance against liability for which it might become liable for injuries to the laborers at the mine, and made such application before the accident and thereafter received the policy, it amounts to a recognition that. such laborers were its workmen to the same extent that it. would had such policy been fully executed and received by it before the accident; there is no evidence that the-insurance company denied liability thereon or that it. admitted such liability. There was evidence that the. policy was received by the' appellant company. If the laborers generally and the deceased were workmen for the appellant company, they were not workmen for-Drake as an independent contractor. There was sufficient evidence to justify the submission of the question to the jury and to justify a finding by the jury that Laifery, at the time of his death, was in the employ of the appellant company. We have examined all the questions raised upon the introduction of evidence and the alleged misconduct of the court and find no substantial error therein. There was some incompetent evidence admitted, of, witnesses called by the. appellee, but generally it-was so clearly shown on cross-examination to be irrelevant that no prejudice resulted to the appellant company from its admission. Probably much of it would have been stricken out had application been made therefor after the matter in question had been fully developed.\\nThe complaint is made that the court expressed its opinion on the weight of the evidence previously given during the progress of the trial, but the modification made by the court at the time, and the instructions given, fairly gave the jury to understand that the weight and effect of the evidence was for the determination of the jury and not for the court. No prejudice resulted to the appellant from the remark.\\nObjection is made, also, to remarks of counsel for appellee in summing up the case; that counsel therein indicated just what answers should be made to certain questions, and that the jurors adopted the answers indicated in answering several of the questions submitted.\\nAfter the evidence is concluded and the court has given its instructions in an action, it is the province of counsel on either side to review the evidence which has been presented in a light favorable to their respective clients, and by every fair means to convince the jury that their verdict, as well as the answers to special questions submitted, should be made favorable to the party for whom the address is being made. We can not say that the privilege of counsel was abused in this respect, nor that the answers to the special questions submitted, although in accordance with statements of counsel, were not supported by the evidence.\\nWe find no substantial error in the trial, and find that the verdict and judgment were supported by sufficient evidence.\\nThe judgment is affirmed.\"}"
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diff --git a/kan/267079.json b/kan/267079.json
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index 0000000000000000000000000000000000000000..c91af1a9b677e3b198895b4d70f3be472d109714
--- /dev/null
+++ b/kan/267079.json
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+"{\"id\": \"267079\", \"name\": \"David H. Miller, et al., Plaintiffs, v. Amelia Stoppel; Ben Heinze; Carl Heinze; Leah Feil; Meta Janne; Daniel W. Steinle; Marlyn Steinle; Francis Steinle and Jerry Steinle, minor heirs at law of Marie Steinle, deceased; and Daniel W. Steinle, as guardian of said minors, Appellants, v. Emma Harmison, Frank Harmison, Harry Frederick Kastrup; Karl Gerhardt Kastrup and Marie Frances Brack, Appellees\", \"name_abbreviation\": \"Miller v. Stoppel\", \"decision_date\": \"1952-03-08\", \"docket_number\": \"No. 38,259\", \"first_page\": 391, \"last_page\": \"398\", \"citations\": \"172 Kan. 391\", \"volume\": \"172\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:55:23.367486+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"David H. Miller, et al., Plaintiffs, v. Amelia Stoppel; Ben Heinze; Carl Heinze; Leah Feil; Meta Janne; Daniel W. Steinle; Marlyn Steinle; Francis Steinle and Jerry Steinle, minor heirs at law of Marie Steinle, deceased; and Daniel W. Steinle, as guardian of said minors, Appellants, v. Emma Harmison, Frank Harmison, Harry Frederick Kastrup; Karl Gerhardt Kastrup and Marie Frances Brack, Appellees.\", \"head_matter\": \"No. 38,259\\nDavid H. Miller, et al., Plaintiffs, v. Amelia Stoppel; Ben Heinze; Carl Heinze; Leah Feil; Meta Janne; Daniel W. Steinle; Marlyn Steinle; Francis Steinle and Jerry Steinle, minor heirs at law of Marie Steinle, deceased; and Daniel W. Steinle, as guardian of said minors, Appellants, v. Emma Harmison, Frank Harmison, Harry Frederick Kastrup; Karl Gerhardt Kastrup and Marie Frances Brack, Appellees.\\n(241 P. 2d 488)\\nOpinion filed March 8, 1952.\\nOscar Ostrum, of Russell, argued the cause, and Dean G. Ostrum, C. R. Holland and Marvin H. Thompson, all of Russell, were with him on the briefs for the appellants.\\nJerry E. Driscoll, of Russell, argued the cause, and Richard M. Driscoll, of Russell, was with him on the briefs for the appellees.\", \"word_count\": \"3087\", \"char_count\": \"17743\", \"text\": \"The opinion of the court was delivered by\\nThiele, J.:\\nThis was a quiet title action. From a judgment rendered in favor of one group of defendants, the remaining defendants appeal.\\nIn a preliminary way we note that in considering disposition of this appeal, the dates when various conveyances of real estate were made, as well as the dates various pleadings were filed, are important.\\nThe facts giving rise to the action are summarized.\\n1. Prior to June 4, 1904, Gerhard F. W. Kastrup was the owner of the Southwest Quarter of Section 13, Township 15, Range 12, West, in Russell County.\\n2. On June 4, 1904, Gerhard F. W. Kastrup and Emma his wife executed and delivered to Herman Kaufmann, George Buhler and Theodore Janne, trustees of the Evangelical Lutheran Immanual Congregation, and their successors in office, the following described real estate under conditions stated, viz:\\n\\\"A certain tract of land described as follows, to-wit: Beginning at a place 35 rods east of the southwest corner of Section 13, in Township 15, Range 12 West, thence going west 35 rods on the south line of said section to the southwest corner of said section, thence due north on the west line of said Section 61 rods, thence due east 31 rods, thence south to the south line of said section to the place of beginning, containing 12 acres and 93 rods of land. The condition of this deed is such that at any time said land ceased to be used for and by said Evangelical Lutheran Immanual Congregation for the use of public worship as set forth in its charter dated January 12th A. D. 1898, then said land shall revert back to said quarter section from which it was taken and all improvements put on said land may be removed from said land by the trustees of said Evangelical Lutheran Immanual Congregation.\\\"\\n3. On September 7, 1908, Gerhard F. W. Kastrup executed and delivered to Emma Kastrup a warranty deed to other land and the southwest quarter of the above mentioned section 13, except 12.93 acres in the southwest corner theretofore deeded to the above named trustees. \\\"Together with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.\\\"\\n4. On February 17, 1910, in accordance with a postnuptial agreement between them of the same date Gerhard F. W. Kastrup executed and delivered to Emma Kastrup a warranty deed to the southwest quarter of the above section 13. This deed contained no reservations or exceptions.\\n5. On June 17, 1913, Emma Harmison, formerly the wife of Gerhard F. W. Kastrup, and Frank Harmison, her husband, entered into a written contract to sell to Fred Heinze, the southwest quarter of the above section 13 \\\"except about 12 acres in the southwest corner owned by the German Lutheran Church\\\" and on September 25, 1913, they executed and delivered a warranty deed to Heinze conveying the southwest quarter of section 13, \\\"less 12 acres and 93 rods, in the southwest corner.\\\"\\n6. Fred Heinze, the grantee above named, died about December 5, 1913, leaving as his heirs his children Leah Feil, Marie Steinle, Amelia Stoppel, Meta Janne, Carl Heinze and Ben Heinze. Marie Steinle later died at some undisclosed date and as to her interest the action to quiet title was revived in the names of her husband and three children. The persons included in this paragraph are the appellants in this court.\\n7. On November 6, 1944, Emma Harmison and her husband executed a quitclaim deed, conveying to Harry Frederick Kastrup, Karl Gerhardt Kastrup and Marie Frances Brack, all the mineral rights under the same tract of land containing 12 acres and 93 rods as described in the deed to the trustees of the Church.\\n8. On November 6, 1944, Emma Harmison and her husband executed and delivered to Karl Gerhardt Kastrup a quitclaim deed to the lands last mention'ed, subject to the conveyance of mineral rights in and under the lands of even date to' the three persons above mentioned.\\nThe persons included in the last two deeds are the appellees in this court.\\nOn August 29, 1941, the plaintiffs commenced an action to quiet title to the lands as described in the deed noted at No. 2 above. The abstract filed in this court is prepared in such manner that we cannot determine from the petition, but do deduce from other proceedings that plaintiffs were successor trustees for the Congregation. Neither is there any showing as to what persons were named as defendants, although it is obvious that when the petition was filed some of those now denominated as defendants had as of that date no interest in the subject matter of the suit. In the petition there was a general allegation that the defendants claim some interest in the real estate, the claims constituting a cloud on the title. It was alleged also that the real estate was conveyed to the original trustees of the Congregation and that when the tract should no longer be used for church purposes it should revert to the quarter section of which it was originally a part. Apparently some land in an adjoining section had been described in the petition and not shown in the abstract for it was alleged that both conveyances were made before there was any contemplation by the grantors or grantees of the possibility of oil and gas development and that at the time of the filing of the petition plaintiffs could derive profits from leasing the tracts for oil and gas development which profits would inure to the benefit of the Church and used in furthering of church and public worship. It was further alleged that plaintiffs should be adjudged the owners in fee simple and their title quieted and that their right to lease the land for oil and gas development should be deemed not to come within the restrictions of the deed by which they claimed title, and they prayed for such relief.\\nThe abstract does not disclose with any certainty that any defendant who may have been named in the action as originally instituted filed any answer or other pleading. It does disclose that almost six years after the petition was filed and on June 14, 1947, Karl Gerhardt Kastrup, denominating himself a defendant but whose rights could not have accrued until November 6, 1944, in No. 8 above, filed an answer admitting that plaintiffs claimed ownership of the surface and mineral rights under the deed of June 4, 1904 (No. 2 above), and that a portion of the real estate, being the surface rights,- was being used for church purposes; that subject to the rights of the plaintiffs, defendant owned in fee simple all of the lands described in No. 2 above subject to the conveyance of the mineral rights to Harry Frederick Kastrup, Karl Gerhardt Kastrup and Marie Frances Brack under the deed referred to at No. 7 above, and prayed that he be adjudged to be the owner in fee simple and his title quieted.\\nOn the same day, June 14, 1947, Harry Frederick Kastrup, Karl Gerhardt Kastrup and Marie Frances Brack, denominating themselves as defendants, but whose rights accrued after the petition was filed (see No. 7 above), filed their answer admitting plaintiffs' ownership in the land and that the surface rights were being used for church purposes, alleging that they (defendants) were joint owners, as tenants in common, of the mineral rights under the real estate under the deed mentioned in No. 7 above, and praying that their title be quieted as against the plaintiffs and the defendants.\\nOn September 20, 1947, Dan W. Steinle, and Marlyn Steinle, Francis Steinle and Jerry Steinle by their guardian Daniel W. Steinle, filed replies to the two answers above noted in which they admitted that plaintiffs claimed ownership of the surface and mineral rights in the lands as described in No. 2 above, admitted the execution of the deeds to the defendants as alleged in their answers, but specifically denied that those defendants acquired any right, title or interest in the real estate. They prayed that defendants Kastrup, Kastrup and Brack be denied relief under their answers.\\nOn September 20,1947, Amelia Stoppel, Ben Heinze, Carl Heinze, Leah Feil and Meta Janne, denominating themselves defendants, filed a reply to the answer of Kastrup, Kastrup and Brack, making the same admissions and praying for the same relief as contained in the Steinle replies mentioned above.\\nTo avoid repetitious statement of names we shall refer hereafter to the one group of defendants as the Kastrups and to the other as the Heinze heirs.\\nThe abstract discloses that after the opening statement of the Kastrups, which is not set forth, the trial court inquired whether more than reversionary rights were involved and whether present rights in minerals were involved and their counsel answered they were but no one was questioning the rights of the Church (plaintiffs ). Counsel for the Heinze heirs stated no one was questioning the present use of the surface for church purposes and counsel for the Kastrups then stated that the church claimed it was entitled to the use of the land for all purposes. After counsel for the Heinze heirs made his opening statement the trial court asked if it was contended the church had more than an easement in the land and counsel for Kastrups said, \\\"I will answer that for the protection of the church. I will say yes.\\\" At the oral argument before us counsel expressly stated he did not then represent the Church (plaintiffs). As result of further colloquy between the trial court and counsel it became clear that the controversy between the two groups of defendants was whether the Kastrups were the owners of what they denominated reversionary mineral rights or whether the Heinze heirs had the present mineral rights and also reversionary rights in and to the minerals and the surface, the surface being subject to the right of the plaintiffs to use the land for church purposes.\\nIt may here be said that there is nothing in the record as abstracted to indicate whether the plaintiffs, six years after they filed their petition, had anything more than constructive notices of the filing of the answers and replies, or were advised that a trial would be had. At the trial the evidence consisted solely of instruments of title of record as above noted. The journal entry of judgment, which covers all proceedings from the commencement of the trial on May May 6, 1948, to the overruling of a motion for a new trial on May 10, 1950, shows no appearance for plaintiffs nor any explanation of their absence further than evidenced by the following statement:\\n\\\"It is conceded by the defendants now appearing that said property is being used for church purposes by the plaintiffs and their use for such purpose is not contested. The plaintiffs appear to have dropped all claims to the mineral rights so that the issues are now between the defendants as to the ownership of the right of reversion and to the mineral under said tract.\\\"\\nIncluded in the journal entry are findings of fact made July \\u00a37, 1949, as to the conveyances noted and as above set forth, as well as to lands in other sections and not presently involved. In its conclusions of law the trial court held that the deed of June 4,1904, (No. 2 above), did not convey any right, title or interest in the oil, gas or other materials in and under the tract; that the real matter in controversy concerned the ownership of the rights of reversion in the lands conveyed by the above deed and the minerals in and under the tract described and that it was undisputed they vested in Emma Kastrup by the deed mentioned at No. 4 above; that the deed to Heinze at No. 5 above excepted the tract involved; that the right of reversion vested in Karl Gerhardt Kastrup by the deed noted at No. 8 above and the mineral interests are vested in Kastrup, Kastrup and Brack, grantees in the deed noted at No. 7 above, and that their title should be quieted as against the other parties to the action. After reciting the findings of fact and conclusions of law just mentioned, the journal entry recites:\\n\\\". . . thereupon the court renders judgment in said cause in favor of defendants, Kastrup, et al., and against defendants, Amelia Stoppel, et al., (Heinze heirs) in accordance with the findings of fact and conclusions of law heretofore filed by the court in said case; . . .\\\"\\nIt is noted that no judgment was rendered against the plaintiffs.\\nThe journal entry further discloses that the Heinze heirs filed their motion for a new trial on September 2, 1949, and that it was overruled on May 10, 1950.\\nLater the Heinze heirs served a notice of appeal on Emma Harmison and her husband, and on the Kastrup heirs and their attorneys of record, from the judgment of August 31, 1949, and the ruling of May 10, 1950, on their motion for a new trial. There was no service on the plaintiffs although an attempt is made to affect their rights. Perhaps such service was not required under G. S. 1949, 60-3306, especially in view of the fact no judgment was rendered against the,plaintiffs.\\nNotwithstanding the precise terms of the judgment rendered, in this court the substance of the main contention of the appellants is that the reversion in the deed to the Congregation as set out in No. 2 above was to the quarter section of which the land conveyed was a part, and not a reversion to the grantors in that deed, and that by reason of the deed to Heinze the appellants, as his successors in title, were entitled to the reversion. Appellees, directing attention to the language of the deed shown at No. 3 above, argue that by it any reversion under the deed at No. 2 passed to Emma Kastrup and from her to them under the deed at No. 7. In the contentions by both appellants and appellees, it seems assumed that the plaintiffs had only surface rights in the lands conveyed to them by the deed at No. 2.\\nWe are of the opinion that the contentions as made need not be discussed.\\nConfining attention for the moment to the extent of interest acquired by the plaintiffs or their predecessors in trust under the deed at No. 2, it may be noted that that is to be determined from an examination of the deed and that we are in as good position as was the trial court to make such a determination. An examination of that deed shows that the entire fee, and not some portion of it, passed to the grantees, and were it not for the reversionary clause, they could have sold the entire fee without let or hindrance. The trial court's conclusion of law that this deed did not convey any right, title or interest in the oil, gas and other materials (minerals?) in and under the tract conveyed, or stated another way, that plaintiffs only had surface rights, cannot be and is not approved and sustained. We hold that this deed conveyed the entire fee, subject to a reversion if the land cease to be used by the Congregation for use of public worship.\\nInsofar as rights of reversion are concerned any attempted determination of who would take the reversion is premature, for it is conceded there has been no cessation of use by the Congregation and at this time no person is entitled thereto. It need not be elaborated that a reversioner's right of entry must have accrued before the statute of limitations runs against him, 31 C. J. S. 127, et seq., and 33 Am. Jur. 695, et seq., and of course the statute could not begin to run until he had a cause of action. As there has been no cessation of use, obviously appellants cannot now be declared owners on the theory advanced by them \\u2014 for if the reversion is to the quarter section of land and not to the original grantor Kastrup, it would be to the owners at the time there was cessation of use by the Congregation. That not having occurred, no one knows now who would be the owner. Nor may appellees be said to be in any better position because first there is presently no reversion, and second until there is no one knows who may be entitled to litigate the question under the theory advanced by the appellants. Of course there is always a possibility the Congregation will cease to use the real estate for purposes of public worship, but until that occurs no one entitled to the reversion has any cause of action to recover possession and there can be no effective determination as to who may be entitled to the tract involved.\\nUnder G. S. 1949, 60-3317, this court is directed on appeal to \\\"render such final judgment as it deems that justice requires . . . without regard to technical errors and irregularities in the proceedings of the trial court.\\\"\\nThe court is of the opinion that justice requires there be a final judgment quieting the title of the plaintiffs to the lands described in the deed at No. 2, subject to the reversionary condition contained in that deed and barring defendants from asserting any present right, title or interest in and to such real estate.\\nThe judgment of the trial court is reversed, vacated and set aside and the cause remanded with instructions to render judgment in accordance herewith.\"}"
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+"{\"id\": \"271550\", \"name\": \"The Mulberry State Bank, Appellant, v. Carl J. Peterson (Roy L. Bone substituted), as Bank Commissioner, etc., Appellee\", \"name_abbreviation\": \"Mulberry State Bank v. Peterson\", \"decision_date\": \"1925-06-06\", \"docket_number\": \"No. 25,966\", \"first_page\": 728, \"last_page\": \"730\", \"citations\": \"118 Kan. 728\", \"volume\": \"118\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:25:54.234773+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Mulberry State Bank, Appellant, v. Carl J. Peterson (Roy L. Bone substituted), as Bank Commissioner, etc., Appellee.\", \"head_matter\": \"No. 25,966.\\nThe Mulberry State Bank, Appellant, v. Carl J. Peterson (Roy L. Bone substituted), as Bank Commissioner, etc., Appellee.\\nSYLLABUS BY THE COURT.\\nBanks and Banking \\u2014 Time Certificates of Deposit \\u2014 Benefits Under Guaranty Fund. The proceedings considered, and held, time certificates of deposit, issued by a bank a short time before it was closed for insolvency, did not evidence deposits which entitle the holder of the certificates to benefit of the guaranty fund.\\nAppeal from Bourbon district court; Edward C. Gates, judge.\\nOpinion filed June 6, 1925.\\nAffirmed.\\nJohn A. Hall, of Pleasanton, for the appellant.\\nCharles B. Griffith, attorney-general, John G. Egan, assistant attorney-general, and J. B. Larimer, of Topeka, for the appellee.\", \"word_count\": \"1191\", \"char_count\": \"7031\", \"text\": \"The opinion of the court was delivered by\\nBurch, J.:\\nThe action was one to compel the bank commissioner to issue certificates payable from the depositors' guaranty fund on account of two time certificates of deposit of $2,500 each issued by the Farmers State Bank of McCune and sold to plaintiff. The court held the certificates were issued by the bank as a means of borrowing money, and denied the relief prayed for. Plaintiff appeals. There is no dispute about the material facts. The contention is, the court should have drawn from the facts the inference of deposit instead of money borrowed.\\nThe Farmers State Bank of McCune was a guaranteed bank. E. S. Dolson was cashier and Ora Riggs was assistant cashier. Dolson was a member of the firm of Van Patten & Dolson. The firm was state agent of the Liberty Life Insurance Company of Des Moines, Iowa. Leonard Campbell represented the firm in some capacity. Dolson caused the certificates to be issued and sold to plaintiff on August 30, 1921. On September 14 Dolson undertook to repeat, by sale to plaintiff of other certificates of $2,500 each, but plaintiff prudently consulted the bank commissioner about purchasing them, by letter of that date. The bank commissioner responded by telegram, advising plaintiff not to buy. A deputy bank commissioner commenced an examination of the bank the next day, September 15. The bank was closed by the bank commis sioner on September 21. It was hopelessly insolvent. It had been looted by Dolson,. who absconded the day it was closed. His defalcations had probably covered a period of four or five years. There was forged paper in the bank; real estate appeared as assets which did not exist; customers' bonds to the extent of $40,000 were missing; individual deposits in the sum of $55,000 were not carried on the bank's books; there was no record of outstanding time certificates of deposit to the amount of $25,000. Dolson had been managing officer of the bank, and of course he knew the condition of its affairs long before the examiner walked in September 15 and commenced to check the bank's assets and liabilities.\\nDolson wrote the certificates on the afternoon of August 30, but he dated one of them August 10 and the other August 20. Each one was a six months' time certificate, bearing three per cent interest, payable to the order of Van Patten & Dolson, state agents. When he had written the certificates, Dolson instructed the assistant cashier to sign them. She signed them and delivered them to Dolson.\\nOn August 30 the checking account of the payees with the bank was overdrawn, as it had been most of the time since June, and as it continued to be until September 15. Dolson's balance was $63.85 and Van Patten's balance was $19.55. No funds were in fact deposited by the payees, or by any one for them, when the falsely dated certificates were issued, and the statement of deposit of money by the payees contained in each certificate was not true.\\nWhen the assistant cashier delivered the certificates to Dolson, he told her if the Mulberry bank should inquire about them-and ask if they 'represented a regular deposit she should say yes. Dolson then indorsed the certificates in the firm name and gave them to Campbell, who personally took them to Mulberry, thirty-five miles away, and sold them to plaintiff for $4,500. When Campbell offered the certificates to plaintiff, plaintiff's cashier called the McCune bank by telephone and inquired if the bank were a guaranteed bank and if the certificates represented regular deposits. The assistant-cashier replied as Dolson had instructed. Plaintiff's cashier asked that the representation be put in writing, and the assistant cashier did so by letter to plaintiff, dated August 30. Plaintiff gave Campbell a cashier's check for $4,500, payable to the order of Van Patten & Dolson, and Campbell returned with it to McCune. The next day, August 31, the check was entered in the time-deposit account and was paid in due course of business.' On the same day Dolson placed among the cash items his personal check for $500, drawn on some bank in Lincoln, Neb. He did not forward the check for presentment and payment, but kept it in his bank until September 15. On that day the deputy bank commissioner directed him to take it up, and he did so. .\\nWhen a deposit guaranteed by the guaranty fund act is made, the depositor must be actor. Either by himself or through conduct exhibited in his behalf or for his benefit, he effects the deposit. The bank is passive recipient, even, although it may have stimulated the depositor's action and may have been benefited by the deposit. In this instance the bank, by its cashier, was sole actor. The cashier was in position to use the name of his bank and the name of his firm. The firm had no purpose to accomplish by making a deposit with the bank, had no means with which to make a deposit, and made no deposit. The cashier issued the certificates without a deposit, employed deception to give the certificates color of genuineness, indorsed them, and put them into the hands of a messenger to peddle to plaintiff, in order to get some cash in the bank's till. In a sense the certificates were bills payable, discounted by plaintiff; but because plaintiff was misled as to the true character of the paper, there was no actual borrowing or lending by anybody. In any event, there was no deposit of which plaintiff is assignee which entitles plaintiff to benefit of the guaranty-fund act.\\nThere was some evidence that Van Patten & Dolson, as state agents, followed the practice of making deposits in banks, taking time certificates and discounting the certificates to other banks as a means of promoting their life insurance business. So far as the record discloses, such deposits did not exceed in any instance the sum of $1,000, a sum not at all adequate to meet the needs of the Bank of McCune in late August and early September of 1921. Besides that, this deposit was not made with plaintiff, and plaintiff was already obligated to render favors to Van Patten & Dolson in respect to their life insurance business because of a time deposit of $1,000 which they had made with plaintiff long before the transaction under scrutiny.\\nThe judgment of the district court is affirmed.\"}"
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+"{\"id\": \"271798\", \"name\": \"B. W. Crabb, Appellant, v. The Kansas State Board of Dental Examiners, Appellee\", \"name_abbreviation\": \"Crabb v. Kansas State Board of Dental Examiners\", \"decision_date\": \"1925-05-09\", \"docket_number\": \"No. 25,920\", \"first_page\": 513, \"last_page\": \"517\", \"citations\": \"118 Kan. 513\", \"volume\": \"118\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:25:54.234773+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"B. W. Crabb, Appellant, v. The Kansas State Board of Dental Examiners, Appellee.\", \"head_matter\": \"No. 25,920.\\nB. W. Crabb, Appellant, v. The Kansas State Board of Dental Examiners, Appellee.\\nSYLLABUS BY THE COUBT.\\nPhysicians and Subgeons \\u2014 Revocation oj Dental Dicense \\u2014 Dishonorable Conduct. Under the statute regulating the practice of dentistry, the state board of dental examiners may revoke a license to practice dentistry upon the grounds of drunkenness of the practitioner in public places and the operation of an automobile on the streets of a city when he was under the influence of intoxicating liquor, well established, after due notice to him of the charges made in a written complaint and a hearing thereof.\\nAppeal from Reno district court; William G. Pairchild, judge.\\nOpinion filed May 9, 1925.\\nAffirmed.\\nEustace Smith, of Hutchinson, for the appellant.\\nCharles B. Griffith, attorney-general, and W. C. Ralston, assistant attorney-general, for the appellee.\", \"word_count\": \"1527\", \"char_count\": \"9188\", \"text\": \"The opinion of the court was delivered by\\nJohnston, C. J.:\\nThis is an appeal from a judgment denying an. injunction and dismissing plaintiff's action.\\nDr. B. W. Crabb was a dentist and had obtained a license from the state board of dental examiners on December 9, 1914, and had been engaged in the practice of dentistry in Hutchinson since 1916. On May 23, 1924, a verified complaint was made to the state board alleging that plaintiff had been arrested upon a charge of being drunk upon the streets and other public places of the city of Hutchinson on August 6, 1923,' in violation of an ordinance of the city. To this charge the doctor pleaded guilty and was sentenced by the court to pay a fine of $25 and be imprisoned for thirty days in the city jail of the city. Also that on August 15, 1923, he was again arrested upon a complaint charging him with driving and operating an automobile on the streets of the city while under the influence of intoxicating liquor in violation of a city ordinance, and that he had pleaded guilty to the charge, and was sentenced to pay a fine of $200 and the costs of the action, taxed at $217.50, and to stand committed to the city jail'until the fine and costs were paid. The complaint further stated that in these acts he had been guilty of dishonorable conduct and that his license to practice dentistry in Kansas should be revoked. After due notice to the plaintiff, a hearing was had by the Kansas state board of dental examiners, at which time the defendant appeared and admitted all of the facts set forth in the complaint, and also admitted that he had been duly served with notice as to the time and place of a hearing on the complaint made before the board. He contended, however, that the charges made did not constitute grounds for the revocation of his license within the meaning of the statute. After the hearing, and the case had been taken under advisement by the dental board, and before it had adjourned, the plaintiff instituted an action in the district court to enjoin the board from revoking or attempting to revoke his license. At a hearing upon the application to enjoin the revocation of his license, and upon the admitted facts, the court denied the injunction and dismissed the action. Subsequently the state dental board found that the admitted facts constituted grounds for revoking plaintiff's license and an order of revocation was made.\\nThe principal question for consideration is, Did the admitted drunkenness of the plaintiff on the streets and other public places of the city, and his conviction therefor, and the further fact that shortly afterwards he was arrested for operating an automobile on the streets of the city while under the influence of intoxicating liquors, which resulted in his conviction, warrant the revocation of the plaintiff's license to practice dentistry? A provision of the statute is that:\\n\\\"The board may refuse to issue the license provided for in this act, or may revoke such license if issued, to individuals who have by false or fraudulent representations obtained or sought to obtain money or any other thing of value, or have practiced under names other than their own, or for any other dishonorable conduct.\\\" (It. S. 65-1407.)\\nThe contention of the plaintiff is that the legislature in enumerating the two specific grounds for refusing a license or revoking one. that had' been issued, and adding the general words \\\"for any other dishonorable conduct,\\\" intended that the general words should be restricted and include only conduct of the classes specifically mentioned and that it must be conduct connected with the profession of dentistry or the practice thereof. The rule of ejusdem generis is invoked, and that rule is applicable where there is doubt as to the intention of the legislature, but it is not of itself a rule of interpretation, but only an aid to interpretation, and must always yield to the manifest legislative intent. (The State v. Prather, 79 Kan. 513, 100 Pac. 57.) It will be observed that the specific terms of the statute refer to different and unrelated subjects. One of them is the obtaining of money or other thing of value by false or fraudulent representations, which would include offenses or conduct not necessarily connected with the practice of dentistry. The other, which is practicing under a name other than his own, has relation to the practice. It appears that the two kinds of misconduct are materially different, and it has been held that when the specific words or subjects greatly differ from one another, the doctrine does not apply. Where such disparity exists the general words are not restricted, but are to be given their natural and wider meaning. (Brown v. Corbin, 40 Minn. 508; McReynolds v. The People, 230 Ill. 623; State v. Eckhardt, 232 Mo. 49.)\\nWe think that drunkenness in the circumstances stated involves dishonorable conduct, and that one who is drunk is unfit for the practice of dentistry. One in that condition has not the normal control of his physical and mental faculties. His judgment and fitness for professional work is not only impaired, but the charges to which the plaintiff has confessed constituted public offenses. (R. S. '.21-2128, 21-2160.) The statute requires that anyone applying for a license to practice dentistry must show that he is a person of good moral character, implying that only those having that qualification are entitled to practice dentistry. What constitutes good moral character is not easy to determine or define, but upon general principles one who does that which is forbidden and penalized by the law of the land does not possess the character and fitness required by the statute. Whatever is forbidden by law must for the time being be considered as immoral. (In re Spencer, 22 Fed. Cas. 921; 4 Words & Phrases, 3124; 2 Words & Phrases, 2d series, 759.) In Winslow v. Board of Dental Examiners, 115 Kan. 450, 223 Pac. 308, one hav\\u2022ing a license practiced dentistry for a corporation under the name of the corporation. While the practice of the profession under a name other than his own is a specific ground for exclusion from the practice, it was held that the plaintiff's conduct in that respect was \\\"gravely reprehensible from the standpoint of morality.\\\" Likewise it must be held that the admitted violations of law constitute dishonorable conduct within the meaning of the statute under consideration. The legislature appreciated the importance of morality and honor in those practicing dentistry because of the personal contact and close relations which necessarily exist between the dentist and the patient he treats and upon whom he operates, and manifestly intended to exclude from the profession those who fall below the standard of good moral character and honorable conduct. In Winslow v. Board of Dental Examiners, supra, it was said:\\n\\\"Dentistry is a profession having to do with public health, and so is subject to regulation by the state. The purpose of regulation is to protect the public from ignorance, unskillfulness, unscrupulousness, deception and fraud. To that end the state requires that the relation of the dental practitioner to his patients and patrons must be personal.\\\" (p. 451.)\\nThis close relation differs only in degree from that of a physician with his patients, and the good moral character and honorable conduct of the practitioner in either profession are'essential qualifications. (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247.)\\nCounsel refer to certain language relating to conduct of a dentist not connected with his profession, used in Richardson v. Simpson, 88 Kan. 684, 129 Pac. 1128, as being inconsistent with the view we have taken. The expression was only used by way of illustration and is conceded to be obiter dicta. Besides, as we have seen, good moral character is a requisite qualification of a dentist. Being an essential element in his qualifications, his immorality cannot be said to have no connection with the exercise of his profession. The conceded conduct of the defendant involved moral delinquency such as constitutes dishonorable conduct within the meaning of the statute, and warranted the state board of dental examiners in entertaining the complaint made against plaintiff and the revocation of his license.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"271848\", \"name\": \"W. H. Brown et al., Appellees, v. (William Byers) Nellie A. Byers, Appellant\", \"name_abbreviation\": \"Brown v. Byers\", \"decision_date\": \"1925-05-09\", \"docket_number\": \"No. 25,915\", \"first_page\": 503, \"last_page\": \"505\", \"citations\": \"118 Kan. 503\", \"volume\": \"118\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:25:54.234773+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. H. Brown et al., Appellees, v. (William Byers) Nellie A. Byers, Appellant.\", \"head_matter\": \"No. 25,915.\\nW. H. Brown et al., Appellees, v. (William Byers) Nellie A. Byers, Appellant.\\nSYLLABUS BY THE COURT.\\n1. Trial \\u2014 Verdict\\u2014Conflicting Evidence. There was evidence to support the . verdict of the jury although there was evidence contrary thereto. The rule followed that the verdict of a jury will be upheld when it is sustained by evidence.\\n2. Frauds, Statute of \\u2014 When Available. Under the circumstances of this case, the statute of frauds is not available to the defendants as a ground for reversing the judgment rendered against them in the district court.\\nAppeal from Leavenworth district court; James H. Wendorff, judge.\\nOpinion filed May 9, 1925.\\nAffirmed.\\nArthur M. Jackson, of Leavenworth, for the appellant.\\nJ. E. McFadden, and O. Q. Claflin, Jr., both of Kansas City, for the appellees.\", \"word_count\": \"999\", \"char_count\": \"5690\", \"text\": \"The opinion of the court was delivered by\\nMarshall, J.:\\nThe plaintiffs sued to recover on an oral contract alleged to have been made with them by Nellie A. Byers, under which the plaintiffs were to perform services on a farm, for which the plaintiffs were to receive $75 a month as wages, 10 per cent of the wheat, 20 per cent of the corn, and 20 per cent of the hogs raised on the farm during the year covered by the contract, September 1, 1919, to September 1, 1920. The plaintiffs alleged that the contract was made about August 15, 1919. Judgment was rendered in favor of the plaintiffs against Nellie A. Byers, who appeals.\\nThis is the second time this case has been in this court. The first is reported in 115 Kan. 492. There, the judgment was reversed because the jury either disregarded the court's instructions or failed to give proper consideration to' the undisputed testimony in the case.\\nNellie A. Byers argues that there was no evidence to support the verdict of the jury. There was evidence which tended to show that William Byers, for Nellie A. Byers, contracted with the plaintiffs to pay them $75 a month for one year for working on the farm of Nellie A. Byers and to give them 10 per cent of the value of all the wheat, 20 per cent of the value of all the corn, and 20 per cent of the value of all the hogs raised on the farm for one year. Both of the. plaintiffs testified to those facts, but the defendants testified to the contrary. The evidence showed that the plaintiffs worked on the farm from September 1, 1919, to July 3, 1920, and during that time lived \\\"on the premises; that a dispute arose concerning what the plaintiffs were to receive for their services; and that they were then put off the land and were not permitted to perform completely the contract. The controversy at the trial was over the terms of the contract. This is a case Where the jury arrived at a verdict on conflicting evidence and where the verdict was sustained by evidence. Such a verdict is final and conclusive in this court and compels an affirmance of the'judgment unless the statute of frauds compels the court to do otherwise.\\nIt is suggested that, under section 33-106 of the Revised Statutes, the contract is unenforceable because it was not in writing and was not to be performed within one year. We quote from the brief of Nellie A. Byers as follows:\\n\\\"Your honors will observe, too, that the oral contract relied on by plaintiffs could not possibly be performed within one year unless the plaintiffs showed by a preponderance of evidence that they were entitled to their claimed percentage of the value' of the crops and hogs on or before September 1, 1920, and, failing to do this, the oral contract would come within the bar of the statute of frauds of this state.\\\"\\nAll the conditions named by Nellie A. Byers under which she admits the plaintiffs can maintain their action were established by the evidence. The plaintiffs had raised wheat, com, and hogs on the farm and were entitled to their share of what had been raised. Settlement could and might have taken place before September 1, 1920, if the plaintiffs had been permitted to perform fully their contract. The statute of frauds was not-pleaded; no evidence was introduced specifically directed to that question; no instruction was asked concerning it; the attention of the trial court does not appear to have been directed to it; and it was not presented to this court when the case was here before. The question appears to be raised now for the first time. The attention of the trial court should have been directed to this question in order to make it available as a basis for reversing the judgment.\\nThe plaintiffs rendered the major portion of the services required under the contract, although they were ejected from the farm before the contract was fully performed. They had an interest in the wheat, the corn, and the hogs. If Nellie A. Byers is permitted to prevail because the contract did not comply with the statute of frauds, she will commit a fraud on the plaintiffs by inducing them to render service under the contract, by refusing to permit them to comply fully with their contract, by ejecting them from the premises on which the services were to have been rendered, and by not paying them the compensation agreed on.\\nIn 27 C. J. 343, the following language is found:\\n\\\"Where one party to an oral contract has, in reliance thereon, so far performed his part of the agreement that it would be perpetuating a fraud upon him to allow the other party to repudiate the contract and to set up the statute of frauds in justification thereof, equity will regard the case as being removed from the operation of the statute and will enforce the contract by decreeing specific performance of it, or by granting other appropriate relief.\\\"\\nThe present case comes within that rule.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"32984\", \"name\": \"James H. Goldsberry, Appellee, v. Ben E. Ellis, Appellant\", \"name_abbreviation\": \"Goldsberry v. Ellis\", \"decision_date\": \"1964-04-11\", \"docket_number\": \"No. 43,527\", \"first_page\": 703, \"last_page\": \"705\", \"citations\": \"192 Kan. 703\", \"volume\": \"192\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:01:09.533304+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fontron, J., not participating.\", \"parties\": \"James H. Goldsberry, Appellee, v. Ben E. Ellis, Appellant.\", \"head_matter\": \"No. 43,527\\nJames H. Goldsberry, Appellee, v. Ben E. Ellis, Appellant.\\n(391 P. 2d 45)\\nOpinion filed April 11, 1964.\\nEarl C. Moses, Jr., of Great Bend, was on the brief for the appellant.\\nVincent G. Fleming, of Lamed, argued the cause, and was on the brief for the appellee.\", \"word_count\": \"624\", \"char_count\": \"3670\", \"text\": \"The opinion of the court was delivered by\\nWertz, J.:\\nThis is an appeal from an order of the trial court refusing to vacate a judgment. The pertinent facts follow.\\nOn August 6, 1962, defendant was incarcerated in the county jail. On August 8 plaintiff (appellee) James H. Goldsberry brought this action against defendant (appellant) Ben E. Ellis to recover $1,240 for salary and commissions due him from defendant. Summons was issued and served on defendant.\\nAt the time of his incarceration defendant was operating the Lois Motor Company and had placed in charge of the business one Theron Randall and defendant's wife. During the pendency of the action defendant, his wife and his manager, Randall, had a conference and worked out a settlement of plaintiff's claim. Defendant's wife negotiated the plan of payment of the claim and defendant's manager signed the settlement papers. Neither the defendant nor anyone on his behalf ever entered an appearance in the action.\\nSubsequently, on October 2, 1962, judgment was rendered by default in favor of the plaintiff and against the defendant for the full amount of the claim, less credit for the payments which were made by defendant's wife in partial compliance with the agreed settlement.\\nOn October 16 the defendant filed a petition in the same action to vacate the judgment rendered by reason of unavoidable casualty or misfortune (G. S. 1949, 60-3007, Seventh) preventing him from defending the action for the reason of his incarceration in the county jail.\\nFrom an order of the trial court denying defendant's petition to vacate the judgment, he appeals.\\nWe will not burden our reports with contentions advanced by defendant with respect to his claim that due to unavoidable casualty and misfortune he was prevented from defending the action. Suffice it to say that the rule is settled in this state that a litigant cannot invoke the code provision (G. S. 1949, 60-3007, Seventh) for relief on the ground of unavoidable casualty or misfortune preventing a defense where he has, during the entire pendency of the action, made no appearance and has been manifestly negligent, guilty of laches, lacking in diligence, careless, hurried, or mistaken in the preparation of his defense. (Gooden v. Lewis, 101 Kan. 482, 167 Pac. 1133; Anchor Savings & Loan Ass'n v. Dysart, 189 Kan. 147, 152, 368 P. 2d 293, and cases therein cited.)\\nIn Stockgrowers State Bank v. Clay, 150 Kan. 93, 95, 90 P. 2d 1102, in quoting from Hill v. Williams, 6 Kan. 17, it was stated that when unavoidable casualty or misfortune is alleged, the facts must be so stated as to make it appear that no reasonable or proper diligence or care could have prevented the trial or judgment; that is, that the party complaining is not himself guilty of any laches.\\nThe record discloses that defendant was served by summons; that he employed no attorney and made no appearance but utterly disregarded the action. He sought no relief from the court by way of an appearance. He sought no continuance but entered into a settlement of the action through his manager and wife, and the judgment was entered in accordance therewith. Under such facts it cannot be said he was denied the right to defend the action by reason of unavoidable casualty or misfortune.\\nIn view of what has been said, the judgment of the trial court must be affirmed.\\nIt is so ordered.\\nFontron, J., not participating.\"}"
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+"{\"id\": \"344587\", \"name\": \"The Missouri Pacific Railway Company et al. v. J. C. Henrie\", \"name_abbreviation\": \"Missouri Pacific Railway Co. v. Henrie\", \"decision_date\": \"1896-12-03\", \"docket_number\": \"No. 167\", \"first_page\": 614, \"last_page\": \"621\", \"citations\": \"5 Kan. App. 614\", \"volume\": \"5\", \"reporter\": \"Reports of cases decided in the Courts of Appeals of the state of Kansas\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:06:44.221702+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Missouri Pacific Railway Company et al. v. J. C. Henrie.\", \"head_matter\": \"The Missouri Pacific Railway Company et al. v. J. C. Henrie.\\nNo. 167.\\n1. Purchaser or Railroad \\u2014 at mortgage sale, gets only \\u2018property rights of original company. Where a railroad, together with all of the company\\u2019s rights and privileges, is sold on a foreclosure of a mortgage, the purchaser at such sale acquires only such rights to the property sold as the original company possessed.\\n2. -is liable on original company's obligation for purchase of right of way. Purchasers of a railroad and its franchises are liable for the unpaid condemnation money for such right of way as passes with the road, and for the .unpaid obligations of the original company for such right of way as it may have acquired by purchase and which passed with the sale of the road.\\n3. - but having no knowledge of, and not assuming original company's parol contract, not liable thereon. Purchasers of a railroad and its franchises are not liable to pay the .value of life passes to be given by the original company in consideration of a parol license to build and operate a road over certain premises, where the purchasers had no knowledge of the parol contract at the time of purchase or while using such premises, and where they have in no manner ever ratified such contract or assumed its obligation.\\nError from Butler District Court. Hon. C. A. Leland, Judge.\\nOpinion filed December 3, 1896.\\nReversed.\\nJ. E. Richards, and G. E. Benton, for plaintiffs in error.\\nRedden & Schumacher, for defendant in error.\", \"word_count\": \"2381\", \"char_count\": \"13249\", \"text\": \"Johnson, P. J.\\nThe plaintiffs in error make ten separate assignments of error in their brief as reasons why the judgment of the District Court should be reversed. We will consider only so much of the errors complained of as will be sufficient to determine the real matters in controversy in this case.\\nThe plaintiff below brought his action in the District Court of Butler. County, to recover damages for the failure of the defendants below to carry out the terms and conditions of a parol license granted to the St. Louis, Port Scott & Wichita Railroad Company, by which the company was permitted to build and operate its line of railroad over and across the plaintiff's land. In consideration of the license to so build and operate its road over his land, the company agreed to give him and his wife passes over its line of railroad in Kansas, so long as it continued to maintain and operate its road over his premises. The St. Louis, Port Scott & Wichita Railroad Company constructed its road over the plaintiff's land and operated it for about four years, when the road went into the hands of a receiver; the mortgage was foreclosed and the road, with all its rights and franchises, was sold. This was in 1887. The defendants below became the owners thereof and took possession of the road and have operated the same ever since. The original company obtained no other right over the lands of the plaintiff below than the mere parol license to build and operate its road over his land on consideration of giving him and his wife passes over its line of road ; it continued to give him and his wife passes so long as it owned and operated the road. The plaintiff below contends that, when the road was sold and the present owners and operators of the road purchased it and its rights and privileges and went into possession, they became liable for the burdens of the original company, for its obligations for right of way and for the license to operate its line of road over the lands upon which its road was constructed. When the present owners purchased the property at the master's sale on foreclosure of the mortgage, they acquired no greater rights in the property than the original company had. They acquired no title to the property of the plaintiff below. Did they become liable to carry out the parol obligations of the original company, and furnish passes to the plaintiff below and his wife, so long as they should desire to use the same?\\nThe petition of the plaintiff below in substance alleges : That in the year 1882 the St. Louis, Fort Scott & Wichita Railroad Company entered upon said land without having condemned the same, and without having obtained any title to it, and constructed its railroad; that said company continued to use said roadbed and its right of way over said lands under a parol license made with defendant in error; that in consideration of said license said St. Louis, Fort Scott & Wichita Railroad Company was to furnish him and his wife with annual passes in the State of Kansas, over its road, during their natural lifetimes; that passes were issued by said company to him until about January, 1887, when said railroad was placed in the hands of a receiver ; that afterwards one of these plaintiffs in error, the Fort Scott, Wichita & Western Railway Company, became the owner and succeeded to the rights and property of the St. Louis, Fort Scott & Wichita Railway Company, and, together with the Missouri Pacific Railway Company, continuously operated and owned said road since the sixth day of July,' 1887 ; that said defendants, plaintiffs in error, neglected and refused to furnish him and his wife annual passes entitling them to ride over their line of road; that said plaintiffs in error converted the pretended right of way and roadbed upon and through the lands described in the said petition to their own use, without consent of the defendant in error and without making any compensation therefor.\\nThe petition charges the defendants below with a trespass in taking possession of the right of way without the plaintiff's consent, and with appropriating the right of way to their own use. It is difficult to determine whether plaintiff below intended to charge a permanent appropriation of the property by the defendants below, or to simply charge the taking of the privilege granted to the original company. It is not alleged or claimed that either of the defendants in error was a party to the contract, or that they had any notice whatever of such a contract at the time they became the purchasers of the road, or that they ever in any manner ratified the same or assumed the obligations thereof. Plaintiff below seeks to recover against the defendants below merely because they became the owners of the road, its rights and franchises, by purchase at foreclosure sale, and because they took possession of and operated the same.\\nThe defendants below disclaim any right, claim or interest under the parol license ; they repudiated such contract and insisted that the original railroad company held the right of way under a different contract and that the same had been fully paid for. Can it be said that, having no knowledge of such contract as claimed by the plaintiff below, they could be held liable for the performance of a mere parol license to further occupy the premises? Being railroad com panies they would have the right, after they discovered that there was no title to some portion of the land over which their road was located, to acquire the same by the exercise of the right of eminent domain \\u2014 to have the same condemned by commissioners under the law. The defendants below, not having acquired the title to the right of way by their purchase, did not thereby become entitled to the use of the property, and the plaintiff below was entitled to just compensation for the same in case he elected to treat it as a permanent appropriation.\\nThe court below proceeded in the trial of this case on the theory that the original company had acquired title to the property, and had not complied with the terms and conditions upon which the right of way had been acquired. There could scarcely be any question as to the obligation of the purchasers of a railroad to the original owner of the right of way, where tliere was a conveyance, or judgment of condemnation, of the property and the conditions or judgments had not been complied with by the original company. Where the condemnation money has not been paid, or where the original company has entered into a written obligation for the purchase of the right of way and the right of way passes with the road, the purchaser takes the property burdened with the obligation of the original company; but. where the purchaser of the road and its property acquires no right in the land over which a part of the road is constructed, it is not bound to continue its road over such premises and to carry out an oral promise of the original company for a license to use the laud. But, if the original owner of the land is willing to treat the possession of the premises by the purchaser as a permanent appropriation, he would then he entitled to recover the value of the land appropriated and the damages to the entire tract from which it is so taken.\\nWe think the court below tried this case on the wrong theory of the law. The original railroad company not having acquired the right of way over the land of the plaintiff below, he had the right to treat the use of the land by the defendants below as a permanent appropriation of the right of way and sue the present owners of the road for the value of the strip of land so occupied and used by them, and for the damages to the residue of the tract of land from which it had been.taken; or he might bring his action for a simple trespass and recover from them the damages that he had suffered by reason of the wrongful acts committed in the use of his land ; or he might bring suit in ejectment for the recovery of the possession of the same, and for damages for the wrongful detention thereof. In no event could the plaintiff below recover for the value of a life pass over the line of the road of the defendants below. The evidence of the plaintiff below clearly proves that no such agreement was ever made or even contemplated. lie says in his testimony :\\n\\\" Q,. You may state what contract or what arrangement, if any, you had with Mr. Tiernan or Mr. Marshall, the officers of the first road, the St. Louis, Ft. Scott & Wichita, relative to compensation and pay for the right of way that was taken off your place. A. Do I understand you want me to give the history?\\n\\\" Q. Yes, sir, of the agreement you had, how you were to be compensated. A. Why, Mr. Tiernan and I talked the matter over and I asked about this right of way. I told him I wanted a pass for myself and wife, and he said, I cannot give it to you in annual passes; I will give it to you quarterly, and when it has run out send it in or come in and I will give you a new one.\\n\\\" Q. What was the consideration ; what were you to do ; what were they to get? A. This right of way.\\n\\\" Q. What was said as to the length of time ; how long was he to give these passes? A. As long as they used the land.\\n\\\"Q. As long as what? A. As long as the railroad company used the land and as long as I wanted passes.\\\"\\nThis is all the evidence given, tending in any manner to prove an agreement to give passes for the' license to build and operate the road over the plaintiff's land. No agreement was ever made to issue life passes in consideration of the right of way over the land in controversy, and it was error in the count to instruct the jury as follows :\\n\\\" 1. You are instructed that a purchaser at a sale of the St. Louis, Fort Scott & Wichita Railroad, if you find that there had been a sale, would receive by such purchase just such rights as the St. Louis, Fort Scott & Wichita Railroad Company had in the lands in controversy, and no more ; and by the terms of the purchase would be bound for the payment of the purchase money the same as the St. Louis, Fort Scott & Wichita Railroad Company itself would have been if it had continued to own and to operate and occupy the road.\\n\\\" 2. Before the plaintiff can recover in this action he must show by a preponderance of the evidence, that he was the owner of the land in controversy; that he made a contract for the right of way, as alleged by him, with the St. Louis, Fort Scott & Wichita Railroad Company ; that for that right of way he was to have a life pass for himself and wife over said road, either delivered as a life pass at the time, or quarterly, or annually; that the defendants, the Fort Scott, Wichita & Western Railway Company, and the Missouri Pacific Railway Company, or either of them, subsequently became the owners of said rail road, and have operated it over the land in controversy the same as the St. Louis, Fort Scott & Wichita Railroad Company originally did; and also he must show to you by a preponderance of the evidence the value of such passes \\u2014 what they would have been worth.\\\"\\nWe do not think in any event the defendants below were liable to pay for the use of the strip of land the value of life passes. Not having been parties to any such contract, and not having purchased and used the road with knowledge of any agreement, they could not be held for its non-fulfillment. As this judgment will have to be reversed for the errors already indicated we do not think it necessary to decide other questions which are raised in the brief of counsel and urged in the argument of this case to the court, especially as none of these are liable to come up in the future trial of this case.\\nThe judgment of the District Court is reversed and the case remanded for a new trial.\"}"
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+"{\"id\": \"348470\", \"name\": \"John C. Douglass v. The City of Leavenworth et al.\", \"name_abbreviation\": \"Douglass v. City of Leavenworth\", \"decision_date\": \"1897-07-16\", \"docket_number\": \"No. 435\", \"first_page\": 96, \"last_page\": \"100\", \"citations\": \"6 Kan. App. 96\", \"volume\": \"6\", \"reporter\": \"Reports of cases decided in the Courts of Appeals of the state of Kansas\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:15:31.066279+00:00\", \"provenance\": \"CAP\", \"judges\": \"McElroy, J., concurring.\", \"parties\": \"John C. Douglass v. The City of Leavenworth et al.\", \"head_matter\": \"John C. Douglass v. The City of Leavenworth et al.\\nNo. 435.\\n1. Public Nuisance \\u2014 private party may bring action to abate. A private party whose property is specially, peculiarly and injuriously affected by the erection and maintenance of a public nuisance, may maintain an action to abate the same and restrain the maintenance .thereof.\\n2. - city has no authority to authorize the construction and maintenance of. The erection and maintenance of a depot building upon a public street in a city of the first class consti tutes a public nuisance, and a city council of such city cannot by ordinance lawfully authorize the construction and maintenance of such nuisance.\\nError from Leavenworth District Court. Hon. Robert Crozier, Judge.\\nOpinion filed July 16, 1897.\\nReversed.\\nJohn C. Douglass, for himself.\\nJ. W. Haussermann, City Attorney, and J. H. Wendor ff, for defendant in error.\", \"word_count\": \"1166\", \"char_count\": \"6630\", \"text\": \"Mahan, P. J.\\nThis is an action in the nature of a bill in equity to restrain and abate a public nuisance. The plaintiff declares he is the owner of certain lots on Main and Delaware Streets in the City of Leavenworth ; that the defendants, the City of Leavenworth and the Leavenworth Depot & Railroad Company, are maintaining a public nuisance by the erection of a passenger depot and stone wall surrounding it, upon the street adjacent to his property, by which he had access to and from his property and the wharf upon the Missouri River, used for steamboat landings ; and prays for the abatement of the nuisance and an injunction restraining the defendants from maintaining it.\\nA demurrer to the petition was sustained upon the ground that the petition does not state a cause of action.\\nThe plaintiff sets out in his petition an ordinance of the City of Leavenworth, authorizing the Depot & Railroad Company to construct the passenger depot upon that part of Delaware Street lying within the east line of Main Street and the west line of the Missouri River, parallel' therewith. The ordinance also provides that the Company may lay and maintain rail road tracks, for connection with the depot, upon and across Water Street, within certain limits.\\nThe allegation of the petition is that the depot and the tracks in connection therewith, occupy the entire street immediately in front of the plaintiff's property, and all of the street lying between his property and the river, so as to cut off access to the front of the building. Water Street, according to the allegations of the petition and the map accompanying the same, lies parallel with Main Street. The plaintiff's property is situated between Main and Water Streets, extending from one to the other, with two fronts, one on Main and the other on Water Street. The front on Water Street is three stories high and the one on Main Street is two stories high. The property is a business property, used for a storeroom and warehouse. Before the construction of this depot, the plaintiff had, from the east front, the Water Street front, of his building, access directly to the river and to the steamboat landing, by means of drays, for the purpose of carrying drayage to and from steamboats and his warehouse.\\nThe petition alleges the construction and maintenance of a public nuisance. It further alleges a special and individual injury to the plaintiff's property, occasioned by the nuisance, and that the right to the use of the street, which was dedicated in the ordinary mode by the making and the filing of the plats in fee, had inured to the plaintiff more than thirty years ago, and long prior to the passage of the ordinance and the construction of the nuisance. So that the plaintiff contends by his petition that the ordinance is void because it is an attempted invasion of the vested rights of the plaintiff in the use of the street, which is held iii trust by the Board of County Commissioners for the use of the public as well as himself.\\nIt seems to be pretty well settled that a public nuisance may be abated by a bill in equity, or a petition in the nature of a bill in equity, by a private party who has suffered special damages by reason of the nuisance ; but it is necessary that the plaintiff in such petition should show that he has sustained and is still sustaining individual injury thereby.\\nThe Supreme Court of the United States, in Mississippi and Missouri R. Rld. Co. v. Ward (2 Black [67 U. S.] 485), so holds, and says : \\\" The private party, though nominally suing on his own account, acts rather as a public prosecutor on behalf of all who are or may be injured.\\\" And it seems also to be well-settled law that a municipal corporation, like a city of the first or second class, under the Kansas statute, cannot authorize the establishment and maintenance of a public nuisance under such circumstances ; that it cannot, where vested rights have inured, as in this case, even vacate the street, to the injury of the abutting property holders. In addition to the above case, the following are important cases bearing upon these propositions. Upon the question of the invalidity of such an ordinance, see Baltimore & Potomac Rld. Co. v. Fifth Baptist Church, 108 U. S. 317; Comm'rs of Franklin v. Lathrop, 9 Kan. 453; Board of Education, etc., v. Edson et al., 18 Ohio St. 221; Pumpelly v. Green Bay Company, 13 Wall. 166; Frith v. City of Dubuque et al., 45 Iowa, 406; Cadle v. The Muscatine Western Rld. Co., 44 id. 11; Babcock v. New Jersey Stock Yard Co., 20 N. J. Eq. 296; Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625. Upon the first question above presented, see Woodruff v. N. Bloomfield G. M. Co., 18 Fed. Rep. 753; Cemetery Assoc'n v. Meninger, 14 Kan. 312; Barclay et al. v. Howell's Lessee, 6 Pet. 498; Leffler v. The City of Burlington, 18 Iowa, 361; Brown v. Manning, 6 Ohio, 298; O. O. C. & C. G. Rld. Co. v. Larson, 40 Kan. 301; Leclerq v. Gallipolis, 7 Ohio, 217; Osborne v. Mo. Pac. Rld. Co., 147 U. S. 248. The last case holds, also, that where .the injury is continuing in its nature and injurious in its character, or inflicts an irreparable injury, an action at law for damages is not an adequate remedy. See also Park v. The C. & S. W. Rld. Co. et al., 43 Iowa, 636; Heller v. A. T. & S. F. Rld. Co., supra;\\nThere is but one other question that can present itself in this case, and that is- as t-o the laches of the plaintiff. This, however, seems to be more in the nature of a defense than otherwise, and does not arise upon the demurrer to the plaintiff's petition.\\nThe petition sufficiently states a cause of action, and the judgment of the District Court sustaining the demurrer is reversed.\\nMcElroy, J., concurring.\\nWells, J., dissenting.\"}"
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+"{\"id\": \"348514\", \"name\": \"The City of Emporia v. Fred Haussler\", \"name_abbreviation\": \"City of Emporia v. Haussler\", \"decision_date\": \"1897-11-16\", \"docket_number\": \"No. 578\", \"first_page\": 747, \"last_page\": \"750\", \"citations\": \"6 Kan. App. 747\", \"volume\": \"6\", \"reporter\": \"Reports of cases decided in the Courts of Appeals of the state of Kansas\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:15:31.066279+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The City of Emporia v. Fred Haussler.\", \"head_matter\": \"The City of Emporia v. Fred Haussler.\\nNo. 578.\\n1. Criminal Practice \\u2014 judgment or verdict may be pronounced at term succeeding conviction. Where, after a verdict of guilty in an action against appellant for selling liquor in violation of a city ordinance, the court adjourned sine die and sentence was pronounced on the verdict at the next regular term of the court; and where, at said subsequent term of court, appellant filed a motion in arrest of judgment, with a purported bill of exceptions annexed thereto, setting forth that the court had adjourned at the former term a day earlier than counsel for plaintiff and for defendant had expected, that in consequence no bill of exceptions was prepared, and that the court had, by such adjournment before pronouncing sentence, lost jurisdiction to do so, held, that the motion states no statutory grounds for arrest of judgment, and that the same was properly overruled.\\n2. Bill op Exceptions \\u2014 allowed and signed at term succeeding one at which verdict was rendered, not considered. Where the trial court allowed and signed the purported bill of exceptions _ at such succeeding term, held, that the same cannot be considered by the Appellate Court. 'The State v. Smith, 38 Kan. 194.\\nAppeal from Lyon District Court. Hon. W. A. Randolph, Judge.\\nOpinion filed November 16, 1897.\\nAffirmed.\\nJ. Jay Buck, City Attorney, and Buck & Spencer, for appellee.\\nH. D. Dickson, for appellant.\", \"word_count\": \"1083\", \"char_count\": \"6281\", \"text\": \"Milton, J.\\nOn February 15,1895, a complaint was filed before the police judge of the City of Emporia, charging Fred Haussler with violating an ordinance of said City prohibiting the unlawful selling of intoxicating liquors. He was convicted, and appealed to the District Court, where he was tried by a jury and again convicted. The verdict was rendered on May 14, 1895, and a motion for a new trial was filed the same day. On July 17, and at the same term of court, this motion was overruled. He seeks a review of the trial court's proceedings. The errors complained of .are three : First, the court erred in not granting the motion for a new trial; second, the court, having failed and neglected to render judgment during the term, thereby lost jurisdiction to render the same, and it was in effect a mistrial; third, the verdict was contrary to the evidence.\\nIn support of the first proposition, attention is called to the following verified motion, which was filed by defendant on October 2, 1895, during the September term of court:\\n\\\" Comes the defendant above named and moves the court for arrest of judgment in the above-entitled action and for the discharge of defendant, for the reasons following :\\n\\\"At the regular May, 1895, term of court the defendant was, by a jury, found guilty of the violation of a city ordinance of the City of Emporia, in said county; that defendant's counsel, in good faith believing that there was one day more of the said term of court, failed and neglected to file, serve and have allowed a bill of exceptions taken during the trial of said cause ; that the city attorney, in like manner, did not attend said last day of the term of the said court, under a similar belief, and the said term expired and no sentence or judgment was pronounced on the verdict rendered in the said cause at the said term, and the court, because thereof, lost jurisdiction so to do.\\n\\\" In support of this motion, the defendant refers to and makes a part of this motion the complaint, warrant, motion to quash, verdict, motion for a new trial, and all the pleadings and processes filed and issued herein, together with the orders of the court in said action, and makes the same a part of this'motion by said reference. Graves, Lambert & Dickson,\\nAttorneys for Defendant.\\n\\\"Fred Haussler, being first duly sworn, deposes and says, that the allegations of fact contained in the foregoing motion are true as he verily believes.\\nF. Haussler.\\n\\\"Subscribed and sworn to before me, this second day of October, 1895. G. L. Miller,\\n[SEAL.] Clerk District Court, Lyon County, Kansas.\\\"\\nThis motion does not present either of the two statutory grounds in arrest of a judgment, those grounds being, first, that the grand jury which found the indictment had no legal authority to inquire into the offense charged, and second, that the facts stated do not constitute a public offense.\\nThe record before us purports to contain a bill of exceptions which was allowed and signed by the trial \\u00edudg6 on 0ctober 5, 1895, during the September term of court. This record shows that the complaint was not attacked by motion to quash, and no motion in arrest of judgment upon the statutory grounds was filed. The motion sought the discharge of defendant on the ground that the court had no jurisdiction to pronounce sentence upon the verdict, after the expiration of the term of court at which it was returned. It presents no other question.\\nNo authorities are cited by counsel, for appellant in support of the proposition. We find no statute which requires that sentence shall be pronounced against a convicted party during the term of court at which the verdict is rendered, and discover no good reason for holding against the jurisdiction of the court to enter judgment at the ensuing term. Its action in the premises will be sustained.\\nWe are not aware of any statute or decision which would warrant a consideration by this court of the purported bill of exceptions. The statute c\\u00a1ear2y againsj; the proposition. Paragraphs 4394 and 4395 of the General Statutes of 1889 are as follows :\\n\\\"4394. 'An exception is an objection taken to a decision of the court or judge upon a matter of law.\\n\\\"4395. The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term. If the decision objected to is made in vacation or at chambers, the judge may give time to reduce the exception to writing, not exceeding ten days.\\\"\\nOur Supreme Court, in The State v. Smith (38 Kan. 194), declared:\\n' 'A bill of exceptions which is not presented, allowed, signed and filed until after the final adjournment of the term of the court at which the trial was had, cannot be regarded as a part of the record.\\\"\\nNo error in the action of the trial court appearing, its judgment is affirmed.\"}"
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+"{\"id\": \"355363\", \"name\": \"Expert Environmental Control, Inc., Appellant, v. Jack D. Walker, Secretary of Health and Environment, and the Kansas State Department of Health and Environment, Appellees\", \"name_abbreviation\": \"Expert Environmental Control, Inc. v. Walker\", \"decision_date\": \"1988-09-23\", \"docket_number\": \"No. 61,560\", \"first_page\": 56, \"last_page\": \"59\", \"citations\": \"13 Kan. App. 2d 56\", \"volume\": \"13\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T20:25:33.201729+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Rulon, P.J., Six and Elliott, JJ.\", \"parties\": \"Expert Environmental Control, Inc., Appellant, v. Jack D. Walker, Secretary of Health and Environment, and the Kansas State Department of Health and Environment, Appellees.\", \"head_matter\": \"(761 P.2d 320)\\nNo. 61,560\\nExpert Environmental Control, Inc., Appellant, v. Jack D. Walker, Secretary of Health and Environment, and the Kansas State Department of Health and Environment, Appellees.\\nOpinion filed September 23, 1988.\\nDan E. Turner, of Topeka, for appellant.\\nYvonne C. Anderson, of Kansas Department of Health and Environment, for appellee.\\nBefore Rulon, P.J., Six and Elliott, JJ.\", \"word_count\": \"1141\", \"char_count\": \"7067\", \"text\": \"Rulon, J.:\\nExpert Environmental Control, Inc., (Expert) appeals the district court's dismissal of its petition for judicial review for lack of jurisdiction based on Expert's failure to exhaust administrative remedies. We find no reversible error and affirm.\\nThe undisputed facts of this case are as follows:\\nIn July 1986, the Kansas Department of Health and Environment (KDHE) issued an administrative order assessing a civil penalty against Expert for claimed violations of the Kansas asbestos control regulations. The violations involved noncompliance with required work practices for the removal and handling of asbestos material and waste. Expert's appeal rights were clearly stated in the administrative order assessing the civil penalties. Expert appealed the order and an administrative hearing was conducted on October 30, 1986. The hearing officer mailed his order on April 2, 1987. Again, Expert's appeal rights were clearly stated in the administrative order, specifically noting a 15-day limitation for filing a petition for review with the Secretary of KDHE.\\nOn April 27, 1987, 25 days after the administrative order was issued, KDHE received Expert's petition for review of the April 2,1987, administrative order. Less than two weeks later, on May 4, 1987, Expert filed a petition for judicial review in the District Court of Shawnee County. KDHE filed a motion to dismiss Expert's petition for judicial review asserting that Expert failed to exhaust its administrative remedies because the Secretary had not been afforded the opportunity to rule on Expert's petition for review filed with KDHE. Expert's response to KDHE's motion to dismiss claimed that the KDHE hearing officer failed to issue the agency's order within 30 days as required by K.S.A. 1987 Supp. 77-526(g) and failure to do so rendered the April 2, 1987, order void for lack of jurisdiction. Expert further claimed that because KDHE had no jurisdiction to issue an order after 30 days, the petitioner was not required to file a petition for review with the Secretary.\\nThe district court ruled that a petition for review by the Secretary was a mandatory jurisdictional prerequisite to judicial review and dismissed Expert's petition. We agree.\\nAn appeal from the imposition of an administrative civil penalty is governed by the Kansas Administrative Procedure Act, K.S.A. 1987 Supp. 77-501 etseq. The Act creates only procedural rights and imposes only procedural duties. K.S.A. 1987 Supp. 77-503(b).\\nAfter a hearing is held pursuant to the Act, \\\"[a] final order or initial order pursuant to this section shall be rendered in writing and served within 30 days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f) unless this period is waived or extended with the written consent of all parties or for good cause shown.\\\" K.S.A. 1987 Supp. 77-526(g).\\nIn the present case, the hearing was held October 30, 1986, and the initial order was not rendered until April 2, 1987, 154 days after the hearing. Expert contends that because the order was not rendered in 30 days, the agency lost jurisdiction over the matter and the order was void. This contention is not persuasive. The 30-day limit in K.S.A. 1987 Supp. 77-526(g) is not mandatory nor does the agency's failure to timely render the order deprive the agency of jurisdiction.\\n\\\"In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system, and dispatch of the public business, the provision is directory.\\\" (Emphasis added.) Paul v. City of Manhattan, 212 Kan. 381, Syl. \\u00b6 1, 511 P.2d 244 (1973).\\nIn Paul, the court identified two factors that aid in determining whether the statute is mandatory:\\n\\\"Factors which would indicate that a statute or ordinance is mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance.\\\" 212 Kan. 381, Syl. \\u00b6 2.\\nK.S.A. 1987 Supp. 77-526(g) permits the 30-day period to be \\\"waived or extended with the written consent of all parties or for good cause shown.\\\" The statute, however, does not include negative words requiring that the order be rendered in no other manner or at no other time. More significantly, there is no penalty provision or consequence of noncompliance.\\nIf the 30-day period is not waived or extended with the written consent of all parties, as in the instant case, unquestionably the better practice would be for the agency, when rendering an order beyond the 30-day period, to state the cause of the delay. Agency delay, however, does not deprive the agency of jurisdiction nor does it render the order void. The 30-day time limit is a procedural requirement, directory in nature, intended to secure order, system, and forthwith dispatch of public business.\\nExpert next contends that it was not required to seek agency review of the April 2, 1987, order because the agency's failure to comply with the 30-day time limit deprived the agency of jurisdiction. We disagree. A petition for judicial review may be filed \\\"only after exhausting all administrative remedies available within the agency whose action is being challenged.\\\" K.S.A. 77-612. Further support for the exhaustion principle is found in K.S.A. 77-607, which expressly allows review of only \\\"final\\\" agency action. Additionally, the Judicial Review Act provides for limitations on new issues; K.S.A. 1987 Supp. 77-617 permits judicial review only of issues raised before the agency and is further support for the exhaustion principle.\\nIn the present case, the Secretary did not have the opportunity to rule on Expert's allegation that the April 2, 1987, order was void for lack of jurisdiction due to unexplained agency delay. Pursuant to K.S.A. 77-607 and K.S.A. 77-612, this matter was not properly before the district court and, pursuant to K.S.A. 1987 Supp. 77-617, the issue of agency jurisdiction, which is Expert's only hope of avoiding the penalty, was not properly before the district court. Expert failed to exhaust administrative remedies and the district court properly dismissed this appeal.\\nBecause our decision on the exhaustion issue is dispositive of this appeal, we shall not address the other issues raised by the appellant.\\nAffirmed.\"}"
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+"{\"id\": \"363825\", \"name\": \"State of Kansas, Appellee, v. Gary Bost, Appellant\", \"name_abbreviation\": \"State v. Bost\", \"decision_date\": \"1995-09-08\", \"docket_number\": \"No. 72,449\", \"first_page\": 560, \"last_page\": \"572\", \"citations\": \"21 Kan. App. 2d 560\", \"volume\": \"21\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:08:44.459743+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Elliott, P.J., Gernon, J., and D. Keith Anderson, District Judge, assigned.\", \"parties\": \"State of Kansas, Appellee, v. Gary Bost, Appellant.\", \"head_matter\": \"(903 P.2d 160)\\nNo. 72,449\\nState of Kansas, Appellee, v. Gary Bost, Appellant.\\nOpinion filed September 8, 1995.\\nThomas DeCoursey, of Kansas City, for appellant.\\nLarry Hoffman, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, for appellee.\\nBefore Elliott, P.J., Gernon, J., and D. Keith Anderson, District Judge, assigned.\", \"word_count\": \"4210\", \"char_count\": \"25556\", \"text\": \"Anderson, J.:\\nThe facts in this case are for the most part undisputed. However, the sequence and timing of events are critical for jurisdictional purposes.\\nOn September 20, 1993, Gaiy Bost was charged in Wyandotte County with one count of aggravated robbery, a severity level 3 person felony in violation of K.S.A. 1993 Supp. 21-3427, for incidents occurring the previous day. Bost entered a plea of no contest to an amended charge of robbery, a severity level 5 person felony in violation of K.S.A. 1993 Supp. 21-3426.\\nThe presentence investigation (PSI) report prepared prior to sentencing indicated that Bost's conviction of robbery carried a crime severity level 5 ranking. Due to a multitude of DUI and DUI-related offenses, all misdemeanors, Bost's criminal history placed him in category H. The PSI report denoted that a placement of 5-H on the nondrug sentencing guidelines grid carried a presumptive sentencing range of 34 to 38 months' imprisonment.\\nThe court sentenced Bost to 36 months' imprisonment on March 28, 1994. The court filed its journal entry of sentencing on April 11,1994. The journal entry reflects that the court's decision mirrors the PSI report and found Bost to be classified as 5-H on the non-drug sentencing guidelines grid.\\nAfter the sentencing hearing on April 5, 1994, Bost filed a motion for modification of sentence and/or downward departure. Bost alleged he played a minor role in the crime, that the degree of harm to the victim was much less than in typical or common cases of this offense, and that he was no threat to society. Following a hearing on July 19, 1994, the district court filed an order July 25, 1994, denying Bost's motion.\\nBost filed a notice of appeal on July 28,1994. Bost appealed the sentence entered on March 28, 1994, and the denial of his motion to modify and/or grant probation.\\nStandard of Review\\nAll issues before the court are jurisdictionally determinable.\\nResolving jurisdictional issues under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1994 Supp. 21-4701 et seq., involves the interpretation of various provisions. The interpretation of statutes is a question of law, and, thus, this court's scope of review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).\\nNotice of Appeal\\nThis court raised various jurisdictional issues and ordered parties to address them in their appellate briefs. The first jurisdictional issue involves the timeliness of Bost's notice of appeal. Bost argues that he timely filed his notice of appeal since the district court did not render final judgment until it ruled on his motion to modify.\\n\\\"The filing of a timely notice of appeal is jurisdictional.\\\" State v. Moses, 227 Kan. 400, Syl. \\u00b6 8, 607 P.2d 477 (1980). \\\"The right to appeal is entirely statutory and not a right vested in the United States or Kansas Constitutions. Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by applicable statutes.\\\" State v. Neer, 247 Kan. 137, Syl. \\u00b6 1, 795 P.2d 362 (1990).\\nWith the implementation of the sentencing guidelines in 1993, the time in which a defendant may appeal judgments of the district court underwent a drastic change. K.S.A. 1994 Supp. 22-3608 provides in full:\\n\\\"(a) If sentence is imposed, the defendant may appeal from the judgment of the district court not later than 10 days after the expiration of the district court's power to modify the sentence. The power to revoke or modify the conditions of probation or the conditions of assignment to a community correctional services program shall not be deemed power to modify the sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.\\n\\\"(b) If the imposition of sentence is suspended, the defendant may appeal from the judgment of the district court within 10 days after the order suspending imposition of sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1,1993.\\n\\\"(c) For crimes committed on or after July 1,1993, the defendant shall have 10 days after the judgment of the district court to appeal.\\\" (Emphasis added.)\\nIn the case before the court, the district court imposed sentence on March 28, 1994. Bost filed a motion to modify the sentence on April 5,1994. The court denied the motion to modify the sentence on July 25, 1994. On July 28, 1994, exactly four months following the court's imposition of sentence from the bench, Bost filed his notice of appeal.\\nBost argues K.S.A. 1994 Supp. 22-3608(c) limits appeals from a judgment; but K.S.A. 1994 Supp. 22-3601(a) expressly permits appeal from a \\\"final judgment.\\\" Consequently, Bost argues that since the district court considered arguments and issued a ruling on his post-sentencing motions, no final judgment was entered until the court denied his motion to modify on July 25, 1994. Under such a scenario, had Bost committed the crime in this case prior to July 1,1993, his notice of appeal would then be timely since it was filed within 10 days of the denial of the motion to modify.\\nBost's argument fails to take into consideration some of the general rules of statutory construction:\\n\\\"Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.\\\" West v. Collins, 251 Kan. 657, Syl. \\u00b6 3, 840 P.2d 435 (1992).\\nAdditionally, \\\"[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.\\\" Martindale v. Tenny, 250 Kan. 621, Syl. \\u00b6 2, 829 P.2d 561 (1992).\\nThe legislature makes its intentions very clear in K.S.A. 1994 Supp. 22-3608. The language could not be any more plain and unambiguous. For crimes committed on or after July 1, 1993, subsections (a) and (b) \\\"shall not apply.\\\" K.S.A. 1994 Supp. 22-3608(a), (b). The legislature unquestionably intended to rescind the old law for crimes committed after the effective date of the sentencing guidelines. \\\"It is . . . presumed that the legislature acts with full knowledge as to judicial decisions on prior law. [Citation omitted.]\\\" State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988).\\nFor crimes committed on or after July 1,1993, a defendant \\\"shall have 10 days after the judgment of the district court to appeal.\\\" K.S.A. 1994 Supp. 22-3608(c). As was the case prior to July 1,1993, the time for a notice of appeal commences from the date the sen tence is orally pronounced from the bench, not the date of the filing of the journal entry. State v. Moses, 227 Kan. at 403-04.\\nIt is obvious in the case presently before the court that Bost's attorney hoped to fall within the language of K.S.A. 1994 Supp. 22-3608(a), which allows an appeal within 10 days of the court's denial of a motion to modify. However, under K.S.A. 1994 Supp. 22-3608(c), Bost has filed an untimely notice of appeal since he failed to file within 10 days of the court's imposition of sentence. The filing of a timely notice of appeal is jurisdictional, and the district court cannot confer appellate jurisdiction on this court.\\nThis case could be considered an exception to the above rule pursuant to the authority of State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982). The Ortiz court held that while the timely filing of a notice of appeal is jurisdictional, an exception has been recognized in cases where a defendant either was not informed of his or her rights to appeal, was not furnished an attorney to exercise those rights, or was furnished an attorney for that purpose who failed to perfect and complete an appeal. However, Bost makes no claims of ineffective assistance of counsel. Even if that claim had been made, it will not be necessary for this court to remand this case to the district court for a determination of whether B\\u00f3st was denied effective assistance of counsel since his appeal fails on other separate and distinct jurisdictional grounds.\\nEffect on jurisdiction of a motion to modify/depart\\nNeither party addressed in their briefs, although requested by this court, whether a motion for departure is timely after the court has rendered sentence or whether a district court has jurisdiction to consider a motion to modify for a crime committed after July 1, 1993. Because these issues are significant and jurisdictional, the court will raise and consider them on its own initiative.\\n\\\"It is the duty of an appellate court to raise the question of jurisdiction on its own motion, and where the district court had no jurisdiction, the appellate court does not acquire jurisdiction over the subject matter on appeal.\\\" City of Overland Park v. Barron, 234 Kan. 522, Syl. \\u00b6 1, 672 P.2d 1100 (1983).\\n\\\"'This court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, \\u00a7 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal.' [Citations omitted.]\\\" State v. Ortiz, 230 Kan. at 735.\\nMotion to modify\\nFor crimes committed before July 1, 1993, the court's authority to modify a defendant's sentence came under K.S.A. 1992 Supp. 21-4603(4)(a). In conjunction with K.S.A. 21-4601, the Kansas courts allowed a defendant, under K.S.A. 1992 Supp. 21-4603(4), the opportunity to have his or her sentence modified when a motion was filed within the statutory 120-day period following the imposition of sentence. State v. Safit, 244 Kan. 517, 519, 769 P.2d 675 (1989).\\nHowever, with the implementation of the sentencing guidelines, the legislature established a separate statute to cover authorized dispositions of crimes committed on or after July 1, 1993. K.S.A. 1994 Supp. 21-4603d. There are no provisions in K.S.A. 1994 Supp. 21-4603d which grant a defendant the right to file a motion requesting the court to modify his or her sentence. The legislature has revoked the ability to have one's sentence modified after sentencing.\\nA sentencing court has the ability to adjust, alter, or change guidelines-computed sentences prior to sentencing. Generally, once a defendant's placement on the sentencing guidelines grid has been determined, the defendant can attempt to \\\"modify\\\" the presumptive sentence by utilizing the nonexclusive list of mitigating factors found in K.S.A. 1994 Supp. 21-4716(b)(l). The State, by the same reasoning, can attempt to \\\"modify\\\" the presumptive sentence by utilizing the nonexclusive list of aggravating factors found in K.S.A. 1994 Supp. 21-4716(b)(2). The court has the final decision on whether the factors submitted by the defendant or the State are substantial and compelling reasons to impose a departure. K.S.A. 1994 Supp. 21-4716(a). The motion for a departure sentence is the method for sentence modification for crimes committed after July 1, 1993.\\nThe previous holdings concerning the timing for filing a notice of appeal under K.S.A. 1994 Supp. 22-3608 are consistent with the legislature's elimination of allowing post-sentencing motions to modify. K.S.A. 1994 Supp. 22-3608(c) no longer provides that a motion to modify extends the time to file a notice of appeal, whereas earlier, a defendant had 10 days from the denial of a motion to modify in which to file a notice of appeal. K.S.A. 22-3608(1); see State v. Ji, 255 Kan. 101, 103, 872 P.2d 748 (1994). A defendant whose crime was committed on or after July 1, 1993, has only 10 days from sentencing in which to appeal, without any consideration or mention of a motion to modify. K.S.A. 1994 Supp. 22-3608(c).\\nThe district court was without the authority to entertain Bost's motion to modify his sentence.\\nDownward Departure\\nThe KSGA does not expressly state that a motion for departure must be filed prior to sentencing. However, provisions of the KSGA provide that the disposition of a departure sentence must be resolved prior to or at the sentencing hearing. K.S.A. 1994 Supp. 21-4718(a) provides that if a defendant or the State files a motion to depart, the court shall hold a hearing to consider a departure sentence. Additionally, the hearing shall be scheduled so that both parties have adequate time to prepare to argue for or against departure, and the court must issue findings of fact and conclusions of law concerning the departure within 20 days of the hearing. K.S.A. 1994 Supp. 21-4718(a)(l) and (2).\\nK.S.A. 1994 Supp. 21-4716(a) expressly determines the timing of a motion for a departure sentence. It states in part: \\\"If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.\\\" (Emphasis added.) There is no authority for a sentencing court to entertain a motion for departure from the presumptive sentence after sentence is im-\\nThe district court was without the authority to entertain Bost's request for a downward departure.\\nDenial of downward departure\\nBost does not contest that his sentence falls within the presumptive range of nondrug grid block 5-H or that the trial court incorrectly determined the crime severity level and criminal history category. His only argument is that the trial court erred in denying his motion for downward departure by failing to consider the factors found in K.S.A. 1994 Supp. 21-4704(f). Bost does not address the jurisdiction of this court to review the denial of his motion to depart.\\nOn the otiher hand, the State submits a purely statutory argument that Bost is prohibited from appealing a sentence within the presumptive range of the sentencing grid box. The State also argues it is purely discretionary for the district court to impose probation for a \\\"border box\\\" classification and, in this case, the court did not abuse its discretion. The State makes no reference to this court's recent decision in State v. Myers, 20 Kan. App. 2d 401, 888 P.2d 866 (1995).\\nOne of the critical issues in this case regards this court's jurisdiction to review Bost's sentence under the KSGA.\\nEven if Bost had timely filed his motion for departure with the district court, this court has no jurisdiction to review his sentence. K.S.A. 1994 Supp. 21-4721(c) provides: \\\"On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime.\\\"\\nHad Bost's sentencing grid classification fallen within the presumptive incarceration or presumptive probation portion of the sentencing grid and not the border box region, State v. Myers would control this case. The language of K.S.A. 1994 Supp. 21-4721(c)(1), as interpreted by Myers, provides that if a crime was committed on or after July 1, 1993, an appellate court shall not review an imposed sentence if that sentence is within the presumptive sentence for that crime. Although not dispositive of this case, Myers provides the foundation to arrive at the same result. 20 Kan. App. 2d at 403. A logical extension of Myers provides that this court does not have jurisdiction to consider an appeal when a defendant's crime places him or her in one of the border boxes and the district court sentences the defendant within the presumptive range of the border box.\\nAfter a discussion of the rules of statutory interpretation and comparing similar statutes in Oregon and Washington, the Myers court reasoned as. follows:\\n\\\"To us, the language of K.S.A. 1993 Supp. 21-4721(c)(l) is clear. Neither the defendant nor the State may appeal a sentence that falls within the presumptive range, even if the trial court has denied a motion for departure. The legislative intent and wording of the statute plainly does not allow an appeal when the sentence given falls within the sentencing range (grid block) for the crime and criminal history.\\\" 20 Kan. App. 2d at 403.\\nThe court noted that, if the trial court does decide to depart from the presumptive sentence, that departure sentence may be appealed by either the defendant or the State. 20 Kan. App. 2d at 403. The appellate court would then determine whether the sentencing court's findings of fact and reasons justifying a departure are supported by the evidence in the record and constitute substantial and compelling reasons for departure. K.S.A. 1994 Supp. 21-4721(d).\\nMyers did not concern a border box case. Myers' criminal classification placed him in nondrug grid block 5-F, thus squarely within the presumptive imprisonment portion of the grid. 20 Kan. App. 2d at 401; see K.S.A. 1994 Supp. 21-4704(a). In the case before the court, Bost's classification placed him within the border box grid block of 5-H. However, the nondrug sentencing grid denotes border boxes as neither presumptive imprisonment nor presumptive probation. K.S.A. 1994 Supp. 21-4704(a).\\n\\\"A presumptive sentence under the Kansas Sentence Guidelines Act is the sentence provided in the grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender's criminal history. K.S.A. 1993 Supp. 21-4703(r). A presumptive sentence includes both a presumptive duration and a presumptive disposition.\\\" State v. Peal, 20 Kan. App. 2d 816, Syl. \\u00b6 2, 893 P.2d 258 (1995).\\nArguably, border box classifications cany a presumptive imprisonment sentence.\\nFirst, the sentencing guidelines provide that, if an offense is classified in a grid block above the dispositional line, the presumptive disposition is imprisonment. K.S.A. 1994 Supp. 21-4704(a), (f). A classification of 5-H is clearly above the dispositional fine. See K.S.A. 1994 Supp. 21-4704(a).\\nSecond, the Kansas Sentencing Guidelines Desk Reference Manual also provides that \\\"[i]f an offense is classified in grid blocks 5-H, 5-1 or 6-G of the nondrug grid, the sentence is presumed imprisonment.\\\" 1995 Kansas Sentencing Guidelines Desk Reference Manual, p. 24.\\nTherefore, a district court's rendering of a prison sentence for a defendant who falls within grid block 5-H is not a departure since the sentence in the border box is presumed imprisonment.\\nThird, this court recently discussed the presumptive sentence of nondrug grid block 5-1 in State v. Peal, 20 Kan. App. 2d at 819. Peal pled guilty to charges of aggravated robbeiy and simple robbery. The district court sentenced Peal properly within nondrug grid block 3-E for the primary crime of aggravated robbery. Since nonprimary crimes do not have criminal history scores, the district court placed Peal within nondrug grid block 5-1 for purposes of the simple robbery sentence. The court stated:\\n\\\"[T]he presumptive sentence for the simple robbeiy is 31 to 34 months, as reflected in grid block 5-1. K.S.A. 1993 Supp. 21-4704. Grid block 5-1 carries a presumptive disposition of imprisonment in this case due to K.S.A. 1993 Supp. 21-4720(b)(6), which provides: 'If the sentence for the primary crime is a prison term, the entire imprisonment term of the consecutive sentences will be served in prison.' Furthermore, a decision by the court regarding the imposition of a prison term for a crime classified in grid block 5-1 is not a departure and is not subject to appeal. K.S.A. 1993 Supp. 21-4704(f).\\\" 20 Kan. App. 2d at 819.\\nBy the same token, the legislature has also arguably made the presumptive sentence of a border box classification to be probation. The legislature has statutorily decided that a nonprison sentence from a border box classification is not a departure sentence. \\\"Any decision made by the court regarding the imposition of an optional nonprison sentence if the offense is classified in grid blocks 5-H, 5-1 or 6-G shall not be considered a departure and shall not be subject to appeal.\\\" K.S.A. 1994 Supp. 21-4704(f). By definition then, since the imposition of probation in a border box case is not a departure, the sentence appears inconsistent \\\"with the presumptive sentence for an offender.\\\" K.S.A. 1994 Supp. 21-4703(f). In any event, the legislature still requires the district court to make specific findings on the record in order to impose a non-prison sentence in a border box case. K.S.A. 1994 Supp. 21-4704(f). It appears the legislature itself considers the imposition of a non-prison sentence in a border box case to be a deviation from the grid since such a sentence is an \\\"optional nonprison sentence\\\" and the district court must make specific findings in order to impose a nonprison sentence.\\nA decision that the appellate court does not have jurisdiction to consider a border box sentence that is within the presumptive range of incarceration or the presumptive range of probation complies with the sentencing guidelines established in Oregon. The Oregon Legislature appears to have anticipated the issues presently before the court. Oregon statutes, specifically Or. Rev. Stat. \\u00a7 138.222(2) (1994 Supp.), state that for crimes committed after the implementation of Oregon's sentencing guidelines, the appellate court shall not review:\\n\\\"(a) Any sentence that is within the presumptive sentence prescribed by the rules of the State Sentencing Guidelines Board.\\n\\\"(b) A sentence of probation when the rules of the State Sentencing Guidelines Board prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.\\n\\\"(c) A sentence of imprisonment when the rules of the State Sentencing Guidelines Board prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.\\\"\\nBorder box classification in Kansas unquestionably falls within the language of subsections (b) or (c) of Or. Rev. Stat. \\u00a7 138.222(2). As explained above, the substance of the applicable Kansas statutes is the same as the Oregon statutes. There is no jurisdiction for an appeal under the KSGA.\\nThe bottom line is that the Kansas Legislature intended to give sentencing judges the discretion to impose incarceration or probation in border box cases and not require the court to establish substantial and compelling reasons in the form of mitigating or aggravating factors. See K.S.A. 1994 Supp. 21-4716(b), (c). Otherwise, the case would be considered a departure and an appellate court would review the case to determine if the sentencing court's findings and reasons for departing were substantial and compelling reasons as well as supported by the evidence in the record. K.S.A. 1994 Supp. 21-4721(d); see State v. Howard, 20 Kan. App. 2d 252, 253, 885 P.2d 1273 (1994). As such, the imposition of incarceration or probation in a border box case is the imposition of the presumptive sentence for purposes of appeal. This decision would not prohibit a defendant from appealing a durational departure under K.S.A. 1994 Supp. 21-4703(i).\\nTherefore, when a defendant's sentencing grid classification falls within the 5-H nondrug grid block or any border box, there does not initially appear to be a presumptive sentence. In actuality, a border box classification can be both presumptive imprisonment or presumptive probation, and the trial court is given full discretion to decide which to impose. This argument coincides with the fact that neither an imprisonment nor a probation sentence within their respective ranges is a departure. See K.S.A. 1994 Supp. 21-4704(a), (f)-\\nAppellate courts are without jurisdiction to consider appeals from a sentence entered for a felony committed on or after July 1, 1993, where the imposed sentence is within the range of the appropriate border box classification; such sentence of imprisonment or probation is the \\\"presumptive\\\" sentence for purposes of appeal and is not subject to appellate review. K.S.A. 1994 Supp. 21-4704(a) and (f).\\nThe presumptive imprisonment term for grid block 5-H on the nondrug sentencing grid is 34 to 38 months. K.S.A. 1994 Supp. 21-4704(a). The presumptive or \\\"recommended\\\" nonimprisonment (probation, community corrections) term for a severity level 5 crime is 36 months. K.S.A. 1994 Supp. 21-4611(c)(l)(A). The 36 months of incarceration Bost received was the middle-range imprisonment sentence. Because the sentence is within the presumptive sentence range, this court is without jurisdiction to review the sentence unless it was the result of partiality, prejudice, oppression, or corrupt motive or the court erred in ranking the se verity level of the crime or in calculating the defendant's criminal history. See K.S.A. 1994 Supp. 21-4721(e); see also State v. Starks, 20, Kan. App. 2d 179, 885 P.2d 387 (1994) (appellate review proper for a claim of partiality or prejudice). None of those things are alleged in this case.\\n. As succinctly stated in Myers, \\\"[t]he appeal attempted herein is precisely the type of an appeal which is not permitted by the KSGA. Appellate courts do not have jurisdiction to consider appeals of this nature.\\\" 20 Kan. App. 2d at 404. The same is true here.\\nAppeal dismissed.\"}"
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+"{\"id\": \"3670693\", \"name\": \"Tom Wenrich and Sherry Wenrich, Appellees, v. Employers Mutual Insurance Companies, Appellant\", \"name_abbreviation\": \"Wenrich v. Employers Mutual Insurance Companies\", \"decision_date\": \"2006-04-28\", \"docket_number\": \"No. 93,953\", \"first_page\": 582, \"last_page\": \"597\", \"citations\": \"35 Kan. App. 2d 582\", \"volume\": \"35\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-11T02:19:26.166435+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Greene, P.J., Pierron and Caplinger, JJ.\", \"parties\": \"Tom Wenrich and Sherry Wenrich, Appellees, v. Employers Mutual Insurance Companies, Appellant.\", \"head_matter\": \"(132 P.3d 790)\\nNo. 93,953\\nTom Wenrich and Sherry Wenrich, Appellees, v. Employers Mutual Insurance Companies, Appellant.\\nOpinion filed April 28, 2006.\\nMarc A. Powell and Jennifer M. Hill, of Powell, Brewer, & Reddick, L.L.P., of Wichita, for appellant.\\nStephen W. Brown, of Megaffin & Brown, Chartered, of Pratt, for appellees.\\nBefore Greene, P.J., Pierron and Caplinger, JJ.\", \"word_count\": \"5063\", \"char_count\": \"30856\", \"text\": \"Greene, J.:\\nEmployers Mutual Insurance Companies (EMC) appeals a judgment of indemnity and attorney fees in favor of its insureds, Tom and Sherry Wenrich, on a claim for storm damage under their commercial property insurance policy. EMC argues that the district court erred in instructing the jury and submitting a special verdict question that allowed the jury to ignore a coinsurance provision in the policy. EMC also challenges the district court's award of attorney fees. We affirm.\\nFactual and Procedural Background\\nEMC issued the Wenrichs a commercial property insurance policy on their business real and personal property in Pratt, Kansas, effective December 9, 2001. The declaration page designated an 80% coinsurance penalty, explained by the printed policy form as follows:\\n\\\"If a Coinsurance percentage is shown in the Declarations, the following condition applies.\\n\\\"a. We will not pay the full amount of any loss if the value of Covered Property at the time of loss times the Coinsurance percentage shown for it in the Declarations is greater than the Limit of Insurance for the property.\\n\\\"Instead, we will determine the most we will pay using the following steps:\\n(1) Multiply the value of Covered Property at the time of loss by the Coinsurance percentage;\\n(2) Divide the Limit of Insurance of the property by the figure determined in Step (1);\\n(3) Multiply the total amount of loss, before tire application of any deductible, by the figure determined in Step (2); and\\n(4) Subtract the deductible from the figure determined in Step (3).\\n\\\"We will pay the amount determined in Step (4) or the limit of insurance, whichever is less. For the remainder, you will either have to rely on other insurance or absorb the loss yourself.\\\"\\nOn May 7, 2002, the Wenrichs' property, including a service station building and canopies, storage building, and 1981 GMC pickup were damaged by wind and hail. Wenrichs reported a claim to their agent, and after an adjuster inspected the damage, EMC issued a check to the Wenrichs in September 2002 for $7,481.50. The Wenrichs cashed this check but apparently were not satisfied with the amount. In December 2003 counsel for the Wenrichs issued a demand letter for additional indemnity on the damaged property, and EMC issued a second check in January 2004 for $1,628.94 for \\\"full and final settlement.\\\" This check was not cashed by the Wenrichs, and they shortly thereafter filed a petition against EMC seeking damages of $40,000 plus attorney fees.\\nAfter a formal pretrial order was entered, the matter was tried to a jury in late September 2004. The trial focused upon a host of issues, most of which are not material to this appeal, including the reasonable cost of repairs, whether the insureds provided an adequate basis to compute the loss, purported lack of financial interest of the insureds in some of the subject properties, and payment to and acceptance by the insureds. The principle issues on appeal surround instructions to the jury regarding the application of the coinsurance clause of the policy, and those issues seem to be related exclusively to a storage building located at 404 Pedigo in Pratt.\\nIn its instructions to the jury, the district court included a modified version of PIK Civ. 3d 124.32, stating: \\\"If you find that the terms of the insurance policy on the issue of coinsurance are susceptible of more than one meaning, tire policy provisions must be given the meaning which is most favorable to the policyholder.\\\" EMC objected to this instruction, arguing that there was no issue of policy ambiguity or \\\"question of fact as to which of the two reasonable meanings is to be given.\\\"\\nThe district court also included among five special verdict form questions a final question stating: \\\"Has the defendant met its burden of proof that an underinsurance (co-insurance) penalty should be applied regarding any damage to the storage building at 404 Pedigo?\\\" EMC also objected to this question, arguing that \\\"the coinsurance penalty is plainly in the insurance policy and that's a matter for the Court to decide if it should be applied and, therefore, we don't think that's a question for the jury.\\\"\\nThe jury returned a verdict in favor of E MC on the cost to repair, answering one of the special verdict questions, \\\"We agree with all adjustments with insurance company,\\\" but it rejected EMC's claim for a coinsurance penalty on the Pedigo storage building, finding that EMC did not sustain its burden of proof that the coinsurance penalty should be applied. The district court entered judgment against EMC for $8,724.01, together with attorney fees and costs of $14,310.57. EMC appeals.\\nDid the District Court Err in Denying a Motion to Alter or Amend the Judgment for the Purported Amount of the Coinsurance Penalty?\\nOn appeal EMC argues that its \\\"primaiy\\\" issue is whether the coinsurance deduction for $6,994.07 is enforceable as a matter of contract law. Notably, EMC did not move for partial summary judgment or for a directed verdict on this basis; apparently, it moved posttrial to alter or amend the judgment under K.S.A. 60-259(f), but this motion is not in the record on appeal. Because we have the transcript of argument on the posttrial motion, we are able to glean the thrust of EMC's argument to the district court. We review the district court's denial of a motion under K.S.A. 60-259(f) for an abuse of discretion. Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004); 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d \\u00a7 2818, pp. 197-98 (1995) (abuse of discretion is well-settled standard of review on motion to alter or amend).\\nEMC's argument suggests, first, that the coinsurance clause in the policy is not ambiguous and is capable of enforcement as a matter of law, and second, that the evidence of replacement cost (purportedly necessary for calculating the coinsurance penalty) was undisputed.\\nThe term \\\"coinsurance\\\" means a relative division of the risk between the insurer and the insured. 15 Couch on Insurance, \\u00a7 220:3 (3d ed. 2005).\\n\\\"Coinsurance clauses are provisions in insurance policies that require the insured to maintain coverage to a specified value of the property, and stipulate that, upon his or her failure to do so, he or she becomes a coinsurer and must bear his or her proportionate part of the loss. For example, insurance policies which insure against particular hazards such as fire, water, or wind damage often specify that the owner of the property may not collect tire full amount of insurance for a loss unless the insurance policy covers at least some specified percentage, usually about 80 percent of tire replacement cost of the property. To the extent that the property is underinsured, the insured becomes a coinsurer with the underwriter.\\\" Couch \\u00a7 220:3, p. 220-9.\\nIn Kansas, coinsurance clauses are enforceable and have been stated to be \\\"a plain limitation of liability.\\\" See Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 385, 291 Pac. 935 (1930).\\nWere the coinsurance provisions in the policy ambiguous?\\nEMC argues that the coinsurance provisions in the Wenrichs' policy are not ambiguous and should be enforced as a matter of law. The Wenrichs argue that the term \\\"value\\\" as used in the coinsurance provisions renders these provisions ambiguous, apparendy because it is not clear whether the \\\"replacement cost\\\" optional coverage applies to displace \\\"value\\\" in its plain and ordinary sense. This is precisely the same argument made to the district court in advocating an instruction for ambiguity. Whether a written instrument is ambiguous is a question of law. O'Bryan v. Columbia Ins. Group, 274 Kan. 572, 576, 56 P.3d 789 (2002). For reasons discussed below, we hold that there was no ambiguity in the coinsurance provisions.\\nTurning to applicable policy provisions, there is no dispute that the declarations page of the Wenrichs' policy specifies that the replacement cost optional coverage applies to the real property at issue. The language of that optional coverage provides that \\\"Replacement Cost (without deduction for depreciation) replaces Actual Cash Value in the Loss Condition, Valuation, of this Coverage Form.\\\" The phrase \\\"Loss Condition, Valuation\\\" is a reference to section \\\"E. Loss Conditions\\\" and subsection \\\"7. Valuation,\\\" which states that \\\"[w]e will determine the value of Covered Property in the event of loss or damage as follows: a. At actual cash value as of the time of loss or damage, except as provided in b., c., d., e., and f. below.\\\" Accordingly, the replacement cost option has no express application to the coinsurance provisions contained at section \\\"F. Additional Conditions\\\" and subsection \\\"1. Coinsurance,\\\" but these provisions reference \\\"the value of Covered Property at the time of loss\\\" and inescapably incorporate the replacement cost option when designated by the declarations page.\\nWe agree with EMC that the replacement cost optional coverage must be construed as altering the methodology for determining \\\"the value of Covered Property in the event of loss\\\" and is therefore inherently incorporated into the coinsurance provisions. There is no ambiguity in tire coinsurance provisions because we cannot conceive of any reasonable alternative meaning to the phrase \\\"the value of Covered Property at the time of loss\\\" other than replacement cost pursuant to the optional coverage. If the optional coverage had not been declared, the coinsurance provision would be interpreted consistent with the valuation provision to require use of \\\"actual cash value.\\\" The clear effect of the optional coverage is the substitution of \\\"replacement cost\\\" for \\\"actual cash value\\\" in determining \\\"the value of Covered Property in the event of loss or damage.\\\" In the absence of more than one possible meaning to a word or phrase in a legal instrument, ambiguity does not exist. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, Syl. \\u00b6 4, 961 P.2d 1213 (1998).\\nWere the coinsurance provisions enforceable as a matter of lawP\\nConcluding that there was no ambiguity in the coinsurance provisions does not, however, render the provisions enforceable as a matter of law where application inherently requires a determination of fact, specifically the replacement cost of the property at the time of loss. Under the EMC policy form, the coinsurance penalty applies \\\"if the value of the Covered Property at the time of loss times the Coinsurance percentage shown for it in the Declarations is greater than the Limit of Insurance for the property.\\\"\\nEMC argues that application of a coinsurance penalty presents a pure question of law, citing Bichelmeyer Meats v. Atlantic Ins. Co., 30 Kan. App. 2d 458, 465-66, 42 P.3d 1191 (2001), in which this court affirmed the district court's finding that the coinsurance provision in the insurance policy was not ambiguous. EMC makes much of the Bichelmeyer court's statements that construction of an insurance policy is a question of law and that an appellate court may construe the policy without regard to the district court's interpretation of such. EMC then relies on this language to argue the district court in the present case should not have allowed the jury to determine whether it met its burden to show applicability of the coinsurance provisions. Importantly, however, the procedural posture of Bichelmeyer differed from that of the present case, in that the issues presented in Bichelmeyer were resolved by summary judgment. See 30 Kan. App. 2d at 460-61. Here, there is no indication either party ever sought resolution via summaiy judgment. Thus, the mere fact the district court evaluated the legal propriety of the coinsurance provision in Bichelmeyer does not mean the district court erred in submitting a coinsurance issue to the jury under the circumstances presented in this case.\\nIn fact, application of a coinsurance clause generally presents a mixed question of fact and law. Although preliminary construction and application of coinsurance provisions may present legal issues, whether such a clause applies and justifies a coinsurance penalty in a particular case requires a determination of whether the insured was underinsured or, as stated in EMC's policy, whether the \\\"value of the covered property at the time of loss times the Coinsurance percentage . is greater than the Limit of Insurance\\\"; this is clearly a fact question. Although there is an apparent scarcity of case law on the question, we note that the Wisconsin Court of Appeals has held in an unpublished opinion that an insurer is not entitled to judgment notwithstanding the verdict based on a coinsurance provision where it failed to request that the jury make the requisite factual findings needed to support application of the clause. See Jonas Builders, Inc. v. United States Fidelity & Guaranty Co., 2001WL 1474775 (Wis. App., unpublished opinion filed November 21, 2001). We agree.\\nWas there disputed evidence on the inherent fact question?\\nAlthough EMC argues that there was no dispute as to the evidence of replacement value for the subject property, we disagree. We note that there is evidence that the \\\"value\\\" of the subject property was as little as $25,000, and other witnesses opined that replacement cost was as little as $33,000 to as much as $60,000, and disagreed as to replacement of the slab, the manner and cost of roof replacement, and other details. This evidence suggests that the proper application of the coinsurance provisions of the Wenrichs' policy presented a mixed question of law and fact, and that the district court did not err in refusing to grant EMC's posttrial motion to enforce the coinsurance penalty as a pure matter of law.\\nDid the district court abuse its discretion in denying posttrial relief?\\nThe district judge denied EMC's posttrial motion, stating:\\n\\\"There were enough factual disputes in my opinion that it was appropriate to let the jury answer that question. Maybe it's one of these mixed questions of fact and law that I don't know that you can, you can separate it out.\\n\\\"The Court would deny the motion to alter or amend. I think we did as good a job as we could with a difficult factual matter. A difficult matter of applying provisions of an insurance policy and a difficult matter that, for example, if there was going to be the Court determining as a matter of law an issue of a coinsurance penalty, I think that should have been done by a motion for partial summary judgment, or something of that nature prior to trial.\\n\\\"After the dust has settled, we can Monday morning quarterback all we want to. The dust has settled. The jury says it's appropriate that there be a verdict in favor of Mr. and Mrs. Wenrich because there shouldn't have been a coinsurance penalty applied. That's where the dust has settled and I don't intend to restir it today and the motion to alter or amend judgment is denied.\\\"\\nIn the final analysis, we cannot conclude that the district court abused its discretion in denying posttrial relief to EMC. Indeed, we have previously recognized that motions to alter and amend may properly be denied where the moving party could have, with reasonable diligence, presented the argument prior to the verdict. See Blevins v. Hiebert, 13 Kan. App. 2d 318, 323, 770 P.2d 486 (1989). Despite our view that EMC's coinsurance clause was not ambiguous, there was an inherent factual issue that was proper for resolution by the jury.\\nIt is clear from the record that EMC may have only belatedly understood and realized that coinsurance issues might have been addressed before trial with a motion for partial summary judgment. At tire outset of its posttrial motion argument, counsel admitted, \\\"After the dust settled after this trial we dug into the Kansas case law a little bit on this question on the coinsurance penalty issue and that's what we're here on.\\\" In fact, the pretrial order approved by counsel for both parties identified the following as issues of both fact and law: \\\"What was the Value' of Plaintiffs' insured property on May 7, 2002, for purposes of calculating an under-insurance penalty?\\\" and \\\"Were Plaintiffs under-insured and, if so, to what extent?\\\" Additionally, EMC specifically identified the following as an issue of fact in the pretrial order: \\\"What is the replacement cost of Plaintiffs' metal building, insured by Defendant, damaged by wind or hail, May 7, 2002, and/or what is the actual cash value of Plaintiffs' property insured by Defendant, damaged by wind or hail, May 2 [sic], 2002?\\\" Neither party identified as a question of law the specific issue whether a coinsurance penalty should apply, and we deem this omission by EMC as particularly damning to its post-trial position and argument on appeal.\\nAs the Wenrichs properly state, a pretrial order has the full force of other orders entered by the court and controls tire subsequent course of litigation unless modified to prevent manifest injustice. See K.S.A. 60-216(e); Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983). In the absence of an attempt to modify the pretrial order, such order is binding and controls the subsequent course of trial. Sieben v. Sieben, 231 Kan. 372, 377, 646 P.2d 1036 (1982).\\nGranted, EMC objected to a proposed question for the special verdict form regarding whether the Wenrichs met their burden to prove the coinsurance penalty should apply, briefly stating such was a question for the court to decide. Nevertheless, the determination of whether and to what extent the Wenrichs were underinsured, such that the coinsurance penalty would apply, necessarily depended on the replacement cost of the property. As previously noted, EMC expressly- \\u2014 and correctly- \\u2014 agreed the issues of value and whether the Wenrichs were underinsured framed questions of fact.\\nThe district court did not abuse its discretion in denying posttrial relief.\\nDid the District Court Err in Its Instructions and Special Verdict Question to the Jury Regarding the Coinsurance Clause?\\nEMC specifically challenges two aspects of the district court's instructions to the jury: (i) the instruction on resolving ambiguity and (ii) the special verdict question regarding applicability of the coinsurance penalty.\\nInstruction on resolving ambiguity\\nWith regard to the instruction on resolving ambiguity within the policy, EMC objected on the ground that there was no ambiguity shown. On appeal, EMC challenges this instruction on the basis that it \\\"does not include all the applicable rules of construction for appropriate interpretation for [sic] an insurance policy.\\\" Further, EMC briefly refers to its prior contention that the jury should not have been allowed to interpret the policy and maintains the policy was unambiguous.\\nAs a preliminary matter, the Wenrichs question whether EMC waived its right to challenge any jury instructions due to its failure to submit proposed jury instructions in accordance with the pretrial order. Regardless of whether EMC submitted proposed instructions, we are not inclined to hold that EMC waived all challenges to jury instructions simply by failing to submit its own proposed instructions.\\nThe instruction provided by the district court was slightly modified from PIK Civ. 3d 124.32, which reads: \\\"When the terms of the insurance policy (including any endorsements attached thereto) are susceptible of more than one meaning, the policy provisions must be given the meaning which is most favorable to the policyholder.\\\" The PIK Civ. 3d 124.32 Notes on Use acknowledge that ambiguity in a policy may present questions of either law or fact and state that in the case of the latter, this instruction may guide the jury in resolving the issue.\\nGiven our holding that there was no ambiguity in tire coinsurance provisions of EMC's policy, it was error to submit this instruction to the jury. There was simply no ambiguity to be resolved by the jury.\\nNevertheless, when the jury instructions are considered together and read as a whole, it appears any error instructing the jury on how to resolve any ambiguity in the policy was harmless, at best. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Hawkinson v. Bennett, 265 Kan. 564, 577, 962 P.2d 445 (1998). Here, EMC has not demonstrated prejudice; there is simply no way to determine whether the juiy's finding that EMC failed to meet its burden with regard to the coinsurance penalty was premised on a finding that the provision was ambiguous. Accordingly, we hold that any error in giving this instruction was harmless.\\nSpecial verdict question\\nWith regard to the special verdict question, EMC objected, arguing that the district court, rather than the jury, should decide whether a coinsurance penalty applied. On appeal, EMC argues the special verdict question was too broad because it allowed the jury to determine what the terms of the policy meant and too vague because the policy set forth a specific formula for determining whether the coinsurance penalty applied. Again, EMC claims that the only factual issue for the jury to decide was the replacement cost of the storage building, yet EMC submitted no alternate spe cial verdict question in this regard (nor did it argue that one was needed) to the district court.\\nBoth parties state appellate review of the propriety of a special verdict question is subject to the clearly erroneous standard. We disagree because, unlike Noon v. Smith, 16 Kan. App. 2d 818, 820, 829 P.2d 922 (1992), here EMC objected to the question. In Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 472, 819 P.2d 1192 (1991), cert. denied 504 U.S. 912 (1992), our Supreme Court stated: 'Whether to submit a special verdict form or instruct the jury on the law and how it applies to each count against each defendant is within the sound discretion of the trial judge.\\\" Hence, it appears EMC's claim of error must be reviewed for abuse of discretion. Judicial discretion is abused only when no reasonable person would take the view adopted by the district court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).\\nThe Wenrichs maintain the special verdict question was proper in light of the pleadings, pretrial order, and evidence presented at trial.\\n\\\"[A] special verdict [is] 'a special written finding upon each issue of fact.' Its provisions are permissive, not mandatory and where the court determines to use a special verdict, it has discretion as to tire nature, scope, and form of the questions to be put to the jury. [Citation omitted.] Where a case is submitted for special verdict, the issues of fact submitted to the jury should cover all issues raised by the pleadings, the pretrial order, and the evidence. Generally speaking, only ultimate fact questions so raised which are important to the final determination of the controversy should be submitted. [Citation omitted.]\\\" Bott v. Wendler, 203 Kan. 212, 219-20, 453 P.2d 100 (1969).\\nMore importantly, in attempting to reach a controlling fact issue, a question of law may be so intermingled that it cannot be separated, and it is proper to submit a question which combines both fact and law. 203 Kan. at 220. From a review of the record on appeal, the pretrial order and trial transcript in particular, we believe the district court's decision to submit the special verdict question at issue to the jury was within the court's discretion. As previously explained, whether a coinsurance penalty was warranted was heavily fact dependent, and the replacement cost of the prop erty remained in dispute. The jury had adequate information via the testimony presented and the insurance policy to utilize the formula set forth in the policy and assess whether the Wenrichs were underinsured. The jury could then determine whether EMC met its burden to show that a coinsurance penalty should apply. As the Wenrichs correctly note, the jury was aided in this determination by the district court's instructions, which included a definition of \\\"burden of proof.\\\"\\nMoreover, EMC's agreement to the issues of fact stated in the pretrial order and failure to object to the pretrial order's omission of any questions of law (including whether the coinsurance provision was ambiguous and whether it should apply) precludes EMC's challenge on appeal to the district court's submission to the jury of the issue of whether a coinsurance penalty should apply. See Popp v. Popp, 204 Kan. 329, 332, 461 P.2d 816 (1969) (rejecting plaintiff s attempt to challenge district court's submission of assumption of risk question to jury on grounds that such was question of law, holding \\\"[hjaving agreed to submit the question of assumption of risk to the jury and having been defeated on the point, the plaintiff may not now complain\\\").\\nClearly, the better approach would have been the submission of a special verdict question that simply asked the jury to determine the replacement cost of the Pedigo property at the time of loss. This was the sole fact issue requiring resolution for the court's application of the coinsurance clause; the calculation of the penalty was straightforward once the \\\"value of covered property at the time of loss\\\" was determined. We cannot fault the district court, however, for the approach chosen; again, EMC did not submit proposed special verdict questions that were consistent with the pretrial order, did not advocate for a more simplified and fact-based special verdict question, and did not offer to assist the court in this regard except to object to the special verdict question proposed by the court. We concede that a proper understanding and application of the coinsurance provisions may have taken an above-average jury, but we cannot conclude that the question was so far beyond comprehension that its submission was an abuse of discretion.\\nUnder these circumstances, we hold the district court did not abuse its discretion in submitting a special verdict question regarding application of the coinsurance provisions in the policy of insurance.\\nDid the District Court Err in Its Award of Attorney Fees ?\\nFinally, EMC argues the district court's award of attorney fees should be vacated or at least reduced. First, EMC contends that because the Wenrichs should not have prevailed in their attempt to recover the coinsurance penalty, they should not be allowed to recoup their attorney fees in the matter. Obviously, this claim is now moot.\\nEMC also challenges the basis and amount of the attorney fees award. An appellate court reviews both a district court's determination of the reasonableness of claimed attorney fees as well as the court's actual award of attorney fees utilizing an abuse of discretion standard. Davis v. Miller, 269 Kan. 732, 748-50, 7 P.3d 1223 (2000). When reviewing an award of attorney fees, an appellate court will not reweigh the evidence or reassess the credibility of witnesses. In re Marriage of Burton, 29 Kan. App. 2d 449, 454, 28 P.3d 427, rev. denied 272 Kan. 1418 (2001). The district judge is an expert in the area of attorney fees and can draw on and apply his or her own knowledge and expertise in determining their value. Davis, 269 Kan. at 750. Although an appellate court is also an expert on the reasonableness of attorney fees, it will not substitute its judgment for that of the district court unless in the interest of justice such is necessary. 269 Kan. at 751.\\nConsistent with the Wenrichs' amended pleadings and motion, die district court cited K.S.A. 40-908 as authority for its award of attorney fees. This statute provides:\\n\\\"[I]n all actions now pending, or hereafter commenced in which judgment is rendered against any insurance company on any policy given to insure any property in this state against loss by fire, tornado, lightning or hail, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney's fee for services in such action including proceeding upon appeal to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.\\\"\\nK.S.A. 40-908 clearly provided the district court authority to award attorney fees in this matter. Thus, we cannot reverse the district court's decision to award attorney fees absent a showing that the court abused its discretion, and no such abuse of discretion is apparent.\\nEMC claims the district court's award of $14,000 was an unreasonable sum given that the Wenrichs did not prevail on all their claims. EMC thus argues the attorney fee award should have been tailored only to the time counsel spent on the issues on which the Wenrichs prevailed- \\u2014 primarily, whether a coinsurance penalty was warranted.\\nIn their written request for attorney fees, the Wenrichs referred to the factors set forth in Rule 1.5(a) (2005 Kan. Ct. R. Annot. 397) of the Kansas Rules of Professional Conduct (KRPC). Indeed, our Supreme Court has urged consideration of these factors in determining the reasonableness of attorney fees. See Davis, 269 Kan. at 751. As EMC notes, one of these factors is the amount of money involved and the results obtained under KRPC 1.5(a)(4), but this is only one of the eight factors identified. Of particular importance to the present case, another factor refers to the time and labor required, tire novelty and difficulty of the issues involved, and the skill required to perform the service properly. KRPC 1.5(a)(1). Counsel for the Wenrichs testified at some length in this regard.\\nIn rendering its decision, the district court adopted the reasons set forth in the Wenrichs' motion for attorney fees. Importantly, the district court did not award the Wenrichs the full amount of attorney fees sought. Rather, the court reduced the award to account for the fact that the Wenrichs did not prevail on all claims. It would be an exercise in futility to attempt to separate the services provided by counsel any further, given the nature of the claims asserted and the intermingling of the evidence relevant to each claim.\\nConsideiing the district court's expertise in the area and the evidence submitted by the Wenrichs regarding their counsel's ef forts, we cannot conclude the district court abused its discretion. Accordingly, we affirm the district court's award of attorney fees.\\nAffirmed.\"}"
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+"{\"id\": \"3672912\", \"name\": \"William J. Kelly, Appellant/Cross-appellee, v. Whitney L. VinZant, M.D., Appellee/Cross-appellant\", \"name_abbreviation\": \"Kelly v. VinZant\", \"decision_date\": \"2008-12-12\", \"docket_number\": \"No. 94,648\", \"first_page\": 509, \"last_page\": \"528\", \"citations\": \"287 Kan. 509\", \"volume\": \"287\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:44:40.318783+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William J. Kelly, Appellant/Cross-appellee, v. Whitney L. VinZant, M.D., Appellee/Cross-appellant.\", \"head_matter\": \"No. 94,648\\nWilliam J. Kelly, Appellant/Cross-appellee, v. Whitney L. VinZant, M.D., Appellee/Cross-appellant.\\n(197 P.3d 803)\\nOpinion filed December 12, 2008.\\nSusan R. Schrag, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, argued the cause, and Edward L. Robinson, of the same firm, was with her on the briefs for appellanVcross-appellee.\\nJerry D. Hawkins, of Hite, Fanning & Honeyman, L.L.P., of Wichita, argued the cause, and Randy J. Troutt, of the same firm, was with him on the briefs for appellee/cross-appellant.\", \"word_count\": \"6887\", \"char_count\": \"42191\", \"text\": \"The opinion of the court was delivered by\\nLuckert, J.:\\nThis appeal raises questions of whether a medical malpractice plaintiff may state a claim for fraud and for violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., after a juiy found that the physician did not commit medical malpractice, and whether the statute of limitations for battery based upon a fraudulently obtained consent begins to run when the fraud is discovered or when the batteiy occurred.\\nWe hold that where the alleged fraud occurs as part of the informed consent process during medical treatment, a common-law fraud claim may not be stated independent of the medical malpractice claim. On the other hand, a KCPA claim may be, and a defense verdict on the medical malpractice claim does not foreclose the KCPA claims, which in this case were severed for a separate trial. Finally, we hold the statute of limitations begins to run on a battery claim at the time of the touching, even if the consent leading to the touching was vitiated by fraud not discovered immediately. The legislature defines periods of limitations and has not provided an exception to or stated any circumstances extending the statute of limitations for battery based upon concealment of fraud or an inability to discover the battery.\\nFacts\\nWilliam J. Kelly's family physician, Dr. Edward Lind, examined a lump in Kelly's groin area. After diagnosing a hernia, Lind told Kelly he needed surgery and recommended two surgeons \\u2014 Dr. Whitney L. VinZant and another doctor.\\nKelly went to VinZant, who examined Kelly, confirmed the diagnosis of a hernia, and recommended surgery. VinZant. described the procedure he would perform to repair the hernia and gave Kelly a pamphlet explaining the surgery. On October 22, 1999, VinZant performed inguinal hernia surgery on Kelly.\\nAt a follow-up visit on October 28, 1999, Kelly complained of soreness in his groin area and that his left testicle was missing. VinZant performed an examination and, according to Kelly, said, \\\"There it is. It's right there at the base. It should drop . . . down where it belongs.\\\" Kelly asked whether VinZant had done something to cause the testicle to be missing. Kelly summarized Vin-Zant's response as, \\\"All my surgeries are good; I do not do bad surgeries.\\\"\\nKelly saw VinZant again on November 4,1999. Kelly's groin pain was better, but his left testicle had still not dropped. Over the next 6 weeks, VinZant performed weekly examinations of Kelly; during this time, there was no change in Kelly's condition. Kelly then saw his family physician, Lind, and reported that his left testicle had not dropped since the hernia surgery. Lind called VinZant's office, and VinZant examined Kelly again. At that point, VinZant told Kelly he needed another surgery. VinZant explained that Kelly's testicle was in his body cavity and, if it was still functional, it could be pulled back down; if it was not functional, it would need to be removed because it could become cancerous.\\nOn April 7, 2000, VinZant performed exploratory surgery and removed a mass of tissue, which he thought was the testicle. Subsequent testing revealed the tissue was not the testicle, and, on April 13, 2000, VinZant told Kelly another surgery was necessary.\\nAfter a sonogram was performed, VinZant performed a third surgery on April 15, 2000, and was able to locate and remove the necrotized testicle.\\nTwo years later, on April 15, 2002, Kelly filed three separate lawsuits, each based on one of the three surgeries. All of the petitions contained a claim for medical malpractice based on allegations that the respective surgeries were performed negligently and/ or without informed consent. The petitions relating to the last two surgeries each alleged common-law fraud based on VinZant's statement that \\\"[a]ll my surgeries are good; I do not do bad surgeries\\\"; battery in the form of the two subsequent surgeries, which Kelly alleged were induced by the fraudulent statement; and violations of the KCPA based on the statement.\\nThe district court consolidated the three lawsuits but bifurcated the proceedings, holding that the malpractice action would be tried first; then the common-law fraud, battery, and KCPA claims would be presented in a second, separate trial. Damage issues already decided in the first trial would not be relitigated.\\nPrior to trial, VinZant filed a motion for partial summary judgment on Kelly's KCPA, fraud, and battery claims. After a hearing, the district court granted summary judgment to VinZant on the KCPA claims, holding that under the rationale of State ex rel. Stovall v. ConfiMed.com, 272 Kan. 1313, 38 P.3d 707 (2002), the statements made by VinZant to Kelly in the context of an office visit did not constitute marketing and were not entrepreneurial in nature and therefore did not fall within the context of the KCPA. However, the district court declined to grant summary judgment on the two common-law fraud claims or two claims for battery based on fraudulently obtained consent.\\nThe case proceeded to trial. VinZant's statement that \\\"[a]ll my surgeries are good; I do not do bad surgeries\\\" was not introduced at trial. Nor was there any evidence introduced concerning Vin-Zant's record as a surgeon. The district court had held that such information would be inadmissible in the negligence trial under K.S.A. 60-455 as evidence of a prior civil wrong and would be reserved for the second trial on the fraud and battery claims.\\nThe jury rendered a verdict in favor of VinZant by answering \\\"No\\\" to each of the following questions submitted to it:\\n\\\"1. Do you find Defendant Whitney VinZant to be at fault in connection with the October 22, 1999 surgery?\\n\\\"2. Do you find Defendant Whitney VinZant to be at fault in failing to perform imaging studies prior to the April 7, 2000 surgery?\\n\\\"3. Do you find Defendant Whitney VinZant to be at fault in failing to inform Mr. Kelly of the potential risks of nerve damage prior to any of the operations?\\\"\\nFollowing the verdict, the district court dismissed the fraud claims, holding \\\"it would be inconsistent to ask the jury to go forward and to deliberate upon an allegation of fraud on all my sur geries are good, I don't do a bad surgery, . . . when in fact, the juiy has found that he didn't do a bad one [in] this case.\\\" The district court also dismissed the battery claims based on fraudulently obtained consents, holding that the statute of limitations had expired. Finally, the district court denied motions for a judgment notwithstanding the verdict and for a new trial based on juror misrepresentations during voir dire and assessed various expenses as costs to Kelly.\\nKelly appealed, arguing that the district court erred in granting partial summary judgment to VinZant on the KCPA claims; the district court erred in dismissing his fraud and battery claims following the defense verdict on his allegations of medical malpractice; and the district court abused its discretion in disallowing certain evidence, in denying Kelly's motion for a new trial based on juror misconduct, and in awarding certain costs and expenses. VinZant cross-appealed the district court's failure to grant summary judgment on the fraud claims.\\nIn addressing Kelly's first argument, the Court of Appeals noted in Kelly v. VinZant, 2007 WL 1239300 (Kan. App. 2007) (unpublished opinion), that after the district court's ruling in this case regarding the KCPA, this court in Williamson v. Amrani, 283 Kan. 227, Syl. \\u00b6 1, 152 P.3d 60 (2007), held that \\\"a physician providing care or treatment to a patient can be found to have engaged in deceptive acts and practices in violation of K.S.A. 50-626 and unconscionable acts and practices in violation of K.S.A. 50-627.\\\"\\nNevertheless, the Court of Appeals concluded the district court correctly granted judgment on the KCPA claims, albeit for the wrong reason, because the issue of fraud was implicitly resolved by the jury's finding of no negligence. Under these facts, which the Court of Appeals stressed were unusual and unique, the alleged statement of fraud \\u2014 \\\"All my surgeries are good; T do not do bad surgeries\\\" \\u2014 was disproved with regard to Kelly as a result of the no-fault finding in the medical malpractice action, i.e., the statement was not untrue because the surgeries were not performed negligently.\\nThe Court of Appeals also upheld the district court's dismissal of the battery claims based on the applicable statute of limitations, agreeing with the district court that \\\" '[t]he fact that what looked like a consensual surgeiy is later determined to have been induced fraudulently vitiates the consent but doesn't change the time from which the battery occurred.' \\\" Because the batteries occurred at the time of the second and third surgeries, the 1-year limitations period had expired prior to the filing of Kelly's petition.\\nFurthermore, the Court of Appeals held that Kelly did not properly preserve for appeal his argument that the district court abused its discretion in disallowing certain evidence; the district court did not abuse its discretion in denying Kelly's motion for a new trial based on juror misconduct; and the district court did not abuse its discretion in awarding certain costs and expenses.\\nKelly filed a petition for review alleging the Court of Appeals erred in upholding the district court's rulings on the KCPA, fraud, and battery claims and maintaining that he was entitled to a new trial based on juror misconduct. This court granted review as to the rulings on the KCPA, fraud, and battery claims only and has jurisdiction pursuant to K.S.A. 22-3602(e) and K.S.A. 20-3018(b).\\nStandard of Review\\nProcedurally, this appeal presents a unique situation in that the district court decided several of the issues after a jury trial on the medical malpractice claims. In essence, the district court considered whether the KCPA claims were valid and, in light of the jury verdict, whether Kelly stated claims for fraud or for battery. In reviewing the district court's resolution of these questions, the Court of Appeals applied the standard of review applicable when a claim is dismissed for failure to state a claim as a matter of law. Under this standard, the court must accept the facts alleged by the plaintiff as true, along with any inferences that can be reasonably drawn therefrom. The court then decides whether those facts and inferences state a claim based on the plaintiff s theory or any other possible theory. Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007). The parties do not dispute that this is the appropriate standard for our review.\\nIn addition, the issue of whether the statute of limitations had expired on the battery claims presents an issue of law requiring the interpretation of statutes. These matters present questions of law subject to our de novo review. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007) (statutory interpretation and other issue of law reviewed de novo); see also Robbins v. City of Wichita, 285 Kan. 455, 460, 172 P.3d 1187 (2007) (summary judgment standard).\\nFraud\\nIn determining that the jury verdict foreclosed Kellys common-law fraud claims, the Court of Appeals enumerated the elements of an action for fraud, which require proof by clear and convincing evidence that: (1) false statements were made as a statement of existing and material fact; (2) the representations were known to be false by the party malting them or were recklessly made without knowledge concerning them; (3) the representations were intentionally made for the purpose of inducing another party to act upon them; (4) the other party reasonably relied and acted upon the representations made; and (5) the other party sustained damage by relying upon them. See Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 421, 109 P.3d 1241 (2005); DuShane v. Union Nat'l Bank, 223 Kan. 755, 576 P.2d 674 (1978) (fraud may be based upon a suppression of facts the party is obligated to communicate); Timi v. Prescott State Bank, 220 Kan. 377, 389, 553 P.2d 315 (1976) (to constitute fraud, statements must relate to fact rather than mere opinions or puffing); Wolf v. Brungardt, 215 Kan. 272, 524 P.2d 726 (1974) (representation is material when relating to matter so substantial as to influence party to whom it was made); PIK Civ. 4th 127.40.\\nThe Court of Appeals concluded some of these elements were not met, first noting that the statement was not necessarily untrue because Kelly s surgeries were not performed negligently. In addition, the panel stated:\\n\\\"Perhaps the district court's rationale is better stated by saying Kelly did not justifiably rely on VinZant's statement to his detriment because the medical malpractice action failed. . It would not be consistent to say that the surgeiy was not done negligently and then require another trial to determine if Kelly was defrauded by having needed surgery performed in a nonnegligent manner. This would be akin to negligence in air' where alleged negligence has nothing to do with possible damages. Only here, according to the jury, there was no negligence, although there were damages.\\\" Kelly, 2007 WL 1239300, at *4.\\nKelly argues this analysis ignores the nature of his allegations. Specifically, in his petition, Kelly asserts that the \\\"statement was a substantial contributing factor to Plaintiff s decision to continue to seek care and treatment from Defendant VinZant and to submit to the April 15, 2000 surgery.\\\" In other words, he alleges VinZant robbed him of his right to self-determination. See Natanson v. Kline, 186 Kan. 393, 406, 350 P.2d 1093, reh. denied 187 Kan. 186 (1960) (\\\"Anglo-American law starts with the premise of thoroughgoing self determination.\\\").\\nWhen the elements of fraud are viewed with this dignitary tort in mind, Kelly argues the elements of fraud were met because the statement \\\"[a]ll my surgeries are good; I do not do bad surgeries\\\" was a false statement of fact, VinZant knew all of his surgeries were not good, VinZant intended to discourage Kelly from going to another physician for a second opinion, Kelly reasonably relied upon the statement, and Kelly would have gone to a different surgeon and not allowed VinZant to touch him if Kelly had known of the bad results with other patients. Regarding damages, Kelly argues that he may recover damages for violation of his absolute right to have accurate information before consenting to VinZant performing any further surgeries on him. In addition, he emphasizes that he was precluded from introducing in the negligence trial the bulk of evidence he intended to present in support of the fraud and KCPA claims, i.e., there were problems with surgeries performed by VinZant on other patients which had resulted in other claims against VinZant.\\nIn response, VinZant raises several arguments as to why Kelly cannot establish these elements and, in addition, argues Kansas law does not allow a fraud claim founded on Kelly s theory; rather, the theoiy is subsumed in and subject to the rules governing a medical malpractice action based upon a lack of informed consent.\\nRegarding this latter point, in Williamson this court acknowledged a series of Kansas cases holding that \\\"a plaintiff cannot bring a claim for breach of contract or fraud where the gravamen of the claim is medical malpractice.\\\" 283 Kan. at 240; see Bonin v. Vannaman, 261 Kan. 199, 210-11, 929 P.2d 754 (1996) (plaintiff alleged physician failed to disclose information on a chest x-ray and failed to diagnose her condition; cause of action sounded in medical malpractice, not fraud, although conduct technically fulfilled elements of claim for fraud by silence; fraudulent concealment doctrine did not extend the statute of limitations); Malone v. University of Kansas Medical Center, 220 Kan. 371, 374-76, 552 P.2d 885 (1976) (action for failure of medical center to furnish all needed treatment sounded in tort; action could not be characterized as one in contract in order to avoid bar of governmental immunity); Travis v. Bishoff, 143 Kan. 283, 284-85, 54 P.2d 955 (1936) (action against surgeon for failure to perform operation according to proper surgical practice was one for malpractice even though petition stated action was for breach of contract).\\nIn Bonin, 261 Kan. 199, this court stated:\\n\\\" ' \\\"As malpractice covers every way in which a patient is injured through the dereliction of a doctor in his professional capacity, the approach, depending on the facts, can be through any of several familiar forms of action. But no matter what the approach, it remains an action for malpractice, not one for deceit, contract or anything else. A well recognized ground for recovery is where a physician represents that he has the skill to perform a certain operation when in fact he does not. This form of action requires the same elements of proof that an action in fraud requires, yet it could not be successfully disputed that as between the two it is an action for malpractice.\\\" ' [Citations omitted.]\\\" 261 Kan. at 211.\\nHowever, by its own language, Bonin does not stand for the proposition that a doctor can never be hable for fraud or breach of contract:\\n\\\"[Our holding] does not mean that a doctor can never be liable for fraud or breach of contract. Instead, this simply means that a fraud or breach of contract cause of action can only be based upon a physician's misconduct if that misconduct is beyond a breach of the legal duty which every doctor has the obligation to uphold. [Citation omitted.]\\\" 261 Kan. at 210.\\nSee also Noel v. Proud, 189 Kan. 6, Syl. \\u00b6 1, 367 P.2d 61 (1961) (patient's action against physician for alleged breach of express warranty that surgery would not worsen patient's condition did not raise allegations of negligence, gravamen not malpractice; subject to 3-year statute of limitations on oral contracts, rather than 2-year statute for torts).\\nIndeed, there is also Kansas precedent holding that when alleged fraud occurs separately from and subsequent to the malpractice and gives rise to damages separate and distinct from those flowing from the malpractice, a plaintiff is entitled to allege and prove such a cause of action. Typically, these actions arise from fraudulent statements intended to conceal malpractice. See Robinson v. Shah, 23 Kan. App. 2d 812, 936 P.2d 784 (1997).\\nIn arguing that VinZant's fraud prevented the exercise of self-determination, Kelly does not allege the fraud was designed to conceal malpractice or arose independent of the course of treatment or the consent to allow that treatment. Rather, he focuses upon the fraud as an inducement to allow the subsequent surgeries, surgeries which he argues were batteries because of the fraudulent statements. This claim goes to one of the fundamental facets of the physician-patient relationship \\u2014 informed consent.\\nAs Bonin states, when fraud is a part of the informed consent process, the claim is for malpractice, not fraud. Bonin specifically noted a patient could not state an independent claim based upon a physician's false representation that he or she possessed a skill. Essentially, Kelly makes the same allegation, i.e., that VinZant represented his skill was such that he performed only good surgeries. See, e.g., Ditto v. McCurdy, 86 Hawaii 84, 90-91, 947 P.2d 952 (1997) (failure to disclose lack of board certification as plastic surgeon, as opposed to other board certifications possessed, did not render doctor liable for fraud); Paulos v. Johnson, 597 N.W.2d 316, 320 (Minn. App. 1999) (allegation of misrepresentation stating physician was board certified is not actionable as independent fraud claim); Howard v. University of Medicine, 172 N.J. 537, 553-54, 800 A.2d 73 (2002) (fraud cause of action not allowed based upon surgeon's misrepresentation of qualifications and credentials).\\nThe conclusion that the claim sounds in medical malpractice, not fraud, does not change even if the fraud vitiates the consent, according to this court's holding in Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539 (1973). In that case, a physician anesthesiologist informed a patient that headaches were the only risk related to a spinal anesthesia. In fact, there are other risks, many of which are far greater in severity than a headache. Hence, the physician \\\"misinformed and misled\\\" the patient, and the \\\"the misleading statement was equivalent to a false statement by [the physician] and vitiated [the patient's] consent.\\\" 212 Kan. at 535. Nevertheless, the court determined the patient must prove the elements of a malpractice action. See 212 Kan. at 535-36.\\nConsistent with these authorities, we hold that under Kelly's theory that VinZant's fraudulent misrepresentation of his skill vitiated Kelly's consent to treatment, Kelly did not state a claim for fraud but for medical malpractice based upon a lack of informed consent.\\nIn addition, to the extent Kelly's claim of fraud can be interpreted as an attempt to conceal malpractice or as otherwise being independent of the treatment process, the district court's and Court of Appeals' analyses are directly applicable. Both of these courts concluded the jury's verdict establishes that Kelly's reliance on the statement did not result in a detriment \\u2014 there was no malpractice to conceal and the subsequent treatment did not result in harm. The only harm Kelly points to is the intangible harm of his not being able to exercise his self-determination in a knowing manner. As discussed, this harm is subsumed in the malpractice claims.\\nThe district court did not err in dismissing Kelly's common-law fraud claims.\\nKCPA\\nIn addition to the common-law fraud claims, Kelly's petitions alleged that VinZant's statement \\\"[a]ll my surgeries are good; I do not do bad surgeries\\\" constituted a \\\"deceptive\\\" or \\\"unconscionable act or practice\\\" in violation of the KCPA. These claims, in contrast to a common-law fraud claim that cannot be stated independent of a claim for medical malpractice, are based upon a statutorily created cause of action providing a remedy even in situations where a different remedy, including a medical malpractice claim, may also be available. See Williamson, 283 Kan. at 241-42.\\nNevertheless, both the district court and Court of Appeals concluded the KCPA claims could be dismissed as a matter of law, although the two courts reached the conclusion on different grounds: The district court ruled the KCPA did not apply when a physician was providing medical care to a patient; the Court of Appeals concluded the jury's verdict precluded the KCPA claims.\\nDistrict Court Rationale\\nAs noted by the Court of Appeals, this court's holding in Williamson \\u2014 i.e., a physician providing care or treatment to a patient can be considered a supplier of services who is potentially hable for violations of the KCPA \\u2014 reveals the error in the district court's grant of summary judgment to VinZant on the KCPA claims.\\nIn Williamson, Tracy Williamson brought an action against her orthopedic surgeon pursuant to the KCPA based on a claim that the surgeon engaged in unconscionable and deceptive acts and practices by willfully misrepresenting or concealing material facts regarding his lack of success rate with respect to the back surgery he had recommended to her. Specifically, Williamson alleged that her surgeon represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where he had performed the same procedure. The district court granted summary judgment, finding that the KCPA did not apply to a medical provider's professional care and treatment of a patient.\\nBefore this court, Williamson made the same arguments Kelly made to the district court. In Williamson, this court reversed the grant of summary judgment, holding that the plain language of the KCPA was broad enough to encompass medical care and treatment services provided within a physician-patient relationship; the KCPA did not provide an exemption for medical providers; a physician can be found to have engaged in deceptive acts and practices, K.S.A. 50-626, or unconscionable acts and practices, K.S.A. 50-627; the KCPA applied to Williamson's claim that her surgeon willfully misrepresented or concealed material facts regarding his success rate with tire back surgery; and, under K.S.A. 50-626(b)(3), proof of an allegation that a physician has willfully failed to state a ma terial fact or has willfully concealed a material fact requires expert testimony to establish the disclosures that would be made by a reasonable medical practitioner under the same or like circumstances. 280 Kan. at 232, 240, 242, 244, 246.\\nA question arises, however, whether an intervening statutory amendment, which effectively overruled Williamson, applies to this case. Effective May 24, 2007, the legislature amended the KCPA to specifically exclude medical professionals from its coverage. L. 2007, ch. 194, sec. 1 (H.B. 2451). K.S.A. 2007 Supp. 50-635(b) now reads:\\n\\\"The Kansas consumer protection act does not allow for a private cause of action or remedy against a licensed health care provider for causes of action for personal injury or death resulting, or alleged to have resulted, from medical negligence. For purposes of this subsection, 'health care provider' shall have the same meaning as provided in subsection (a)(1) of K.S.A. 65-4915, and amendments thereto.\\\"\\nOur consideration of whether the provision applies to this case\\u2014 in other words, whether it applies retroactively \\u2014 is governed by two general rules. First, a statutory amendment operates prospectively unless the language of the statute clearly shows that it is the intention of the legislature that it operate retroactively. Second, even if there is a clear indication the legislature intends the amendment to operate retroactively, it will not be applied if doing so interferes with vested, substantive rights. Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220-21, 73 P.3d 753 (2003); Olathe Community Hospital v. Kansas Corporation Comm'n, 232 Kan. 161, 166, 652 P.2d 726 (1982); Jones v. Garrett, 192 Kan. 109, 115, 386 P.2d 194 (1963).\\nApplying these rules to this provision, we conclude the 2007 amendment to K.S.A. 50-635(b) \\u2014 i.e., K.S.A. 2007 Supp. 50-635(b) \\u2014 cannot be applied retroactively. The legislature did not express or evidence a clear intent that the amendment was to be retroactive, and the amendment is substantive and is not merely procedural because the amendment excludes one class of \\\"suppliers\\\" previously covered by the KCPA. Consequently, the amendment would terminate the substantive rights of litigants in pending cases filed under the prior version of the KCPA.\\nHence, our holding in Williamson applies to this case, and an application of Williamson reveals that the district court erred in granting summary judgment to VinZant on Kelly s KCPA claims on the basis that the KCPA had no application on the facts.\\nCourt of Appeals\\nNevertheless, we must consider the Court of Appeals' conclusion that the district court was right for the wrong reason because the jury's resolution of the malpractice action prevented Kelly from proceeding on the fraud and KCPA claims. See Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 239, 32 P.3d 705 (2001) (decision will be upheld even though wrong ground relied upon if result was correct).\\nAs previously discussed, the Court of Appeals considered the fraud and KCPA claims together, rejecting the claims on several grounds. Two of these grounds have already been discussed: (1) The alleged statement of fraud was disproved with regard to Kelly as a result of the no-fault finding in the medical malpractice action and (2) \\\"Kelly did not justifiably rely on VinZant's statement to his detriment because the medical malpractice action failed.\\\" In addition, the Court of Appeals concluded that \\\"where there are no damages, this discussion is academic.\\\" Kelly, 2007 WL 1239300, at *4-5.\\nIn reaching these conclusions, the Court of Appeals noted that there are several significant differences between a statutoiy KCPA claim and one sounding in common-law fraud. For example, the KCPA prohibits deceptive acts and practices in regard to consumer transactions whether or not a consumer was in fact misled. K.S.A. 50-626(b); PIK Civ. 4th 129.01. In addition, the burden of proof differs; KCPA claims may be established by a preponderance rather than clear and convincing evidence applied to common-law fraud claims. See Ray v. Ponca/Universal Holdings, Inc., 22 Kan. App. 2d 47, 913 P.2d 209 (1995); PIK Civ. 4th 129.02. Similarly, there are differences between a claim under the KCPA and negligence; in fact, there is little (or no) similarity between a KCPA claim and a medical malpractice negligence claim. Thus, it is pos sible for Kelly to prove a claim under the KCPA even if he cannot prove a negligence or common-law fraud claim.\\nIn considering the specifics of this action, there are several statutorily defined deceptive acts and practices that are potentially applicable to the statement that \\\"[a]ll my surgeries are good; I do not do bad surgeries.\\\" First, \\\"the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact\\\" is a violation. K.S.A. 50-626(b)(2). Second, \\\"the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact\\\" meets the definition of a deceptive act or practice. K.S.A. 50-626(b)(3). Finally, the statement could be considered an unconscionable act if \\\"(1) [t]he supplier took advantage of the inability of the consumer reasonably to protect the consumer s interests because of the consumer's physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor\\\" or \\\"(6) the supplier made a misleading statement of opinion on which the consumer was likely to rely to the consumer's detriment.\\\" K.S.A. 50-627(b)(3), (6).\\nObviously, the jury did not consider the elements of these provisions. Instead, after hearing, inter alia, expert testimony concerning the standard of care, the anatomy of a hernia, the operating procedure, and VinZant's defense, the jury concluded that VinZant was not at fault in connection with the October 22, 1999, surgery (the first of the three); for failing to perform imaging studies prior to the April 7, 2000, surgery (the second surgery); or in failing to inform Kelly of the potential risks of nerve damage prior to any of the surgeries.\\nYet, to the extent the statement \\\"[a]ll my surgeries are good; I do not do a bad surgeiy\\\" is considered as meaning \\\"I do not commit malpractice\\\" or as an attempt to conceal malpractice, the Court of Appeals is correct that the verdict answers that there was no malpractice and nothing to conceal. Thus, the verdict negates an allegation that VinZant made \\\" [representations made knowingly or with reason to know that . . . services have . . . characteristics, . . . benefits or quantities that they do not have\\\" or that \\\"services are of particular standard [or] quality . . . which differs materially from the representation.\\\" K.S.A. 50-626(b)(l)(A), (D).\\nOn the other hand, when considering Kelly s argument that the allegedly false statement induced his consent to the subsequent surgeries, nothing inherent in the answers supplied by the jury on the special verdict form answers whether VinZant's statement violated the KCPA. That is, the jury was not asked, nor does its verdict tell us, whether VinZant willfully exaggerated a material fact, K.S.A. 50-626(b)(2), or concealed a material fact, K.S.A. 50-626(b)(3). Nor does the jury's verdict resolve whether VinZant \\\"took advantage\\\" of Kelly's inability to protect his own interest because of his ignorance of VinZant's procedure or surgical track record, a potential ground for unconscionability, which is a question for the court. See K.S.A. 50-627(b)(l), (6); Williamson v. Amrani, 283 Kan. 227, 152 P.3d 60 (2007).\\nConsequently, the jury's conclusion that VinZant did not commit negligence in performing either the second or third surgeries is not necessarily determinative of whether any violations of the KCPA occurred.\\nThe other reason cited by the Court of Appeals for upholding the judgment on the KCPA claims 'was that \\\"where there are no damages, this discussion in academic.\\\" Kelly, 2007 WL 1239300, at *5. There are at least two flaws in this conclusion. First, the juiy's verdict does not eliminate the possibility that Kelly suffered damages. By finding no negligence, the juiy may have agreed that VinZant did not breach his standard of care. Or it may have concluded that any breach of the standard of care in the first surgery, or in failing to perform imaging studies prior to the second surgeiy, or in failing to inform Kelly of the potential risks of nerve damage was not the proximate cause of Kelly's injuries. These conclusions do not foreclose the possibility of damages that could be recoverable on a ground other than negligence.\\nSecond, the KCPA allows recovery for damages apart from those recoverable in a successful medical malpractice claim. K.S.A. 50-634 allows recovery for damages or civil penalties, whichever is greater, and for attorneys fees for KCPA violations; see PIK Civ. 4th 171.02 (types of damages allowed in personal injury suit); PIK Civ. 4th 171.44 (punitive damages); see also Lantz v. City of Lawrence, 232 Kan. 492, 500-01, 657 P.2d 539 (1983) (stating circumstances in which Kansas case law permits recovery of damages for mental distress without physical injuiy).\\nTo recover these damages, a party must establish that he or she was aggrieved by a violation of the KCPA. K.S.A. 50-634; Finstad v. Washburn University, 252 Kan. 465, 845 P.2d 685 (1993). As stated in Findstad: \\\" ' \\\"A party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order.\\\" ' [Citation omitted].\\\" 252 Kan. at 472. Kelly alleges his right to self-determination was invaded by VinZant and he suffered damages as a result.\\nHence, we conclude the Court of Appeals erred in holding that Kelly's KCPA claims could be dismissed as a matter of law because of the jury verdict, and we reverse.\\nWe note that VinZant raised several other arguments regarding the viability of Kelly's KCPA claims and the nature of Kelly's damages. Because of the nature of the district court's decision, these issues were not developed on appeal, are not subject to the petition for review, and are not framed for our resolution. We, therefore, remand to the district court for further proceedings on Kelly's KCPA claims.\\nBattery\\nKelly alleges VinZant committed batteries by performing surgery on April 7 and April 15, 2000. It was not until April 15, 2002, that Kelly filed his lawsuits. Obviously, this means the two actions were not timely filed if the 1-year statute of limitations for battery, K.S.A. 60-514(b), applies and if the statute began to run when the surgeries occurred and was not tolled. Kelly seeks to avoid this result by arguing the statute of limitations was tolled because he was not aware of VinZant's fraud and it was the fraud that invalidated his consent to the surgeries. As Kelly notes, while K.S.A. 60-513(a)(3) states that a cause of action for fraud shall not be deemed to have accrued until the fraud is discovered, K.S.A. 60-514(b) is silent as to the moment when a cause of action for battery accrues. Kelly argues, in part, that the fraud discovery provision should be grafted onto the battery statute of hmitations.\\nThe district court rejected this argument, concluding the 1-year battery limitation applied without any tolhng, and dismissed Kelly's battery claims based on the statute of hmitations. The Court of Appeals agreed with this conclusion.\\nAs a prehminary matter, part of Kelly's argument that the district court erred in dismissing the battery claims relies on a \\\"Tolhng Agreement\\\" allegedly reached by the parties early in the litigation. This agreement does not appear in the record on appeal. An appellant has the burden to designate a record sufficient to establish the claimed error; without such a record, the claim of error fails. City of Mission Hills v. Sexton, 284 Kan. 414, 435, 160 P.3d 812 (2007).\\nIn addition, Kelly argues also that the district court and Court of Appeals erred in ruling that the statute of hmitations for battery is not subject to tolhng based on the fraud. Although Kelly agrees that consent is a defense to battery, see Charley v. Cameron, 215 Kan. 750, 757, 528 P.2d 1205 (1974), and admits that he gave consent to VinZant to perform the second and third surgeries, he asserts where consent is initially given but has been procured by fraud it is invalid and an action for battery will he. See Spikes v. Heath, 175 Ga. App. 187, 189-90, 332 S.E.2d 889 (1985), superceded by statute as stated in Albany Urology v. Cleveland, 272 Ga. 296, 528 S.E.2d 777 (2000); 6 Am. Jur. 2d, Assault and Battery \\u00a7 118 (consent is ineffective and does not provide a defense where it is obtained by fraud or duress); Restatement (Second) of Torts \\u00a7 892B (1977). Building upon this legal foundation, he argues his consent to the batteries (the second and third surgeries) was induced by VinZant's statement that \\\"[a]ll my surgeries are good; I do not do bad surgeries\\\" and it was only once the fraudulent character of that statement was discovered that the hmitations period began running. In other words, Kelly asks this court to apply the hmitations period applicable to a fraud claim to his batteiy claims, because fraud is an \\\"indispensable element\\\" of those claims.\\nTo support his argument, Kelly cites Spitler v. Dean, 148 Wis. 2d 630, 436 N.W.2d 308 (1989), in which the Wisconsin Supreme Court held \\\" '[t]he statute [of hmitations] should not commence to run until the plaintiff with due diligence knows to a reasonable probability of injury, its nature, its cause, and the identity of the allegedly responsible defendant/ [Citation omitted.]\\\" 148 Wis. 2d at 635.\\nVinZant counters that this creative cause of action \\u2014 battery by fraud \\u2014 is not legally supported by Kansas law. Specifically, he argues that fraud and battery are distinct theories of recovery. The statute of hmitations for batteiy is 1 year and accrues at the time of the batteiy. The statute of hmitations for fraud is 2 years and accrues at the time the fraud is discovered.\\nWe agree with VinZant's position. Our law is clear: A cause of action for battery accrues when, as the district court stated, \\\"the scalpel is put to the skin.\\\" Further, \\\" ' \\\"[t]hrough clever pleading or by utilizing another theory of law, the assault and battery cannot be [transformed] into another type of action subject to a longer statute of hmitations as it would circumvent the statute of hmitations for assault and batteiy to allow that to be done.\\\" ' [Citations omitted.]\\\" Baska v. Scherzer, 283 Kan. 750, 766, 156 P.3d 617 (2007).\\nThe legislature defines periods of hmitations and, in several instances, has provided that the action does not accrue until discovered. The obvious example is the fraud hmitations provision which states the \\\"cause of action shah not be deemed to have accrued until the fraud is discovered.\\\" K.S.A. 60-513(a)(3). Similarly, K.S.A. 60-513(b), which applies to \\\"[a K.S.A. 60-513(a)(7)] cause of action arising out of the rendering of or the failure to render professional services by a health care provider\\\" (and which is not relied upon by Kelly), provides the 2-year hmitations period\\n\\\"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 hmitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.\\\" K.S.A. 60-513(b).\\nIn contrast, however, the battery hmitations provision does not contain any similar language, merely providing an action for batteiy shall be brought within 1 year. K.S.A. 60-514(b). Kelly asks us to graft an exception onto K.S.A. 60-514 such as the legislature has provided in K.S.A. 60-513. That argument belongs in the legislature, not here.\\nApplying the statute as written, we hold the statute of hmitations begins to run on a battery claim at the time of a touching, even if a consent leading to the touching was vitiated by fraud not discovered immediately. The legislature has not provided an exception to or stated any circumstances extending the statute of hmitations for battery based upon concealment of fraud or an inability to discover the battery.\\nOne final consideration is whether the gravaman of Kelly's causes of action is battery or fraud. Although Kelly alleges battery by fraud in his petition, calling for the application of a 2-year statute of hmitations, \\\"this court is not bound by the claims as set forth in the petition. Instead, ' \\\"[t]he law of this state is realistic. Substance prevails over form.\\\" ' [Citations omitted.]\\\" Baska, 283 Kan. at 755. Kelly's \\\"battery by fraud\\\" claims seek damages arising from the surgeries themselves, that is, from the alleged unlawful touchings that occurred April 7, 2000, and April 15, 2000. Those causes of action accrued at the times of the touchings. The alleged fraud does not resurrect the otherwise expired claims of battery or prevent their accrual.\\nAffirmed in part, reversed in part, and remanded to the district court with directions.\"}"
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+"{\"id\": \"3674631\", \"name\": \"In the Matter of Thomas O. Rost, Respondent\", \"name_abbreviation\": \"In re Rost\", \"decision_date\": \"2009-07-17\", \"docket_number\": \"No. 101,746\", \"first_page\": 290, \"last_page\": \"313\", \"citations\": \"289 Kan. 290\", \"volume\": \"289\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T20:57:49.501784+00:00\", \"provenance\": \"CAP\", \"judges\": \"Luckert, and Rosen, JJ., not participating.\", \"parties\": \"In the Matter of Thomas O. Rost, Respondent.\", \"head_matter\": \"No. 101,746\\nIn the Matter of Thomas O. Rost, Respondent.\\n(211 P.3d 145)\\nOpinion filed July 17, 2009.\\nStanton A. Hazlett, disciplinary administrator, argued the cause and was on the brief for the petitioner.\\nDan E. Turner, of Turner & Turner, of Topeka, argued the cause and Phillip L. Turner, of same firm, was with him on the brief for respondent, and Thomas O. Rost, respondent, argued the cause pro se.\", \"word_count\": \"9244\", \"char_count\": \"57139\", \"text\": \"Per Curiam:\\nThis case is an original, contested disciplinary action against Thomas O. Rost, who was admitted to practice law in this state on February 16,1966, but who has registered with the Kansas Supreme Court as being on retired status since October 1, 2005. The formal complaint filed by the office of the Disciplinary Administrator contained two counts, designated as Cases Nos. DA9925 and DA10014. The overarching allegation is that Rost continued to actively practice law while on retired status. See Supreme Court Rule 208(a) and (f)(1) (2008 Kan. Ct. R. Annot. 307) (attorney registered as retired not permitted to practice law in this state).\\nRost's current retired status was the result of three prior disciplinary complaints, DA8437, DA8440, and DA8946. In those cases, the Disciplinary Administrator agreed to recommend that Rost receive an informal admonishment in exchange for Rost's agreement to retire from the practice of law by October 1, 2005. As part of a June 6, 2005, \\\"settlement\\\" agreement with the Disciplinary Administrator, Rost agreed to immediately begin the transition of all of his pending \\\"cases, guardianships and conservatorships[,] and other legal business\\\" to a Kansas licensed attorney and to file petitions to obtain court approval to resign from any active guardianships and/or conservatorships. The review committee accepted the agreement, and the Disciplinary Administrator informally admonished Rost for violating Kansas Rule of Professional Conduct (KRPC) 1.5 (2008 Kan. Ct. R. Annot. 448) (attorney fees) and KRPC 8.4 (2008 Kan. Ct. R. Annot. 586) (misconduct). Rost took retired status with the Clerk of the Appellate Courts effective October 1, 2005.\\nApparently in conjunction with his \\\"retirement,\\\" Rost entered into an agreement to sell his \\\"client base and files\\\" to Eric Kjorlie, an attorney who rented office space in Rost's law office building. The purchase price was \\\"five times his net earnings from the 2004 practice of law,\\\" payable solely from \\\"the proceeds of [Rost's] client base.\\\" The parties agreed \\\"to share expenses on agreed items such as copier, stamp machine, etc.\\\" and Rost agreed to provide \\\"administrative assistance\\\" to Kjorlie. Kjorlie testified that, pursuant to the agreement, he retained one-half of any fee generated from Rost's client base to utilize for expenses, giving Rost the other half as payment upon the agreement. The Disciplinary Administrator did not challenge the propriety of this agreement, and any issue in that regard is not currently before the court.\\nAfter retiring, Rost began a self-described consulting business at the same location where he had practiced law, and where he had previously been associated with his father in the practice of law. Rost changed the sign in front of the building from \\\"Rost & Rost Attorneys at Law\\\" to \\\"Rost & Rost Consulting, Incorporated,\\\" albeit there was no other Rost associated with the new business.\\nThe count designated as case DA9925 emanated from a complaint filed with the Disciplinaiy Administrator by Shawnee County District Judge Frank Yeoman, who was presiding over certain conservatorship cases in which Rost was involved, after his retirement. The judge was particularly concerned about an April 14, 2006, letter signed by Rost, which was on \\\"Rost & Rost Attorneys at Law\\\" letterhead, and which explained that a delay in filing a conservatorship final accounting was due to the illness of Rost's paralegal. The judge noted that, even after his retirement, Rost had \\\"continued to identify himself with name and [attorney] registration number\\\" in all of the documents filed in the conservatorship cases and that it appeared to the judge that Rost continued \\\"to maintain the same staff, work out of the same office, and even . . . use the same letterhead identifying him as an attorney.\\\" The judge ex pressed his concern that a client might not be able to discern that Rost was no longer permitted to actively practice law.\\nThe count designated DA10014 arose from a complaint letter from James G. Chappas, a Kansas attorney hired by Mr. David Lloyd to find out what Rost had done to earn the fees Lloyd had paid to Rost. Chappas was unable to obtain an itemization and documentation of the work performed for those fees. Rost's relationship with Lloyd began prior to Rost's retirement but continued thereafter.\\nThe Disciplinary Administrator assigned Scott Hesse to investigate the complaints. Hesse interviewed Judge Yeoman, Lloyd, Chappas, and the respondent, Rost. During his 2006 interview with Rost, Hesse observed that Rost's law school diploma and certificates of bar admission issued by the Kansas Supreme Court and the Kansas federal district court were displayed on the office walls. Hesse also noticed a check on Rost's desk that was payable to \\\"Rost and Rost, Attorneys at Law.\\\"\\nIn the interview with Hesse, Rost labeled himself a \\\"paralegal.\\\" Rost related that he would go to court with his former clients and their new attorney and explain what was going on in the case, so that the new attorney would not need to look through a thick case file. Also during the interview, Hesse did an internet search of Rost's name and discovered three websites identifying Rost as an attorney actively practicing criminal law, one of which had been updated in March 2006. Rost denied knowingly advertising on those websites.\\nIn answering the formal complaint, Rost asserted that the hearing panel did not have jurisdiction to discipline a retired attorney. In response, the panel scheduled a prehearing conference, at which Rost was instructed to file a formal motion challenging jurisdiction. Rost's May 13, 2008, formal motion to dismiss was overruled by the panel, and Rost sought relief from that ruling from the Supreme Court. On July 14, 2008, this court overruled Rost's motion, finding that the Supreme Court and the Disciplinary Administrator had jurisdiction to consider the disciplinary complaints, notwithstanding Rost's retired status. Thereafter, the hearing panel proceeded with the formal hearing, with Rost continuing to object to jurisdiction.\\nFollowing the hearing, the panel filed a final hearing report on January 12, 2009, in which it found that Rost had violated KRPC 5.5(a) (2008 Kan. Ct. R. Annot. 565) (unauthorized practice of law); KRPC 8.4(d) (2008 Kan. Ct. R. Annot. 586) (conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 208(a) (2008 Kan. Ct. R. Annot. 307) (only attorneys registered as active may practice law in Kansas). Pursuant to Supreme Court Rule 212 (2008 Kan. Ct. R. Annot. 327), Rost filed exceptions to the panel's findings and submitted a brief to this court. Accordingly, we set forth the panel's factual findings:\\n\\\"FINDINGS OF FACT\\n\\\"16. The Hearing Panel finds the following facts, by clear and convincing evidence:\\n\\\"17. Thomas O. Rost (hereinafter'the Respondent') is an attorney at law, Kansas Attorney Registration No. 6297. His last registration address with the Cleric of the Appellate Courts of Kansas is 827 Southwest Topeka Boulevard, Topeka, Kansas 66612. The Respondent was admitted to the practice of law in the State of Kansas on February 16,1966.\\n\\\"18. In 2001 and 2003, three disciplinary complaints were filed against the Respondent, DA8437, DA8440, and DA8946. The Review Committee of the Kansas Board for Discipline of Attorneys directed that a Hearing Panel conduct a Formal Hearing regarding the three complaints.\\n\\\"19. Prior to the hearing, the Disciplinary Administrator and the Respondent entered into an agreement regarding the resolution of the three complaints. Specifically, the Disciplinary Administrator agreed to recommend to the Review Committee that it direct that the Respondent be informally admonished by the Dis-' ciplinary Administrator for the rule violations in the three disciplinary cases in return for the Respondent's agreement to retire from the practice of law. The Disciplinary Administrator and the Respondent submitted die agreement to the Review Committee.\\n\\\"20. The Review Committee accepted the agreement of the parties and directed that the Disciplinary Administrator informally admonish the Respondent for the rule violations contained in DA8437, DA8440, and DA8946. The Respondent registered with the Clerk of the Appellate Courts as retired, as of October 1,2005.\\n\\\"21. In an undated agreement, the Respondent agreed to sell his practice to Eric Kjorlie.\\n\\\"22. The Respondent and Mr. Kjorlie shared the fees that were received pursuant to the agreement. At the hearing on this matter, Mr. Kjorlie testified regarding this subject, as follows:\\n'Q. [By Mr. Hazlett] Do you have any \\u2014 did you have any agreement with how you would handle fees under those circumstances?\\n'A. [By Mr. Kjorlie] Those fees would be brought in, I would put it into an account, and then we would split it out so we could maintain the office operation there in terms of sharing the fax machines, the company machines, the scanning machines, and that kind of an arrangement.\\n'Q. As a practical matter let's say somebody came in that was a client of Mr. Rost's and let's say this happens after October 1st of 2005, pays you a $2,000 retainer, how would that be split up?\\n'A. Well, if it was a client that come [sic] in on that type of a referral I would put the money into the 8227 account. Half would come in to maintain operations and expenses I could draw from that, tire other half would go into this agreement and that's basically how we operated.\\n'Q. So half would go to tire payment of this exhibit \\u2014 your obligations under this exhibit 12 agreement?\\n'A. Right.'\\n\\\"23. Prior to the Respondent's retirement, the Respondent practiced at 827 Southwest Topeka Boulevard, Topeka, Kansas. The Respondent's paralegal was Tonya McConnell. Located in front of the Respondent's building was a sign that read, 'Rost & Rost, Attorneys at Law.' During his father's lifetime, tire Respondent practiced with his father.\\n\\\"24. Following tire Respondent's retirement, he continued to work at 827 Southwest Topeka Boulevard, Topeka, Kansas. The Respondent had tire sign changed to read, 'Rost & Rost Consulting, Inc.'\\nDA9925\\n\\\"25. On April 14, 2006, the Respondent sent a letter to the Honorable Frank Yeoman, Jr., in case number 91GC126, In re Jeffrey Dusseault. The letter was prepared on the Respondent's law firm letterhead and identified tire Respondent as an attorney. The letter provided:\\n'This letter is in response to Mr. Hehtmanek's letter of April 13, 2006. Please be advised that within tire next 14 days the final accounting for the above referenced case will be filed with tire Cleric of tire District Court.\\n'My office has been short staffed due to my paralegal having surgery and being out for 6 weeks and now back only part time.'\\nThe Respondent's letter would lead a reasonable person to conclude that tire Respondent is an active practicing attorney.\\n\\\"26. On April 25, 2006, the Respondent filed a Petition for tire Approval of Eighth and Final Annual Accounting in tire Dusseault case. The Respondent also filed an Order for Hearing and a Notice of Hearing. The documents were signed by the Respondent and the Respondent included his attorney registration number.\\n\\\"27. Judge Yeoman wrote to the Disciplinary Administrator's office regarding his observations of the Respondent. W. Scott Hesse was assigned to investigate Judge Yeoman's complaint. During tire course of his investigation, Mr. Hesse called the Respondent's office to schedule an interview. When Mr. Hesse called the Respondent, the Respondent answered the telephone and stated, 'Rost & Rost.'\\n\\\"28. Mr. Hesse scheduled an interview with the Respondent in the Respondent's office. When Mr. Hesse went to the Respondent's office, he observed the Respondent's law license hanging on the wall. Additionally, Mr. Hesse observed a check at the Respondent's office titled, Rost & Rost, Attorneys at Law.\\n\\\"29. During the interview, the Respondent stated that he was retired from the practice of law and considered himself a paralegal. The Respondent told Mr. Hesse that he continues to meet with clients but that if a client wanted to go to court, he would refer the client to another attorney. The Respondent stated that he would also go to court with the client and the attorney so that he could assist the attorney handling the case.\\n\\\"30. The Respondent told Mr. Hesse that his client base for Rost & Rost Consulting, Inc. was the same client based as Rost & Rost, Attorneys at Law. The Respondent informed Mr. Hesse that he intended to advise his clients on business issues, including farming, real estate, military matters, and other matters.\\nDA10114\\n\\\"31. William Fish, a veteran, was declared incompetent by the Veterans Administration. Judge Yeoman appointed David Lloyd, a friend of Mr. Fish, as curator for Mr. Fish, so that Mr. Lloyd could manage Mr. Fish's financial matters.\\n\\\"32. At the time the curatorship was initiated, Robert Coulthard represented Mr. Lloyd in his capacity as Mr. Fish's curator. Because Mr. Coulthard was unable to appear with Mr. Fish at a hearing held August 4, 2004, at Mr. Coulthard's request, Mr. Kjorlie appeared with Mr. Lloyd. At that time, and continuing to today, Mr. Kjorlie rents office space in the Respondent's building.\\n\\\"33. On March 30, 2005, Mr. Lloyd came to the Respondent's office and requested that the Respondent assist him in reconstructing the records relating to the first seven months of Mr. Fish's curatorship. At that time, Mr. Lloyd paid the Respondent $600.00 from Mr. Fish's account. In the memo fine, Mr. Lloyd indicated that the check was for 'Legal Fee's VA.'\\n\\\"34. On March 31, 2005, Mr. Lloyd and the Respondent continued working together on reconstructing the records relating to Mr. Fish's curatorship.\\n\\\"35. On April 4, 2005, Mr. Lloyd and the Respondent went to US Bank to request bank records.\\n\\\"36. On May 2, 2005, Mr. Lloyd paid the Respondent $678.00 from Mr. Fish's account. In the memo line, Mr. Lloyd indicated that the check was for 'accounting forVA.'\\n\\\"37. On June 24, 2005, Mr. Lloyd paid the Respondent $600 from Mr. Fish's account. In the memo line, Mr. Lloyd indicated that the check was for 'audit Bill Fish.'\\n\\\"38. The first annual accounting in Mr. Fish's curatorship was due in August, 2005. However, Mr. Lloyd did not prepare and file the annual accounting as required by the Court.\\n\\\"39. On October 18,2005, Mr. Lloyd paid the Respondent $600.00 for 'attorney fees.'\\n\\\"40. On March 9, 2006, Mr. Lloyd received a letter from the Veterans Administration indicating that Mr. Fish's benefits were suspended because Mr. Lloyd failed to file the annual accounting in a timely manner.\\n\\\"41. After Mr. Fish's benefits were suspended, Mr. Lloyd came to the Respondent's building for assistance. Thereafter, on April 26, 2006, a First Annual Accounting, covering the period from August 27,2004, to August 26,2005, was filed in Mr. Fish's curatorship.\\n\\\"42. In the First Annual Accounting, Mr. Lloyd acknowledged that he paid the Respondent a total of $1,878.00 for 'Accounting Legal Fees.'\\n\\\"43. On May 15, 2006, the Office of Regional Counsel of the Veterans Administration objected to the First Annual Accounting. One of the objections was based upon the 'Accounting Legal Fees' paid to the Respondent. Another objection lodged by the Veterans Administration included:\\n'The ward was renting the home, which he shares with Mr. Campa, an expense for rent of $350.00 for rent to Mr. Lloyd shows each month until 1-03-05 when mortgage payment to tire Educational Credit Union of $691.00 appears and does each month for the remainder of the accounting period along with repair expenses for the residence, plumbing of $1,645.69, A/C repair $197.49 and monthly expense of over $100.00 to Orkin for pest control. The assets listed shows a home with a value of $35,900.00 and a mortgage of [$] 10,467.50, [sic] this belonged to the Curator David J. Lloyd and his spouse. No rent payments from Mr. Campa are reflected in the accounting.'\\n\\\"44. In May, 2006, Mr. Lloyd met with the Respondent regarding tire issues raised by the Veterans Administration regarding the rent and mortgage payments made and the ownership of the property where Mr. Fish resided. Mr. Lloyd paid the Respondent $3,500 to assist him with resolving the problem with the property. The Respondent told Mr. Lloyd that Mr. Lloyd would have to 'make peace' with Mr. Kjorlie, the Court, and the Veterans Administration, over the issue with the property.\\n\\\"45. The Respondent contacted the title company and determined the ownership of the property. The Respondent accompanied Mr. Lloyd to the bank to determine how Mr. Lloyd financed the property.\\n\\\"46. In order to resolve the problem with the property, the Respondent recommended to Mr. Lloyd that he execute a quitclaim deed regarding the properly in question in favor of Mr. Fish. On May24,2006, Mr. Lloyd and his wife executed a quitclaim deed in Mr. Fish's favor. The quitclaim deed was prepared by Ms. McConnell.\\n\\\"47. On May 24, 2006, Mr. Lloyd filed an Amended Petition for the Approval of First Annual Accounting and Approval of Successor Curator. The pleading was prepared after Mr. Lloyd met with the Respondent. The pleading purports to have been made and filed by Mr. Kjorlie. In the pleading, regarding the fees paid to the Respondent, Mr. Lloyd stated:\\n'The legal issues and reconstruction issues totaling One Thousand Eight Hundred Seventy-Eight Dollars ($1,878.00) are due to locating lost bank statements; acquiring duplicate bank statements from the financial institution; reconstruction of the transactions during this accounting period using the bank statements, can-celled checks and check registers, which took a number of hours in order to prepare the First Annual Accounting.'\\nFurther, in response to the issue raised concerning the rent and mortgage payments made and the ownership of the property, Mr. Lloyd stated:\\n'3. That the Petitioner prior to the curatorship on August 19, 2002, purchased a 24' x 41' mobile home and placed the mobile home on four (4) lots that were owned by the Petitioner and then sold the mobile home and lots to William A. Fish for a total amount of Twenty-Five Thousand Three Hundred Dollars ($25,300.00).\\n'4. That William A. fish [sic] at the time could not qualify for a loan to purchase a living space for himself and his caregiver.\\n'5. That the Petitioner states that the loan is now paid in full and the home and lots are deeded to William A. Fish.\\n'6. Any sum shown as rent was made as loan payments not rent.\\n'8. That the Petitioner states that Raymond R. Campa is not a tenant; Raymond R. Campa is a full time caregiver and receives monthly room and board along with a weekly salary in the amount of Three Hundred Eleven Dollars ($311.00).'\\nFinally, Mr. Lloyd requested that Mr. Kjorlie be appointed as successor curator.\\n\\\"48. Mr. Lloyd suffered various health problems and had difficulty in recalling the reason for paying the Respondent the $3,500.00. On June 19,2006, Mr. Lloyd retained James G. Chappas to assist him in determining what Mr. Lloyd had paid the Respondent to do. To that end, Mr. Chappas wrote to the Respondent.\\n\\\"49. On June 28, 2006, Mr. Kjorlie responded to Mr. Chappas in behalf of the Respondent, informed Mr. Chappas that he was representing the Respondent, and stated that Mr. Lloyd paid the Respondent the $3,500 for a business financial analysis relating to ownership by Mr. Lloyd of a piece of real estate.\\n\\\"50. On June 29, 2006, Mr. Chappas wrote to Mr. Kjorlie and requested an itemization of the time expended in earning the $3,500.00. Neither the Respondent nor Mr. Kjorlie provided Mr. Chappas or his client with an itemization of the time expended in earning the $3,500.00.\\n\\\"51. On July 6, 2006, Judge Yeoman sent Mr. Kjorlie a letter regarding the Amended First Annual Accounting. In the letter, Judge Yeoman stated:\\n'The appearance of payments as reflected in the accounting made to Rost & Rost is rather \\\"out of the blue\\\" since Thomas Rost had nothing to do with this case that was known to the Court. I have since learned more about this situation (VA attorney had made inquiry before me) so I am now at least informed that Mr. Lloyd went to Rost for help with his accounting. Why he would do that I do not know! Lloyd's records were, so I am told, in disarray and he required help. Rost was not his attorney, you were, and you have insisted that you and Rost have only an office sharing relationship.\\n'The payments were made for \\\"accounting legal fees,\\\" whatever that terminology may mean. I know Mr. Rost is not an accountant and was, at that time, engaged in the practice of law. Lloyd was not authorized to pay a lawyer by use of the curatorship assets for services rendered without having first obtained permission of the Court by appropriate pleadings and order. The curator is ordered to reimburse the estate for all sums paid from the curatorship to the law firm of Rost and Rost \\u2014 to the best of my knowledge that would be the total sum of $1,878.00 based on what is reported. He will have the opportunity to show, by appropriate documentation, the justification for the payments and this order will be reconsidered if he does that.'\\n\\\"52. Mr. Kjorlie responded to the judge's letter on July 20, 2006. In that letter, Mr. Kjorlie explained what the Respondent did to earn the $1,878.00 in fees. Mr. Kjorlie, however, failed to file a motion with the Court to allow the fees.\\n\\\"53. On September 4, 2006, Mr. Chappas wrote to Mr. Kjorlie and requested information regarding the Respondent's malpractice carrier.\\n\\\"54. On September 20, 2006, Mr. Kjorlie wrote to Mr. Chappas. Mr. Kjorlie did not provide Mr. Chappas with information regarding the Respondent's mal practice carrier. Regarding the $3,500.00, Mr. Kjorlie stated: 'Mr. Rost, in addition, through a great deal of time and effort was able to work out the real estate transaction for which he charged Mr. Lloyd a commission . . .'\\n\\\"55. On September 27, 2006, the Respondent sent a letter to the Disciplinary Administrator's Office. The letter was prepared on the Respondent's law firm letterhead and identified the Respondent as an attorney. However, on September 28, 2006, Ms. McConnell wrote to the Disciplinary Administrator's Office and explained that she was at fault for sending the letter the day before on attorney letterhead.\\n\\\"56. On October 6, 2006, Mr. Kjorlie wrote to Mr. Chappas. Mr.\\nKjorlie asserted that he does not represent the Respondent in regard to the Fish Curatorship. Additionally, Mr. Kjorlie stated:\\n'. . . It is my understanding that at the request of Mr. Lloyd, Mr. Rost as a matter of a business consultation did a background investigation as it relates to the Education Credit Union for a set consulting fee and not as previously stated as a real estate commission, which is inaccurate.' \\\"\\nSTANDARD OF REVIEW\\nIn disciplinary proceedings, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether KRPC violations exist, and, if so, what discipline should be imposed on the respondent. In re McPherson, 287 Kan. 434, 440-41, 196 P.3d 921 (2008); In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Attorney misconduct must be established by clear and convincing evidence. In re Nelson, 288 Kan. 179, 183, 200 P.3d 1262 (2009); Supreme Court Rule 211(f) (2008 Kan. Ct. R. Annot. 313). To be clear and convincing, evidence must establish the truth of the facts asserted is \\\"highly probable.\\\" In re B.D.-Y., 286 Kan. 686, Syl. \\u00b6 3, 187 P.3d 594 (2008). In making that determination, the appellate court should refrain from weighing conflicting evidence, assessing witness credibility, or redetermining questions of fact. In re B.D.-Y., 286 Kan. at 699.\\nHEARING PANEL LEGAL CONCLUSIONS\\nIn finding a violation of KRPC 5.5(a) (2008 Kan. Ct. R. Annot. 565), which prohibits the unauthorized practice of law, the panel relied in part on State v.. Schumacher, 214 Kan 1, 519 P.2d 1116 (1974), which it found to be factually analogous. There, \\\"[t]he only act respondent refrained from doing as a lawyer was making a formal appearance in court, i.e., he stayed behind the rail; in all other respects he continued to function just as he had before the suspension.\\\" 214 Kan. at 20. The panel specifically noted Schumacher's quotation from State ex rel., v. Perkins, 138 Kan 899, 908, 28 P.2d 765 (1934):\\n\\\"One who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law.\\\" 214 Kan. at 9.\\nThe panel found that, after Rost took retired status, he continued \\\"to serve his clients in the same manner in the same location under the same name without interruption or discontinuity,\\\" with the only change being to have another attorney \\\"front for him on most court appearances.\\\" The panel recited:\\n\\\"62. After the Respondent registered as a retired attorney, he practiced law. The Respondent held himself out as an active attorney, sent correspondence to the Court indicating that he continued to be an active attorney, utilized his bar number, filed pleadings with the Court, met with clients, provided Mr. Lloyd with legal advice, and directly assisted Mr. Lloyd in resolving legal problems, all in violation of the Respondent's agreement with [the Disciplinary Administrator], Because the Respondent continued to practice law after taking retired status, the Hearing Panel concludes that the Respondent violated KRPC 5.5(a).\\\"\\nWith respect to the remaining violations, the panel declared:\\n\\\"63. 'It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d). In this case, the Respondent engaged in 'conduct that is prejudicial to the administration of justice' when he practiced law when he was not authorized to do so. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).\\n\\\"64. Kan. Sup. Ct. R. 208(a) states, in pertinent part, that, '[o]nly attorneys registered as active may practice law in Kansas.' The Respondent engaged in the practice of law after he took retired status. Because the Respondent practiced law at a time when he was not registered as an active attorney, but rather as a retired attorney, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 208(a).\\\"\\nRESPONDENT'S ISSUES\\nIn his brief to this court, Rost identifies seven issues, which we take the liberty of paraphrasing as follows: (1) The Kansas Supreme Court has no jurisdiction to enforce the Kansas Rules of Professional Conduct against an attorney who has registered as being retired; (2) the hearing panel's conclusions of law regarding the areas of law in which a retired attorney could properly engage in nonlegal work improperly restricts a retired person's business opportunities; (3) the hearing panel improperly ignored Rost's written and oral notifications that he was no longer practicing law; (4) Rost's post-retirement activities did not constitute the practice of law; (5) the hearing panel failed to use the clear and convincing standard; (6) the hearing panel improperly applied the standards for imposing sanctions; and (7) the hearing panel recommendations for sanction were inappropriate.\\nJURISDICTION\\nRost concedes that \\\"[a]ny attorney admitted to practice law in this state and any attorney specially admitted by a court of this state for a particular proceeding is subject to the jurisdiction of the Supreme Court and the authority hereinafter established by these Rules.\\\" Supreme Court Rule 201(a) (2008 Kan. Ct. R. Annot. 261). He does not deny that he was admitted to practice law in this state in 1966. However, he crafts an argument, based upon the provisions of Supreme Court Rules 208(a) and (f)(1) (2008 Kan. Ct. R. Annot. 307), that he ceased to be admitted to practice law when he registered as a retired attorney.\\nSpecifically, Rost points to the provision in Rule 208(a) which permits an attorney to register as \\\"active; inactive; retired; or disabled due to mental or physical disabilities,\\\" and the following requirement that \\\"[o]nly attorneys registered as active may practice law in Kansas.\\\" 2008 Kan. Ct. R. Annot. 307. Likewise, Rost notes that Rule 208(f)(1) declares that \\\"[a]n attorney who has registered as retired, . . . shall not be eligible to practice law in this state.\\\" 2008 Kan. Ct. R. Annot. 308. He then argues that because an attorney registered as retired is not permitted to practice law, such an attorney is not \\\"admitted to practice law\\\" within the meaning of the jurisdictional provisions of Rule 201(a).\\nWe disagree with the suggestion that an attorney loses his or her hard-earned status as an admitted Kansas attorney simply by registering as anything other than \\\"active.\\\" First, Rost ignores that our Rules Relating to Admission of Attorneys are set forth in Rules 701 through 710, inclusive (2008 Kan. Ct. R. Annot. 705-26). Most applicants for admission are governed by Rule 704 (2008 Kan. Ct. R. Annot. 710), entitled Admission to the Bar Upon Written Examination. Those applicants must demonstrate that they are \\\"of good moral character, possessed of the requisite general education, and otherwise qualified to be examined,\\\" prior to taking a written examination to demonstrate their knowledge of the law. Rule 704(c) (2008 Kan. Ct. R. Annot. 711). Then, if an applicant successfully passes the bar examination, the Supreme Court issues an order of admission, which becomes effective upon the talcing of an oath.\\nOnly after successfully clearing the hurdles to obtain admission to the Kansas bar, via Kansas Supreme Court order, is an attorney subject to Rule 208's requirement to annually register with the Clerk of the Appellate Court. Apparently, Rost overlooks the first sentence of Rule 208(a), which specifies that \\\"[a]ll attorneys . . . admitted to the practice of law before the Supreme Court of the State of Kansas shall annually, . . . register with the Clerk of the Appellate Courts . . . .\\\" (Emphasis added.) 2008 Kan. Ct. R. Annot. 307. Such language contemplates that there is a distinction between initially obtaining an order of admission from the Kansas Supreme Court and registering a status with the Clerk of the Appellate Court which provides a current eligibility to actively practice law.\\nMoreover, an attorney s unilateral action does not rescind the Supreme Court's order of admission. For instance, when an attorney voluntarily surrenders his or her license to practice law, the Supreme Court responds with an order of disbarment which directs that the attorney's name be stricken from the roll of attorneys admitted to practice in this state. See Supreme Court Rule 217 (2008 Kan. Ct. R. Annot. 343). Rule 208 does not require a Supreme Court order to permit an attorney to register on retired status with the Clerk of the Appellate Court and that act does not affect the order admitting the attorney to practice law in this state or effect a removal of the attorney's name from the roll of admitted attorneys. Just as telling, Rule 208(f)(1) does not require a retired attorney to comply with the provisions of Rules 701 et seq., relating to the admission of attorneys, in order to be reinstated to active status.\\nAccordingly, we hold that an attorney who has been admitted to practice law in the state of Kansas by order of the Supreme Court, but who has registered with the Clerk of the Appellate Courts as being on retired status, remains subject to the Kansas Rules of Professional Conduct and subject to the enforcement of those rules by the Supreme Court and its designees.\\nRESTRICTING BUSINESS OPPORTUNITIES\\nRost argued to the hearing panel that he was not practicing law because he was merely doing things that a person who is not an attorney might do. For instance, a nonlawyer real estate agent might prepare contracts or deeds, and, therefore, the argument is that a retired attorney is permitted to do the same things without being deemed to practice law.\\nThe hearing panel answered that argument by opining that whether a retired attorney was practicing law when doing tasks that are also performed by nonlawyers depends on the retired attorney s area of practice prior to retirement. For example, a retired trial lawyer could become a real estate broker who completes simple contracts, negotiates deals, and fills out forms without practicing law. On the other hand, a real estate lawyer would be deemed to be practicing law if he or she became a real estate broker performing the same tasks. Rost contends that the panel's area-of-prior-practice rule represents an unconstitutional restriction on a retired attorney's pursuit of business opportunities.\\nFirst, we specifically reject the panel's proposed rule that the determination of whether a retired attorney is engaging in the unauthorized practice of law turns on the nature of the attorney's pre-retirement practice. Apparently, Rost's argument- \\u2014 that he was only doing what nonlawyers often do \\u2014 enticed the panel to promulgate a rule which would provide some guidance on when an attorney can provide law-related services which are often provided by nonlawyers, e.g., real estate brokers, without being subject to the Rules of Professional Conduct. The panel's endeavor to establish a bright-line rule was unnecessary. An attorney's responsibili ties regarding law-related services are specifically defined in KRPC 5.7 (2008 Kan. Ct. R. Annot. 567).\\nKRPC 5.7(b) defines law-related services as those \\\"that might reasonably be performed in conjunction with and in substance are related to the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.\\\" 2008 Kan. Ct. R. Annot. 567. The comments to the rule note that law-related services can involve \\\"[a] broad range of economic and other interests of clients,\\\" examples of which include \\\"providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social, work, psychological counseling, tax preparation, and patent, medical or environmental consulting.\\\" 2008 Kan. Ct. R. Annot. 569. Accordingly, the services which Rost contends that he was providing to his post-retirement clients, e.g., accounting services and business advice, would appear to be enveloped within the definition of law-related services.\\nNevertheless, a lawyer remains subject to the Rules of Professional Conduct even when providing law-related services, i.e., those that are not prohibited as unauthorized practice of law when provided by nonlawyers, when the services are provided:\\n\\\"(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or\\n\\\"(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.\\\" KRPC 5.7 (2008 Kan. Ct. R. Annot. 567).\\nThe comments to the rule describe the potential for ethical problems when a lawyer or lawyer-controlled entity performs law-related services. The principal culprit is the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship. Accordingly, the burden is on the lawyer to show that reasonable measures have been taken to insure that the client understands that he or she may not expect the benefits of a lawyer-client relationship, such as the protection of confidences, the prohibition against representing conflicting interests, or the maintenance of professional independence.\\nIn this respect, the panel's focus on prior practice may be germane, if not determinative. If an attorney continues to perform the same law-related services, for the same clients, from the same location, with the same staff as was done when those services were not distinct from the attorney's provision of legal services, the burden to show the requisite client understanding that the lawyer-client relationship had ceased would appear to be onerous, at best. Nevertheless, the touchstone is not the nature of the prior practice.\\nGiven that finding, we need not belabor Rost's tenuous and obtuse contention that the panel's area-of-practice rule violates some constitutional right to pursue business opportunities. We discern no such constitutional right. Rost's citation to Granholm v. Heald, 544 U.S. 460, 161 L. Ed. 2d 796, 125 S. Ct. 1885 (2005), which dealt with the Commerce Clause, is unavailing. Moreover, even where constitutional rights are implicated, the Supreme Court, by and through the hearing panel, may nevertheless enforce attorney disciplinary rules. See In re Wilkinson, 251 Kan. 546, 555, 834 P.2d 1356 (1992) (constitutional right of free speech subject to regulation in the area of attorney discipline).\\nWRITTEN AND ORAL DISCLOSURES\\nNext, Rost argues that tire hearing panel implicitly found, without any legal support, that Rost's written and oral disclosures to clients \\u2014 that Rost was retired from practicing law \\u2014 were insufficient, as a matter of law, to prevent potential clients from being confused. He points to the fact that he changed his sign to read \\\"Rost & Rost Consulting, Inc.\\\" and his testimony that he told all of his clients that he was retired and not practicing law. Inexplicably, he then embarks on a discussion of what is required to establish a client's waiver of a conflict of interest.\\nWe do not read the final hearing report as making any such matter-of-law finding. To the extent Rost asks us to reweigh the evidence, we decline the invitation.\\nRost's better argument would have been to assert that changing tire name on his sign and telling his clients he was retired from the practice of law were reasonable measures to assure that the clients knew that his law-related services were not legal services subject to the protections of the client-lawyer relationship. Under the circumstances, however, that argument would not have been persuasive. Given the lack of sophistication of his clients and the many other indicia that Rost was still performing legal services, more was required from him to meet his notification burden.\\nDID RESPONDENT PBACT1CE LAW?\\nIn his brief to this court, Rost asserts that the hearing panel based its determination that he was practicing law on five factors: Rost's correspondence with the district court; Rost's use of his Supreme Court registration number on documents filed with the district court; Rost's meeting with clients; Rost's specific meetings with Lloyd; and Rost's resolution of Lloyd's legal problems. He then makes a cursory attempt at refuting those factors.\\nWith respect to the letter to Judge Yeoman on law firm letterhead, Rost asserts that the judge had testified that the Disciplinary Administrator had specifically advised the judge of Rost's retirement and that the letter was prepared by a temporary employee on stationery which was supposed to have been destroyed. Regardless of what the judge might have known, Rost signed a letter to the court, with a copy to another attorney, on stationery identifying Rost as an attorney at a time when he was not permitted to act as an attorney. He must bear responsibility for that act and cannot shift the blame to members of his staff. See Supreme Court Rule 5.3(c) (2008 Kan. Ct. R. Annot. 561) (lawyer is responsible for employed nonlawyer conduct that would be KRPC violation if done by lawyer).\\nWith respect to using his Supreme Court registration number on documents filed with the district court, Rost first contends that he continued to possess his registration number, notwithstanding his retirement. He then argues that \\\"[u]nder Supreme Court Rule 211 [sic] attorneys are required to use their 'Supreme court registration numbers for attorneys' on pleadings.\\\" Presumably, Rost intended to refer to Supreme Court Rule 111 (2008 Kan. Ct. R. Annot. 196), which deals with the form of pleadings in the district court. That rule actually cuts against Rost. It provides that \\\"[a]ll pleadings, briefs, and other papers prepared by attorneys or litigants for filing in the courts . . . shall include the name, Supreme Court registration numbers for attorneys, address, and telephone number of the person filing them.\\\" 2008 Kan. Ct. R. Annot. 196. Clearly, what distinguishes a pleading prepared and filed by an attorney from one that is prepared and filed by a litigant is the inclusion of a Supreme Court registration number. Accordingly, by including his registration number on the documents filed with the district court, Rost was identifying the pleadings as having been prepared and filed by an attorney. At the time, Rost was not authorized to prepare and file pleadings as an attorney.\\nWith respect to meeting with clients, Rost simply refers us back to his argument that the hearing panel improperly restricted his business opportunities. We have rejected the argument that enforcing the prohibition against the unauthorized practice of law violates the Commerce Clause. To the extent that Rost suggests that he was permitted to meet with clients of a \\\"consulting firm\\\" which provided only law-related services, we find that potential argument is belied by Rost's own description of his activities, which will be discussed below.\\nWith respect to the last two factors involving Lloyd, Rost simply argues that Lloyd did not testify that he received legal advice and that the only testimony that exists is Rost's statement that he advised Lloyd to obtain elsewhere the legal advice which Rost could not provide. This summary argument fails to address the fact that Rost investigated the ownership of the real property and the manner in which its purchase was financed; that Rost then determined and advised Lloyd that the discovered facts revealed a legal problem for Lloyd; that Rost recommend\\u00e9d that Lloyd solve his legal problem by executing a quitclaim deed in favor of Mr. Fish; and that a quitclaim deed was prepared by Ms. McConnell, who was identified by Rost as his paralegal. Such a \\\"consulting\\\" endeavor required the application of legal knowledge and constituted the practice of law.\\nPerhaps the best evidence against Rost came from his own characterization of what he was doing after his \\\"retirement.\\\" He told Hesse that he was a \\\"paralegal.\\\" Some years ago, this court opined that a disbarred or suspended attorney could act as a paralegal. However, the activities of such a paralegal are limited.\\n\\\"The 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 hmitations, 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 direcdy or on the telephone, sign correspondence to diem, or contact diem eidier direcdy or indirecdy.\\\" In re Wilkinson, 251 Kan. at 553.\\nRost's first problem is that he was not actually employed by a licensed attorney. Granted, he had an agreement with Kjorlie to sell his client base in which he agreed to provide \\\"administrative assistance\\\" to the buyer. However, the only compensation provision of that agreement involved splitting the future legal fees from Rost's \\\"client base.\\\" In fact, Lloyd made his fee payments directly to Rost, rather than to Kjorlie.\\nMoreover, Kjorlie's testimony clearly refuted that he was acting as Rost's supervising attorney-employer in the matter. For instance, he appeared to be completely unaware of the particulars of the quitclaim deed preparation and was quite confused as to the nature of Lloyd's $3,500 payment to Rost. Rost's activities went far beyond \\\"work of a preparatory nature.\\\" Rather, Rost was operating as an independent paralegal who even employed his own paralegal, McConnell.\\nFurther, as Rost told Hesse, the client base of the post-retirement consulting firm was the same as the law firm's client base. Clearly, Rost made the majority, if not all, of the contacts with the clients. He even acknowledged that he would go to court with a former client and the new attorney to assist with the case. In short, the only change in Rost's activities following retirement is that he would only \\\"second chair\\\" in court and that he would tell his clients he was a \\\"retired attorney.\\\" Rost was practicing law.\\nRost attempts to avoid the rules set forth in Wilkinson by asserting that a retired attorney is different from a suspended or disbarred attorney. He intimates that a retired attorney has more leeway to engage in some sort of limited practice of law than an attorney who has been suspended. We disagree. The reasons for applying the Wilkinson rule \\u2014 e.g. to avoid the appearance of impropriety, to avoid confusion among laypersons, or to avoid the temptation for law-trained clerks (or paralegals) to go beyond mere preparatory work \\u2014 apply as equally to retired attorneys as to suspended or disbarred attorneys. See In re Wilkinson, 251 Kan. 549-51.\\nRost's situation is particularly akin to that of a suspended attorney because he avoided the potential of being placed on that status by agreeing to retire and cease practicing law. He was just as obligated to refrain from the practice of law as if he had been formally suspended.\\nCLEAR AND CONVINCING STANDARD\\nGiven the brevity of Rost's argument on this issue, we can recite it verbatim:\\n\\\"The Hearing Panel admitted in paragraph 41 note 2 that it failed to use the clear and convincing standard as it related to the charge of preparing a legal document. In addition, Judge Yeoman testified that it was merely insinuation that he continued to practice law which of course is not sufficient to meet the clear and convincing standard.\\\"\\nThe panel's footnote does not refute that it applied the correct standard to all of the evidence presented. To the contraiy, it corroborates that the panel knew and applied the correct standard. We are convinced that the truth of the facts presented, many of which came directly from Rost, is highly probable.\\nMoreover, Judge Yeoman's function in this proceeding was to present the facts of which he had knowledge. The fact that this witness did not proffer a definitive legal opinion that Rost was continuing to practice law is of no consequence.\\nSTANDARDS FOR IMPOSING LAWYER SANCTIONS\\nRost recites that he is challenging whether the standards for imposing lawyer sanctions were violated. For argument, however, he simply argues the facts, in effect urging us to reweigh the evidence and reassess witness credibility. We need not rehash the facts. Moreover, we find that the hearing panel correctly applied the applicable standards.\\nAPPROPRIATENESS OF HEARING PANEL RECOMMENDATION\\nThe hearing panel noted that this case is unique, and it crafted a recommended sanction which it felt would rectify the misconduct and prevent future misconduct. It recommended that Rost be disciplined by published censure, and in conjunction with the censure that the Supreme Court issue a cease and desist order. Then, if Rost subsequently violates that order, the court can cite him for contempt. In making its recommendation, the panel recited:\\n\\\"65. In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by die lawyer's misconduct, and the existence of aggravating or mitigating factors.\\n\\\"66. Duty Violated. The Respondent violated his duty to the profession to comply with rules and orders of the court.\\n\\\"67. Mental State. The Respondent knowingly violated his duty.\\n\\\"68. Injury. As a result of the Respondent's misconduct, die Respondent caused potential harm to Mr. Lloyd and die legal profession.\\n\\\"69. Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:\\n\\\"70. Prior Disciplinary Offenses. In 2001 and 2003, the Respondent was previously disciplined by informal admonition in a total of three cases. In DA8437, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.3 and KRPC 8.4. In DA8440, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.5. In DA8946, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 8.4.\\n\\\"71. Dishonest or Selfish Motive. The Respondent's misconduct \\u2014 practicing law after he was retired from the practice of law \\u2014 was motivated by selfishness.\\n\\\"72. A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by continuing to practice law after he had taken retired status.\\n\\\"73. Refusal to Acknowledge the Wrongful Nature of Conduct. The Respondent refused to admit any wrongdoing.\\n\\\"74. Vulnerability of Victim. Mr. Lloyd is an ill and feeble elderly man. He was vulnerable to the Respondent's misconduct.\\n\\\"75. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:\\n\\\"76. Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent was an active and productive member of the bar in Topeka, Kansas. He enjoyed the respect of his peers and clients and generally possesses a good character and reputation.\\n\\\"77. In addition to the above-cited factors, die Hearing Panel has thoroughly examined and considered the following Standards:\\n'Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duly owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.' Standard 7.2.\\n'Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duiy owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.' Standard 7.3.\\n'Reprimand is generally appropriate when a lawyer: . . . (b) has received an admonition for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.' Standard 8.3.\\\"\\nIn contrast, the Disciplinary Administrator recommends that Rost be disbarred, citing to two additional standards:\\n\\\"Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.\\\" Standard 7.1.\\n\\\"Disbarment is generally appropriate when a lawyer:\\n(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession.\\\" Standard 8.1(a).\\nThe Disciplinary Administrator supports the recommendation for a harsher sanction by arguing that Rost blatantly violated his agreement with the Disciplinary Administrator s office to retire from the practice of law; that he has failed to acknowledge any wrongdoing; and that he took advantage of Lloyd, who the panel described as an \\\"ill and feeble elderly man.\\\"\\nRost challenges the panel's recommendation, believing that no sanction is warranted. He argues that we have no jurisdiction over retired attorneys; that his unintentional letter to the district court and use of his attorney registration number do not warrant public censure; and that his actions with regard to Lloyd did not establish, by clear and convincing evidence, that he was practicing law.\\nThis court carefully considers the sanction recommendations of assigned hearing panels, as well as giving due regard to those of the Disciplinary Administrator. However, we are not constrained by those recommendations and may fashion a sanction that is entirely of our own choosing. Supreme Court Rule 212(f) (2008 Kan. Ct. R. Annot. 328-29) (sanction recommendations are \\\"advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended\\\").\\nWe discern that the hearing panel was striving to develop a sanction recommendation which would provide for some oversight to insure that Rost does not continue to practice law. However, we agree with the Disciplinary Administrator's assessment that a more severe sanction is warranted. When previously faced with disciplinary proceedings, Rost essentially agreed to an indefinite suspension from the practice of law, styled as a retirement. He was unwilling to abide by that agreement and gives no indication that he understands that being on retired status does not permit him to independently practice law, even on a limited basis. Imposing a sanction of disbarment will clarify Rost's status, both for him and for his clients. See Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350) (disbarred attorney must notify clients in writing of inability to provide further legal representation).\\nBased upon our consideration of the entire record, the arguments of counsel, and statements of the respondent, we conclude that the appropriate discipline in this case is disbarment from the practice of law in this state.\\nIt Is Therefore Ordered that the respondent, Thomas O. Rost, be and he is hereby disbarred from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(1) (2008 Kan. Ct. R. Annot. 266) for his violations of the Kansas Rules of Professional Conduct.\\nIt Is Further Ordered that the Clerk of the Appellate Courts strike the name of Thomas O. Rost from the roll of attorneys licensed to practice law in Kansas.\\nIt Is Further Ordered that the respondent shall forthwith comply with the provisions of Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350) and shall furnish proof of compliance to the Disciplinary Administrator.\\nIt Is Further Ordered that this opinion be published in the official Kansas Reports and that the respondent pay the costs of these proceedings.\\nLuckert, and Rosen, JJ., not participating.\\nElliott, and Caplinger, JJ., assigned.\\n\\\"x At the hearing on this matter, die Respondent testified that Mr. Lloyd's check dated October 18, 2005, but not deposited until April, 2006, was for legal fees incurred prior to his retirement from the practice of law on October 1, 2005.\\\"\\n\\\"2 The pleading appears to have been prepared and filed by Mr. Kjorlie. According to the Respondent, 'Tonya M. McConnell . . . prepared the accounting based upon Mr. Lloyd's records under the direction of Mr. Kjorlie.' According to statements made by Mr. Kjorlie to Mr. Hesse, during his investigation, Mr. Kjorlie did not prepare the accounting nor did he assist Mr. Lloyd in preparing or filing the accounting. Mr. Kjorlie's testimony regarding this matter at the Formal Hearing was less iban clear. While the Respondent may have drafted the pleading, he denied doing so. Clear and convincing evidence was not presented to establish who prepared die pleading.\\\"\\n\\\"3 Despite the assertions that Mr. Kjorlie assisted Mr. Lloyd during this time, it does not appear that Mr. Lloyd paid attorney fees to Mr. Kjorlie. The only fees paid by Mr. Lloyd during this time appear to have been paid to the Respondent.\\\"\"}"
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+"{\"id\": \"37664\", \"name\": \"State of Kansas, Appellee, v. Ronnie M. Grider, Appellant\", \"name_abbreviation\": \"State v. Grider\", \"decision_date\": \"1971-01-23\", \"docket_number\": \"No. 46,022\", \"first_page\": 537, \"last_page\": \"539\", \"citations\": \"206 Kan. 537\", \"volume\": \"206\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:47:44.936780+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Kansas, Appellee, v. Ronnie M. Grider, Appellant.\", \"head_matter\": \"No. 46,022\\nState of Kansas, Appellee, v. Ronnie M. Grider, Appellant.\\n(479 P. 2d 818)\\nOpinion filed January 23, 1971.\\nJames R. Schaefer, of Holmes, Darrah and Mellor, of Wichita, argued the cause and was on the brief for appellant.\\nReese C. Jones, deputy county attorney, argued the cause, and Kent Friz-ell, attorney general, and Keith Sanborn, county attorney, were with him on the brief for appellee.\", \"word_count\": \"937\", \"char_count\": \"5437\", \"text\": \"The opinion of the court was delivered by\\nFatzer, J.:\\nThis is an appeal'from a conviction and sentence for possession of marijuana. (K. S. A. 65-2501, 65-2502 and 65-2519a.)\\nIn August, 1969, information was received by the Wichita Police Department from an informant as to the location of a stash of marijuana. Investigation disclosed two brown paper sacks full of marijuana at the location described. The stash of marijuana was under observation from time to time for two days, and it was not approached. On the third day, August 15, 1969, two police officers went to the area to check the stash. Shortly after 9:00 p. m. they heard an automobile approaching, and concealed themselves in tall weeds to observe.\\nTwo young men came to the river bank, one of whom was the appellant. The appellant stated to his companion, \\\"[d]o you want to come with me to get the stuff?\\\" His companion replied, \\\"[n]o, you go I will wait.\\\"\\nThe appellant walked directly to' the marijuana and proceeded to fill a small plastic bag from one of the brown sacks. One of the officers who was concealed about ten feet away, approached the appellant and informed him he was a police officer. The appellant then tried to escape but was caught, wrestled to the ground, and the plastic bag was taken from his hand.\\nThe sole question presented is whether the appellant was denied a fan trial by reason of the district court's failure to permit his counsel on cross-examination to inquire as to what was communicated by the informer to police.\\nOn cross-examination appellant's counsel asked Detective Brown who received the telephone call from the informant, \\\"[n]ow, was the informant who advised you in this case the same one who advised you in the other cases, or was this someone new to you,\\\" and \\\"[d]id this person know Mr. Grider?\\\"\\nObjection was made, and the district court ruled the informant in the case was not material to the issue. Appellant's counsel explained he sought to discover what was communicated by the informant to the police and not the identity of the informant. The questions clearly asked who the informant was.\\nK. S. A. 60-436 protects the identity of an informant unless the judge finds that identity has already been disclosed, or disclosure is necessary to assure a fair determination of the issues. The statute is to encourage those who have knowledge of crime to come forward and disclose information to officers in the field of criminal investigation without fear of disclosure. Thus, under the statute and public policy, disclosure is not favored without just cause.\\nIt is a matter within the sound discretion of the district court as to whether the identity of an informant should be disclosed, and that determination will not be disturbed in the absence of an abuse of discretion. (K. S. A. 60-436; State v. Robinson, 203 Kan. 304, 454 P. 2d 527.)\\nIt is noted the informant's information did not furnish the probable cause in this case for an arrest, or a search. There was probable cause for an arrest independent of what the informant told the officer. The officers were directed to a certain spot on a river bank where there was contraband. Marijuana was found at the spot indicated. The informant's information was so far correct, but the officers did not arrest anyone on that basis. They waited. The probable cause for appellant's arrest was his committing a felony in the presence of police officers. It is really immaterial how the officers happened to be on the river bank. They were in a place where they had a right to be, and they observed a crime being committed, and they arrested the appellant \\u2014 the perpetrator. This case is quite different from situations where the informant's information provides all, or a great part, of the basis for the arrest, or a search. (Spinelli v. United States, 393 U. S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584.)\\nThe district court limited the police officers' testimony regarding the information given by the informant, to that which directed them to the spot on the river bank. It struck the statement concerning the connection between the marijuana on the river bank and the appellant, and admonished the jury as follows:\\n\\\"The Court: The objection is sustained. And there was a statement made by one of the witnesses as to what an informant might have said concerning the involvements of this defendant. That statement is to be disregarded by the jury. It was improperly brought into the case, and the jury may not consider it in any degree in determining guilt or innocence here. The answer to that question concerning what an informant said which may have implicated this defendant is hearsay and is stricken from the record.\\\"\\nThere was no error. Moreover, the statement of the witness stricken by the district court was elicited by appellant's counsel and it has been repeatedly held that a litigant may not by his own act invite error and take advantage of the district court's ruling on appeal. (State v. Cantrell, 201 Kan. 182, 187, 440 P. 2d 580.)\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"37700\", \"name\": \"William Russell Stewart, Appellant, v. State of Kansas, Appellee\", \"name_abbreviation\": \"Stewart v. State\", \"decision_date\": \"1970-11-07\", \"docket_number\": \"No. 45,870\", \"first_page\": 147, \"last_page\": \"151\", \"citations\": \"206 Kan. 147\", \"volume\": \"206\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:47:44.936780+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Russell Stewart, Appellant, v. State of Kansas, Appellee.\", \"head_matter\": \"No. 45,870\\nWilliam Russell Stewart, Appellant, v. State of Kansas, Appellee.\\n(476 P. 2d 652)\\nOpinion filed November 7, 1970.\\nThomas D. Herlocker, of Winfield, argued the cause and was on the brief for the appellant.\\nTom Pringle, Deputy County Attorney, argued the cause, and Kent Frizzell, Attorney General, and Mike Smith, County Attorney, were with him on the brief for the appellee.\", \"word_count\": \"1622\", \"char_count\": \"9808\", \"text\": \"The opinion of the court was delivered by\\nKaul, J.:\\nThis appeal is from an order of the trial court denying relief in a proceeding instituted pursuant to K. S. A. 60-1507.\\nOn September 25, 1964, petitioner, William Russell Stewart, entered a plea of guilty to a charge of grand larceny of an automobile. He was sentenced to the Kansas Industrial Reformatory at Hutchinson for a term of not less than five nor more than fifteen years. On his application petitioner was granted probation by the sentencing court.\\nUnder one of the terms of probation, petitioner was allowed to go to the State of Missouri where his probation would be supervised by a Missouri Probation Officer in accordance with the Uni form Act for Out-of-State Parolee Supervision. (K. S. A. 62-2701 to 62-2703 [repealed, L. 1970, Ch. 129, \\u00a7 22-4604], now K. S. A. 1970 Supp. 22-4101 to 22-4103.)\\nAfter an investigation, petitioner's case was received for supervision by the Missouri Board of Probation and Parole on November 5, 1964.\\nOn December 2, 1964, the Missouri Probation Officer, charged with the supervision of petitioner's probation, filed a report with the Missouri Board of Probation and Parole. The report recited a number of events in which petitioner was alleged to have been involved and which took place during the month of November 1964. In conclusion the report stated:\\n\\\"Subject has violated his probation by violation of Condition # 1. He has failed to avoid injurious and vicious habits of associating with undesirables, fighting, stealing, drinking intoxicating liquors and fleeing from an officer of the law.\\\"\\nThe Missouri probation officer recommended that petitioner's probation be revoked because of the particular violation set out in the report.\\nOn February 4, 1965, the probation officer's report was approved by the Missouri Board of Probation and Parole and forwarded to Kansas by the Missouri Compact Administrator.\\nThe county attorney prepared and filed a motion for a bench warrant with the report of the Missouri probation officer attached. A bench warrant was issued and petitioner was returned to Kansas.\\nCounsel was appointed to represent petitioner and after a hearing before the trial court petitioner's probation was revoked on April 26,1965.\\nPetitioner made no attempt to appeal from the order of revocation, but commenced a chain of proceedings under 60-1507, supra, which eventally led to this appeal.\\nOn August 20, 1965, petitioner filed his first motion pursuant to 60-1507. The record discloses a series of proceedings concerning petitioner's first motion and three subsequent motions filed by him, the circumstances surrounding these extended proceedings are immaterial to the issues presented in this appeal.\\nIt will suffice to say that on August 29, 1968, petitioner filed a fourth motion to vacate judgment and sentence pursuant to 60-1507, supra, which was overruled. Petitioner filed a notice of appeal on November 20, 1968. Present counsel was appointed for petitioner on November 21,1968.\\nOn February 17, 1969, petitioner filed a motion asking leave to withdraw his notice of appeal, to amend his motion and for a rehearing on this fourth and last motion to vacate judgment and sentence. Petitioner's motion was granted and a rehearing was had on June 16, 1969, at which time petitioner was represented by counsel. Petitioner's motion was overruled and the appeal which is now before this court was finally perfected.\\nPetitioner makes two contentions in his appeal. First, that he was denied a constitutional right to have counsel at his preliminary hearing and, second, that the state failed to establish violation of the terms of his probation.\\nWith respect to petitioner's first contention, this court has repeatedly held that under Kansas procedure an indigent accused does not have a constitutional right to counsel at his preliminary hearing, and failure to provide counsel at such time is not error in the absence of a showing of prejudice to the substantial rights of accused. (Ray v. State, 202 Kan. 144, 446 P. 2d 762; Wheeler v. State, 202 Kan. 134, 446 P. 2d 777; State v. McCarther, 196 Kan. 665, 414 P. 2d 59; Cooper v. State, 196 Kan. 421, 411 P. 2d 652.)\\nIn the instant case, the record discloses that when petitioner was before the magistrate his rights were fully explained to him but he did not request the appointment of counsel. There is no indication found in this record of prejudice to petitioner's rights resulting from absence of counsel before the magistrate. Moreover on arraignment, when represented by counsel, petitioner entered a voluntary plea of guilty to the information. He cannot now object to the lack of or sufficiency of a preliminary hearing. (State v. McCarther, supra; Portis v. State, 195 Kan. 313, 403 P. 2d 959.)\\nIn his brief on appeal petitioner cites the case of Arsenault v. Massachusetts, 393 U. S. 5, 21 L. Ed. 2d 5, 89 S. Ct. 35. In the Arsenault case defendant entered a plea of guilty at his preliminary examination. On arraignment defendant changed his plea to not guilty. Subsequently, evidence of his previous plea of guilty on preliminary examination was injected by the state in the jury trial. In the instant case, petitioner did not enter any plea, nor was he asked for a plea, he merely waived his preliminary hearing. Nothing relating to his preliminary hearing was used against petitioner at his arraignment and there was no jury trial in district court. Because of the clear factual distinction Arsenault is of no benefit to petitioner.\\nIn his second contention on appeal petitioner claims that he is entitled to a review of the revocation of his probation by way of a motion under K. S. A. 60-1507.\\nIn his attack on the order of revocation of probation, petitioner does not claim any infringement of his constitutional rights, nor does the record indicate any basis for such a claim. Petitioner merely asserts the state failed to establish a violation of probation.\\nPetitioner relies on State v. Nelson, 196 Kan. 592, 412 P. 2d 1018, wherein this court dealt with procedural standards, rules pertaining to the admissibility and sufficiency of evidence, and the exercise of judicial discretion in proceedings to revoke probation under K. S. A. 62-2244 [since repealed], now K. S. A. 1970 Supp. 22-3716. In his brief petitioner argues the state failed to produce sufficient competent evidence to establish a violation of probation in compliance with what he says is required by our opinion in the Nelson case.\\nPetitioner overlooks the fact that State v. Nelson, supra, was a direct appeal from a trial court's order of revocation. Here petitioner attempts to collaterally attack the order by way of a motion to vacate sentence under 60-1507.\\nThe scope of the remedy afforded by 60-1507 has been delineated by our Supreme Court Rule No. 121 (c) (203 Kan. xxxix, xl) and the many decisions of this court dealing with the statute and rule since 1964. See cases collected in Vols. 1-3 Hatcher's Kansas Digest [Rev. Ed. Perm. Supp.], \\u00a7 349K, subsection \\\"Questions that may he raised\\\"; 5 Vernons Kansas Statutes Annotated, Code of Civil Procedure, 1970 Pocket Parts, \\u00a7 60-1507, pp. 32-44; Gard, Kansas Code of Civil Procedure, 1970 Cumulative Supp., \\u00a7 60-1507, pp. 126-131. Perusal of the cases referred to discloses that this court has repeatedly held that a proceeding under K. S. A. 60-1507 is not to be substituted for a direct appeal.\\nJusticiable questions, which may be presented for determination under 60-1507, are set out in Ware v. State, 198 Kan. 523, 426 P. 2d 78, wherein we held:\\n\\\"Only questions arising under the Constitution of the United States, oi the Constitution or laws of the state of Kansas, going to the jurisdiction of the district court to impose a lawful and proper sentence upon the petitioner, or which otherwise subject the sentence to collateral attack, may be raised in a proceeding commenced under K. S. A. 60-1507.\\\" (Syl. f 1.)\\nThe procedure provided by 60-1507, as implemented by Rule No. 121, was held to afford an adequate and effective post-conviction remedy when measured by federal constitutional requirements by the United States Court of Appeals in Kinnell v. Crouse, 384 F. 2d 811, (10th Cir. 1967). The court observed that the Kansas postconviction remedy is nearly identical to the federal remedy provided by 28 U. S. C. A. \\u00a7 2255. Circuit Judge Hill speaking for the court said:\\n\\\"It is elementary that neither habeas corpus nor \\u00a7 2255 may be used as a substitute for direct appeals and may be used to collaterally attack a judgment of conviction only when the constitutional rights of the accused are in issue. The same is certainly true of the Kansas post conviction statute.\\\" (p. 813.)\\nAs previously noted, petitioner suggests no constitutional irregularities in the revocation proceedings; he merely seeks a review of the evidence. A proceeding to vacate sentence under 60-1507 is not intended to serve as a vehicle for the review of a collateral proceeding when proposed in the context presented here.\\nWe hold that in the absence of irregularities of constitutional propositions, a proceeding to revoke probation pursuant to 62-2244, supra, is not reviewable by a motion to vacate, set aside or correct a sentence under 60-1507.\\nFor the reasons stated we hold that the trial court did not err in denying the petitioner relief upon the grounds asserted in his motion.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"382406\", \"name\": \"The State of Kansas v. R. T. Webb\", \"name_abbreviation\": \"State v. Webb\", \"decision_date\": \"1898-05-19\", \"docket_number\": \"No. 490\", \"first_page\": 423, \"last_page\": \"428\", \"citations\": \"7 Kan. App. 423\", \"volume\": \"7\", \"reporter\": \"Reports of cases decided in the Courts of Appeals of the state of Kansas\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T16:59:34.370415+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Kansas v. R. T. Webb.\", \"head_matter\": \"The State of Kansas v. R. T. Webb.\\nNo. 490.\\n1. Prohibitory Liquor Law \\u2014 Sales\\u2014Election between Counis.\\u2019 Where an information contained a large number of counts, each of which charged in general language a violation of the prohibitory liquor law, and where the testimony showed that numerous sales had been made to the same party, and where the county attorney, who had verified the information \\u201cas true to the best of his knowledge and belief,\\u201d testified that he had notice and information concerning the sales so testified to by other witnesses, held, that an election to rely on the first sale of beer made to C. as to one count, and on a second sale of beer to O. in another count, was sufficient.\\n2. -Knowledge of Prosecuting Witness \\u2014 Presumption \\u2014 Instructions. Where, in such case, the court instructed the jury that the county attorney, as the prosecuting witness, in the absence of any evidence whatever as to his knowledge of the offenses charged, was presumed to possess such knowledge, but that such presumption might be overthrown by the testimony, and that no conviction could be had where the jury believed from the evidence that as to any of the alleged sales the county attorney had no notice or knowledge, and where the instructions as a whole clearly presented the law applicable to the facts in the case, held, that no error was committed by the statement concerning the presumption of knowledge on the part of the county attorney; and further held, that it was not material error to refuse an instruction to the effect that when the county attorney elected to rely upon the \\u201cfirst sale \\u201d made to a particular individual, and the jury had a reasonable doubt as to which of the several sales testified to was in fact the first sale, it was the duty of the jury to acquit the defendant as to such sale.\\n3. -Evidence of Many Sales \\u2014 Nuisance. Where the evidence showed many sales at various times of intoxicating liquors in the place described in the two nuisance counts of the information, it was not error to render judgment upon a verdict of guilty to each of said counts.\\n4. Criminal Code \\u2014 Security for Good Behavior. Section 242 of the criminal code, which authorizes the trial court to require a party who is convicted of any criminal offense to give security to keep the peace or be of good behavior for a term not exceeding two years, held, to be constitutional.\\nAppeal from Wilson county; L. Stillwell, judge.\\nOpinion filed May 19, 1898.\\nAffirmed.\\nJames M. Kennedy, county attorney, for appellee.\\n' 8. S. Kirkpatrick, for appellant.\", \"word_count\": \"1790\", \"char_count\": \"10291\", \"text\": \"The opinion of the court was delivered by\\nMilton, J. :\\nFrom a conviction upon eight counts of an information charging violations of the prohibitory law, R. T. Webb appeals. Six counts charged specific sales and two were for maintaining a nuisance. The court sentenced the defendant to pay a fine of $100 and to serve thirty days in the county jail on the verdict under each of the counts, and also ordered that he execute a bond in the sum of $1000, conditioned for his good behavior for the term of two years, and to stand committed to jail until such bond was given and approved. Before the trial, defendant's motion to quash the information, on the ground that it was so yague, indefinite and uncertain that the defendant was not thereby apprised of the nature of the accusation against him, was overruled. The counts alleging specific sales are practically alike, each averring an unlawful sale of intoxicating liquor in the year 1897, or within one year preceding the filing of the information, which was on June 19, 1897. The information contained thirteen counts, and was formed by the consolidation by agreement in open court of two informations, one of .which, with four counts, was filed on June 19, 1897, and the other, with nine counts, on August 13, 1897, each containing a nuisance count, in which the words \\\"did then and now does keep a place,\\\" etc., are used.\\nAppellant concedes that if the information charged a single violation of the law it might be sufficient under section 105 of the criminal code, but says that where a large number of counts of a similar nature, from which the specific facts constituting the several offenses are omitted, are joined in one information, time becomes essential and should be alleged writh some degree of precision. This question is settled by the decision in The State v. Brooks, 33 Kan. 708. The motion to quash was properly overruled.\\nThe second alleged error is based on the refusal of the court to require the county attorney to make his election as to the particular sales upon which he relied for conviction more specific and certain, he having already made a written election. -That election is shown by the following : 'For first count the state elects to rely on the first sale of beer to W. G. Clayton.\\\" . . . \\\" For ninth count, state relies on the second sale of beer made to W. G. Clayton,\\\" testified to by Clayton. The information was verified by the county attorney upon information and belief, and he testified that he had general notice and information as to the several sales upon which he elected to rely. A large number of witnesses had testified to various sales, and the election clearly appears to have been based upon the sales so testified to. The rule requiring an election on the part of the state is to be reasonably applied. We think the election in this case was sufficiently definite, under the authority of The State v. Crimmins, 31 Kan. 376, and The State v. Guettler, 34 id. 582.\\nComplaint is made of a certain declaration contained in instruction No. 18. The objection goes to the statement that, in the absence of any evidence as to knowledge on the part of the county attorney concerning the alleged sales, he was presumed to possess it. Counsel for appellant says that the effect of this language is to destroy the presumption of innocence with which the law shields an accused party ; and that the court, instead of employing the language criticised, should have declared that if there was a reasonable doubt as to such knowledge or notice on the part of the county attorney it would be the duty of the jury to acquit. Such an instruction was asked for and refused. We think the court's instructions as a whole correctly stated the law. In another instruction the court declared clearly the law as to a reasonable doubt, and we do not discover wherein the jury could have been misled. While the instruction asked for might well have been given, we do not feel warranted in holding that its refusal- was material error. In several cases the supreme court has used language similar to that employed in this instruction. In The State v. Lund, 51 Kan. 1, the court said: \\\"Where an information is verified by the oath of a private person, it will be presumed, in the absence of anything to the contrary, that he had actual knowledge of the facts stated therein.\\\" See also The State v. Brooks, supra.\\nAs we have said, an examination of all the instructions convinces us that they contained a clear and full statement of the law applicable to the facts in the case. We hold, therefore, that no substantial error was committed by the court in refusing to give those asked for by defendant. (The State v. Tatlow, 84 Kan. 80.)\\nIt is claimed that if the testimony established the nuisance charge at all it showed that it was a continuing nuisance, and consequently that it constituted one offense. We observe that the evidence showed many sales of intoxicating liquors, and at various dates, in the place described. We see no reason for holding that the convictions upon both the nuisance counts should not be sustained, especially in view of the facts above stated in regard to the consolidation of the two informations.\\nAnother question presented relates to the constitutionality of section 242, code of criminal procedure (Gen. Stat. 1897, ch. 102, \\u00a7251), under which the defendant was ordered to give a bond for his good behavior. Counsel strongly insists that a man can by this means be deprived of his liberty in case poverty renders it impossible to comply with the order of the court, and this although he may have already suffered the penalty imposed upon conviction of a misdemeanor, without even the pretense of a threat on his part to repeat the violation of the law. No authorities are cited in support of the claim that the section quoted is unconstitutional. While the supreme court has not directly declared the section to be constitutional, it has certainly sustained the law by approving a similar order in the case of The State v. Chandler, 31 Kan. 201, where a clause of the syllabus reads :\\n\\\" The court before which any person is convicted of .a criminal offense has the power, in addition to the sentence prescribed or authorized by law, to require such person to give security to be of good behavior for a term not exceeding two years, or to stand committed' until such security is given.\\\"\\nThat this law', by reason of its omission to fix the maximum amount of the bond, might be so employed as to work a great hardship in the supposed case counsel mentions may be true, but we are not here apprised of any reason for considering that phase of the question. As this law has been on the statute .books and in force for nearly thirty years, a court should uow ask for the presentation of very clear and convincing reasons for holding it unconstitutional, before being authorized so to hold. This case was submitted some months ago, and from an examination of the record and the decisions of the supreme court of this state the conclusion was promptty reached that none of the-assignments of error could be sustained. However, as the principal assignment, which challenged the constitutionality of section 242 of the criminal code, under which security to keep the peace and be of good behavior for the term of two years was required by the trial court, was the single, ground of error assigned in several cases from Bourbon county, which were to be submitted at our next sitting in the eastern division, we deemed it advisable to writhhold our decision in the present case until those cases should have been argued and submitted. We think the verdict is sustained by the evidence. The judgment of the trial court is affirmed.\"}"
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+"{\"id\": \"382562\", \"name\": \"Wm. D. McFarland v. The State Bank of Chase, Revived against H. W. Hedges et al., Trustees\", \"name_abbreviation\": \"McFarland v. State Bank\", \"decision_date\": \"1898-02-10\", \"docket_number\": \"No. 198\", \"first_page\": 722, \"last_page\": \"726\", \"citations\": \"7 Kan. App. 722\", \"volume\": \"7\", \"reporter\": \"Reports of cases decided in the Courts of Appeals of the state of Kansas\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T16:59:34.370415+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wm. D. McFarland v. The State Bank of Chase, Revived against H. W. Hedges et al., Trustees.\", \"head_matter\": \"Wm. D. McFarland v. The State Bank of Chase, Revived against H. W. Hedges et al., Trustees.\\nNo. 198.\\n1. Promissory Note \\u2014 Renewal of Usurious Paper. Where a non-negotiable instrument has come into the hands of an innocent purchaser, and the maker thereafter voluntarily gives him a negotiable promissory note as a substitute for the first, which was usurious, the original usury cannot be pleaded against the new obligation.\\n2. \\u25a0 \\u2014 \\u2014\\u2014 Indorsement of Bona Fide Holder \\u2014 Knowledge of Indorsee. The purchaser 'of a negotiable instrument from a bona fide holder for value acquires as good a title as such holder had, and may recover thereon, although he may have had notice of infirmities in the note which he took.\\nError from Rice district court; Ansel R. Clark, judge.\\nOpinion filed February 10, 1898.\\nAffirmed.\\nSam\\u2019l Jones, for plaintiff in error.\\nO. F. Foley, for defendants in error.\", \"word_count\": \"1183\", \"char_count\": \"6608\", \"text\": \"The opinion of the court was delivered by\\nSchoonover, J. :\\nThis was an action by defendant in error against plaintiff in error upon a negotiable promissory note. The cause was submitted to the court, without a jury, upon an agreed statement of facts, and a judgment rendered against plaintiff in error for $412.21, and he brings the case to this count for review. The note in suit, as shown by the agreed facts, is a final renewal of previous renewals of numerous notes given from time to time during a period of several years. The renewal note immediately preceding the one in suit was given to the Bank of Chase in renewal of and embracing all the notes preceding it, and was for the sum of $1576.40.\\nThe agreed statement of facts sets forth that the note for $1576.40, of date June 29, 18.91, was after its maturity transferred for a valuable consideration to J. M. Sallee, as shown by the indorsement on the note. On June 6, 1892, this note for $1576.40 was renewed by note No. 299 for $1752.80 [the note in suit]. Such renewal was taken and obtained by H. L. Marshall as agent for J. M. Sallee. Before the maturity of the last note it was indorsed to the present owner, the State Bank of Chase, by J. M. Sallee, from whom it was purchased for the full face value and interest at the time of the purchase. H. L. Marshall, acting for the State Bank of Chase, made the purchase from J. M. Sallee. The State Bank of Chase was and is a corporation organized October 1, 1891, .and H. L. Marshall was at all times since its organization and still is the cashier of said bank.\\nAs cashier of the State Bank of Chase, H. L. Marshall had actual knowledge at the time he purchased the note from J. M. Sallee for the bank of whatever usurious interest .there was in the note, he having transacted the business out of which the note originated. He was also a member of the board of directors of the bank when he purchased the note. J. M. Sallee had no knowledge or notice at any time of any infirmity in any of said notes, and had no knowledge or notice that any usurious interest was embodied in any of the notes in question.\\nOther facts contained in the agreed statement warrant us in saying that if the law is with plaintiff in error, tender and payments sufficient to more than discharge the note sued on were duly made before the action was commenced ; and if the law is with the defendant in error, the judgment of the trial court is without objection.\\nThe defense pleaded usury, and as shown, this element entered, more or less largely, into all of the notes and renewals, and the extent of the usury and penalty, plaintiff in error insisted below, and insists here, should be credited as payment upon the original sum or sums and interest at the lawful rate. This proposition defendant in error controverts, except as to the usury directly incorporated into the note in suit, which latter only and statutory penalty were allowed by the'trial court. The only question, therefore, presented for our consideration is, Bid the trial court err in refusing to allow credit for and on account of the usury embraced in the former notes of which the note sued on is a renewal? This question, after full and careful consideration and rather extensive research, we are compelled to answer in the negative.\\nWe agree with the contention of plaintiff in error that J. M. Sallee was not a bona fide innocent purchaser or holder of the $1576.40 note. It was past due when indorsed to him, and therefore dishonored and non-negotiable, and open to all defenses which, could have been made against the original payee. We think, also, the claim that defendant in error is not an innocent holder without notice of the infirmity in the notes is fully supported by the facts. T^he knowledge of H. L. Marshall, as cashier of the bank, was the bank's knowledge. To insist, however, that J. M. Sallee at any time or in any sense knew of the usury, is to flatly contradict the agreed statement of facts.\\n\\\" J. M. Sallee had no knowledge or notice at any time of any infirmity in any of said notes, and had no knowledge or notice that any usurious interest was embodied in any of the notes in question.\\\" Having entered into this agreement, counsel cannot now insist that the contrary is true, either in fact or as a legal proposition. J. M. Sallee was the indorsee without notice of usury or other infirmity of the $1576.40 usurious note, -which was, however, non-negotiable, and therefore subject to all defenses as though held by the original payee. McFarland voluntarily took up this note and gave in its stead the note in suit, which is negotiable under the law merchant. He is thereby estopped from ever after making the defense of usury beyond that which was directly included in the note in suit; and this was allowed and credited by the trial court. (27 Am. & Eng. Encyc. of Law, 985, 986, and numerous cases there cited.)\\nA person may be estopped from setting up usury as a defense (2 Herm. Estop., \\u00a7911, 1012; 1 Daniel, Neg. Inst., \\u00a7 859; Tyler, Usury, 418, 419), and the principle applies here. Sallee being in effect a bona fide holder of the note, except as to the usury credited by the trial court, it makes no difference that defendant in error knew of the usury, or whether the transfer to it was by indorsement or merely by delivery. It took the title that Sallee held. (Bodley v. National Bank, 38 Kan. 59.) Of course, if the indorsement to Sallee, the renewal of the note by him and the sale to defendant in error were a mere device to avoid the usury, the plaintiff in error would be- entitled to the relief he asks, but the agreed statement of facts does not warrant such a finding.\\nThe judgment of the district court is affirmed.\"}"
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+"{\"id\": \"384591\", \"name\": \"Jo K. Lively, Claimant, v. MBPXL Corporation, Appellee, and Kansas Workmen's Compensation Fund, Appellant\", \"name_abbreviation\": \"Lively v. MBPXL Corp.\", \"decision_date\": \"1982-01-14\", \"docket_number\": \"No. 53,159\", \"first_page\": 204, \"last_page\": \"207\", \"citations\": \"7 Kan. App. 2d 204\", \"volume\": \"7\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T20:44:40.177318+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Parks, P.J., Abbott and Rees, JJ.\", \"parties\": \"Jo K. Lively, Claimant, v. MBPXL Corporation, Appellee, and Kansas Workmen\\u2019s Compensation Fund, Appellant.\", \"head_matter\": \"(638 P.2d 999)\\nNo. 53,159\\nJo K. Lively, Claimant, v. MBPXL Corporation, Appellee, and Kansas Workmen\\u2019s Compensation Fund, Appellant.\\nOpinion filed January 14, 1982.\\nStuart R. Collier and John C. Nodgaard, of Arn, Mullins, Unruh, Kuhn & Wilson, of Wichita, for appellant.\\nFrederick L. Haag, of Foulston, Siefkin, Powers & Eberhardt, of Wichita, for appellee.\\nBefore Parks, P.J., Abbott and Rees, JJ.\", \"word_count\": \"1449\", \"char_count\": \"9147\", \"text\": \"Abbott, J.:\\nThis is an appeal in a workers' compensation case. At issue is the validity of a temporary order, entered after a preliminary hearing held in accordance with K.S.A. 1980 Supp. 44-534a, requiring the Kansas Workmen's Compensation Fund to pay temporary total disability benefits and medical expenses to the claimant. The dispute is between the employer, MBPXL Corporation (MBPXL), and the Kansas Workmen's Compensation Fund (Fund). The injured worker is not a party.\\nProcedurally, the case arose in the following manner: The claimant requested a preliminary hearing pursuant to K.S.A. 1980 Supp. 44-534a. The administrative law judge ordered MBPXL to pay temporary total disability benefits and medical expenses. The subsequent deposition of Dr. Thomas W. Kneidel led MBPXL to believe it had no obligation to the claimant under the Workmen's Compensation Act, and that either the claimant was entitled to receive compensation from the Fund or he was not entitled to receive compensation from anyone. MBPXL thereupon filed a motion requesting that benefits to the claimant be terminated. That motion was denied by the administrative law judge, but responsibility for the payments was transferred to the Fund.\\nThe Fund requested a director's review; the Workers' Compensation Director reversed the administrative law judge and ordered MBPXL to pay the benefits. The director reasoned:\\n\\\"Although Director's Rule 51-15-2 provides that a preliminary award may be entered against the Workmen's Compensation Fund, that rule does not appear to contemplate the type of case presently before the Director. The rule apparently contemplates cases in which there is no employer that can be found and brought before the Administrative Law Judge or an employer who does not have the present ability to pay compensation. It could possibly apply to a case in which it appears without doubt that the disability is clearly attributable to a pre-existing condition. This would be an exceptional case. The respondent may be entitled to some relief from the Workmen's Compensation Fund, however, in order to arrive at that conclusion, it is generally necessary to present extensive evidence on medical issues in the case. Preliminary awards do not contemplate a complete trial of an issue such as the liability of the Workmen's Compensation Fund. The statute providing for preliminary awards (K.S.A. 44-534a) provides that the only two issues to be heard on the preliminary hearing are whether the claimant is entitled to temporary total disability and whether he is entitled to be provided medical treatment at the employer's expense. The law does not specifically state that the Workmen's Compensation Fund liability is an issue for trial at a preliminary hearing. The Director's Rule allowing an award against the Workmen's Compensation Fund following a preliminary hearing should generally come into play when it is necessary because of no solvent employer or in some unusual instance if it is obvious that the Fund is responsible.\\n\\\"The Director feels that it is questionable to say that the award against the Fund would exceed the authority of the Administrative Law Judge, however, the Director feels that it is better practice not to order payment by the Fund except as set out above.\\\"\\nMBPXL appealed to the Sedgwick County District Court from the director's award. The trial judge reversed the director and reinstated the award of the administrative law judge. He held that preliminary orders are not appealable or reviewable by the Workers' Compensation Director or a district court except in instances where the administrative law judge did not have jurisdiction to enter the preliminary order. This appeal by the Fund followed.\\nOur Supreme Court has stated that \\\"[t]he Workmen's Compensation Act is complete and exclusive within itself in establishing procedures covering every phase of the right to compensation and of the procedure for obtaining and enforcing it, including procedures which pertain to appeals . . . .\\\" Kissick v. Salina Manufacturing Co., Inc., 204 Kan. 849, Syl. \\u00b6 3, 466 P.2d 344 (1970). At issue in this case is K.S.A. 1980 Supp. 44-534a. Thus, we must look to the act itself for guidance.\\nK.S.A. 1980 Supp. 44-534a provides in pertinent part that:\\n\\\"(a) . Upon a preliminary finding that the injury to the employee is compensable and in accordance with the facts presented at such preliminary hearing, the director or administrative law judge may make a preliminary award of medical and temporary total disability compensation to be in effect pending the conclusion of a full hearing on the claim. . . . No such preliminary findings or preliminary awards shall be appealable by any party to the proceedings, and the same shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of the facts.\\\" (Emphasis supplied.)\\nThe director, citing as authority the above statute and his authority to adopt and promulgate such rules and regulations as he shall deem necessary for the purposes of administering and enforcing the provisions of the Workmen's Compensation Act (K.S.A. 1980 Supp. 44-573), adopted two regulations. The Fund argues that those regulations, K.A.R. 51-15-2 and 1980 Supp. 51-3-5a, go beyond the director's rule-making authority, that they are contrary to statutory law and are in conflict with other rules made by the director. The pertinent parts of the challenged rules are: \\\"The examiner may award compensation against the workmen's compensation fund following a preliminary hearing if the fund was properly impleaded and given the statutory notice of the hearing.\\\" K.A.R. 51-15-2. \\\"Where an examiner has entered a preliminary award, no director's review pursuant to K.S.A. 44-551, shall be entertained except where it is believed the examiner did not have jurisdiction to enter the award.\\\" K.A.R. 1980 Supp. 51-3-5a.\\nThe Fund argues that K.A.R. 1980 Supp. 51-3-5a is in direct conflict with K.S.A. 1980 Supp. 44-551 and its counterpart K.A.R. 51-18-2. That statute and the director's rule provide that all acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge are subject to the director's review and approval upon written request of any interested party. The Fund contends that if the legislature had intended for a preliminary hearing to be nonreviewable by the director, the legislature would have amended K.S.A. 1980 Supp. 44-551. The Fund also contends the prohibition against appeals of a preliminary award in K.S.A. 1980 Supp. 44-534a applies to appeals to the district court and was not intended by the legislature to prevent reviews by the director. MBPXL counters that the director has authority to adopt and promulgate rules for the purpose of administering and enforcing the Workmen's Compensation Act; that the Kansas Supreme Court has previously held that the director may \\\"fill the gap\\\" with a rule (Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P.2d 1274 [1973]); and that the catch-all phrase in K.S.A. 1980 Supp. 44-566a(e)(4), which states that the Workmen's Compensation Fund shall be liable for any other payments or disbursements provided by law, authorizes the award.\\nUnderlying this dispute is the fact the legislature has provided that if a preliminary award has been paid by the employer or the employer's insurance carrier, and the award is subsequently reduced or disallowed upon a full hearing, the Fund will reimburse the employer and employer's insurance carrier pursuant to K.S.A. 1980 Supp. 44-534a(b). The legislature did not provide that the Fund would be reimbursed by the employer and employer's insurance carrier if the Fund paid a preliminary award that is subsequently determined to be the obligation of the employer and employer's insurance carrier.\\nThe Fund also argues there is no statutory authority for that part of K.A.R. 51-15-2 that authorizes the administrative law judge to award compensation against the Fund following a preliminary hearing. Legislative intent is not precise in the areas complained of. Legislative intent is crystal clear, however, that no appeal can be taken to the district court or to this court from a temporary award arising out of a preliminary hearing (K.S.A. 1980 Supp. 44-534a). Thus, neither this court nor the district court has jurisdiction to decide the issues. As we view the problem the Fund was confronted with, the only remedy available would have been a mandamus action against the director.\\nThe legislature, if it desires to do so, will have an opportunity to clarify its intent in the current session.\\nReversed and remanded to the district court with directions to dismiss the appeal for lack of jurisdiction.\"}"
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+"{\"id\": \"384759\", \"name\": \"Hays House, Inc., a Corporation, Helen E. Judd and Charles L. Judd, Individually, Appellants, v. Craig Eugene Powell, Appellee\", \"name_abbreviation\": \"Hays House, Inc. v. Powell\", \"decision_date\": \"1981-12-10\", \"docket_number\": \"No. 52,845\", \"first_page\": 53, \"last_page\": \"59\", \"citations\": \"7 Kan. App. 2d 53\", \"volume\": \"7\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T20:44:40.177318+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Justice Holmes, presiding, Meyer, J. and Harry G. Miller, District Judge Retired, assigned.\", \"parties\": \"Hays House, Inc., a Corporation, Helen E. Judd and Charles L. Judd, Individually, Appellants, v. Craig Eugene Powell, Appellee.\", \"head_matter\": \"(637 P.2d 486)\\nNo. 52,845\\nHays House, Inc., a Corporation, Helen E. Judd and Charles L. Judd, Individually, Appellants, v. Craig Eugene Powell, Appellee.\\nOpinion filed December 10, 1981.\\nHarold L. Haun, of Haun and Bryant, of Council Grove, for appellants.\\nDavid H. Heilman, of Council Grove, for appellee.\\nBefore Justice Holmes, presiding, Meyer, J. and Harry G. Miller, District Judge Retired, assigned.\", \"word_count\": \"2620\", \"char_count\": \"15373\", \"text\": \"Holmes, J.:\\nHays House, Inc., a corporation, arid Helen E. Judd and Charles L. Judd, both individually, plaintiffs below, appeal from a jury verdict and the judgment entered thereon in favor of Craig Eugene Powell, defendant below, on his counterclaim. The original action filed by the plaintiffs was based upon an alleged breach of a contract entered into by plaintiffs with the defendant. Defendant's counterclaim asserted plaintiffs had breached the contract and also sought actual and punitive damages for conversion of his inventory and for what was alleged to be the wrongful obtaining of a restraining order by the plaintiffs. The rather complicated facts need to be set forth at some length.\\nHays House, Inc., is a Kansas corporation owned by Charles L. Judd and his wife, Helen E. Judd. For several years, the Judds and Hays House, Inc. operated a restaurant and private club in Council Grove known as the Hays House and Hays Tavern. The Judds desired to slow down their activities and sought to find a suitable person to take over the restaurant and club. Craig Eugene Powell, a resident of Texas, with training and experience in restaurant operations, was familiar with the Hays House and Hays Tavern and was put in contact with the Judds. The parties reached an agreement and entered into a written \\\"Contract For Management\\\" effective March 1, 1979. Powell entered into possession of the business on that date and continued to operate it until August 2, 1979, when he was ousted from the premises pursuant to a restraining order issued by the district magistrate judge in Morris County. The contract granted Powell possession of the premises on a year-to-year basis, together with broad discretion in the operations of the business in return for certain monthly payments to be made by Powell to the plaintiffs. In July, 1979, the Judds became dissatisfied with Powell's operation of what had long been their business and sought to terminate the agreement with Powell. The Judds asserted that Powell was violating the agreement and indicated they were going to personally resume the management and operation of the restaurant and club. Powell was not willing to terminate the agreement unless the Judds would pay him $5,000.00. The Judds, being of the opinion that Powell owed them money rather than vice versa, filed suit on August 2, 1979, seeking, inter alia, termination of the contract and damages due to the alleged breaches by Powell. At the same time the district magistrate judge, at the request of plaintiffs, issued a temporary restraining order which provided in part:\\n\\\"IT IS THEREFORE ORDERED that the defendant, Craig Eugene Powell, be and hereby is ordered to refrain from being, remaining or entering upon the premises of the Hays House Restaurant and Hays Tavern in Council Grove, Kansas . . . .\\\"\\nThe restraining order was served upon Powell along with a copy of the petition late in the afternoon of August 2,1979. At that time a meeting was held at the Hays House between the Judds and their attorney on the one hand, and Powell and his attorney on the other. Powell's counsel voiced the opinion that the restraining order ousting Powell from the premises was probably illegal and asserted the Judds could be held liable for actual and punitive damages if they proceeded with their attempt to exclude Powell from the premises. The Judds were not intimidated and Powell was required to leave the restaurant and club. Three or four days later Powell left Council Grove and took no further action to set the restraining order aside or recover possession of the business. On August 14, 1979, Powell filed an answer in which he asserted that he was the lessee of the premises; that the agreement between the parties was a real estate lease; that he had not breached the agreement; and that the plaintiffs were guilty of breach of contract, had converted his inventory, and had wrongfully obtained the restraining order. In his counterclaim he sought actual and punitive damages. The cause of action based upon the restraining order was ultimately submitted to the jury on the theory that it was a cause of action for malicious prosecution. After lengthy pretrial proceedings, the matter came to trial before a jury and it awarded the defendant actual damages of $24,552.37, and punitive damages of $20,000.00 for a total of $44,552.37. The trial judge, sua sponte, reduced the award to $39,552.37 after determining that the punitive damages, which included $15,000.00 for obtaining an illegal restraining order, exceeded the amount included in the pretrial order by $5,000.00. The plaintiffs have appealed from the judgment entered by the court and defendant has cross-appealed from the $5,000.00 reduction of the jury award made by the trial court and from a trial court order denying defendant an allowance of attorney fees. The defendant also lodges a jurisdictional attack upon the motion for new trial and the appeal filed by plaintiffs. Additional facts will be developed as they become relevant to the opinion.\\nAt the outset we will address the jurisdictional issue raised by appellee. Appellee asserts the trial court committed error in failing to strike the appellants' motion for a new trial and as a consequence argues that this court has no jurisdiction to hear the appeal. On May 1, 1980, the jury returned its verdict; on May 6, 1980, the motion for new trial was filed; on May 27, 1980, the court granted judgment and on July 9, 1980, the judgment was docketed. It was not until October 28, 1980, that the motion for a new trial was overruled. It is appellee's contention that the premature filing of the motion for a new trial was ineffective and consequently no valid new trial motion was ever filed. We do not agree. K.S.A. 60-259(b) states \\\"A motion for a new trial shall be served not later than 10 days after the entry of judgment.\\\" Appellee relies upon several Supreme Court cases which hold that a motion for a new trial filed out of time is a nullity. See City of Leavenworth v. Pennington, 146 Kan. 459, 72 P.2d 78 (1937); Oliver Farm Equipment Co. v. Foster, 134 Kan. 654, 8 P.2d 364 (1932). In the Kansas cases relied upon by the appellee the motion was filed too late.\\nWe are faced with the question of whether a motion for a new trial filed prematurely is a nullity. In Railway Co. v. Davis, 70 Kan. 578, 79 Pac. 130 (1905), the motion for a new trial was filed simultaneously with the return of the jury verdict. Our Supreme Court said:\\n\\\"Granting that a motion for a n\\u00e9w trial filed while the jury [is] still out is not entitled to consideration, no occasion for the application of the principle is here shown. The return of the findings and the filing of the motion were practically simultaneous, and, especially in view of the fact that the court heard and decided the motion upon its merits instead of striking it from the files or refusing to consider it, it will be treated as having been filed at a proper time.\\\" p. 581.\\nA similar situation exists in this case. The motion was filed after the jury verdict but before the entry of judgment on that verdict and Subsequently the trial court heard the motion on its merits. In an analogous situation, Rule 2.03 (228 Kan. xxxix) provides:\\n\\\"A notice of appeal filed subsequent to an announcement by the judge of the district court on a judgment to be entered, but prior to the actual entry of judgment as provided in Sec. 60-258, shall be effective as notice of appeal under Sec. 60-2103, if it identifies the judgment or part thereof from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal. Such advance filing shall have the same effect for purposes of the appeal as if the notice of appeal had been filed simultaneously with the actual entry of judgment, provided it complies with Sec. 60-2103(5).\\\"\\nWe conclude that a motion for a new trial filed subsequent to the rendering of a jury verdict but prior to the actual entry of judgment thereon is timely filed. The trial court was not in error in refusing to strike plaintiffs' motion for a new trial and hence, this court has jurisdiction to hear the appeal.\\nWe now turn to the substantive issues involved in the appeal and cross-appeal. Appellants list some twelve issues wherein they allege the trial court committed reversible error. In their motion for a new trial, thirty-three grounds of error were enumerated. It is to be noted, however, that the crux of this entire case hinges upon the issues surrounding the issuance of the initial restraining order and the manner in which it was handled by the trial court. At the close of plaintiffs' case the court found that the previously quoted portion of the restraining order was invalid and had been wrongfully obtained by the plaintiffs. The defendant was then allowed to proceed on the theory that the obtaining of the restraining order constituted malicious prosecution. At the completion of the trial the court determined that all issues growing out of the contract between the parties and the events subsequent to the execution of the contract would be submitted to the jury. As a result the court, after having found that a portion of the restraining order was invalid, so instructed the jury and then instructed them on defendant's theory of malicious prosecution. This was clearly error which, in our opinion, requires that this case be remanded for a new trial on all issues.\\nAmong the instructions given by the court were:\\n\\\"Instruction No. 17\\n\\\"To maintain an action for improperly obtaining the order ordering defendant to leave the premises (malicious prosecution) the defendant must prove that the plaintiffs instituted the proceeding of which complaint is made and that the plaintiffs in so doing acted without probable cause and with malice.\\n\\\"Instruction No. 18\\n\\\"In this case the Court has ruled as a matter of law that part of the order dated August 2, 1979 and which was marked as defendants exhibit No. 18 was an order improperly procured by the plaintiffs in so far as it required the defendant to leave the premises and that defendant could not be required to leave by such order.\\\"\\nIn the recent case of Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980), the Supreme Court discussed at length the elements and basic principles of law to be applied in an action for malicious prosecution of a civil case. The court stated:\\n\\\"(2) To maintain an action for malicious prosecution of a civil action the plaintiff must prove the following elements:\\n(a) That the defendant initiated, continued, or procured civil procedures against the plaintiff.\\n(b) That the defendant in so doing acted without probable cause.\\n(c) That the defendant acted with malice, that is he acted primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.\\n(d) That the proceeding terminated in favor of the plaintiff.\\n(e) That the plaintiff sustained damages. See Restatement (Second) of Torts \\u00a7 674 (1976); Thompson v. General Finance Co., Inc., 205 Kan. 76, 468 P.2d 269 (1970); Investment Co. v. Burdick, 67 Kan. at 337; Malone v. Murphy, 2 Kan. 250 (1864).\\n\\\"(11) As noted above, one of the elements of an action for wrongful use of civil proceedings is that the prior civil proceeding must have terminated in favor of the person against whom the prior civil action was brought. The action cannot be brought if the original action is still pending and undetermined. Harper v. Cox, 113 Kan. 357, 214 Pac. 775 (1923).\\\" pp. 276, 280.\\nIn H & H Farms, Inc. v. Hazlett, 6 Kan. App. 2d 263, 627 P.2d 1161 (1981), we had occasion to consider whether a claim for malicious prosecution could be the proper subject of a counterclaim and stated therein:\\n\\\"Kansas law is well settled that one of the crucial elements of an action for wrongful use of civil proceedings is that the prior civil proceeding must have terminated in favor of the person against whom the prior civil action was brought, and that the action cannot be brought if the original action is still pending and undetermined. See Nelson v. Miller, 227 Kan. at 280; Harper v. Cox, 113 Kan. 357, 214 Pac. 775 (1923). Although Kansas courts have not ruled on the specific question of whether a malicious prosecution claim can be brought in a counterclaim, other courts have had opportunity to address the issue. Prosser on Torts \\u00a7 120, n.32 (4th ed. 1977) states the general rule that a plaintiff must prove the termination of former proceedings in his favor and that this requirement ordinarily makes the counterclaim for malicious prosecution in the original civil action premature. See American Salvage and Jobbing Co., Inc. v. Salomon, 295 So. 2d 710 (Fla. Dist. Ct. App. 1974); Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970); Peisner v. Detroit Free Press, 68 Mich. App. 360, 242 N.W.2d 775 (1976). Furthermore, a plaintiff's cause of action for malicious prosecution does not accrue until the time for appeal has passed on the original action. See Rich v. Siegel, 7 Cal. App. 3d 465, 86 Cal. Rptr. 665 (1970).\\n\\\". . . We hold that a claim for malicious prosecution founded on a civil action is not the proper subject of a counterclaim since it requires proof of the termination of the former proceeding in favor of the defendant.\\\" pp. 269, 271.\\nIn the instant case the question of the propriety of plaintiffs securing the restraining order and the counterclaim based upon malicious prosecution so permeated all of the proceedings that a new trial upon all the issues is required. K.S.A. 1980 Supp. 60-2101(a).\\nAs it is our determination that this case must be remanded for a new trial we point out, as the trial court did, that this is a case which should have been and should now be settled. Many of the alleged contract breaches asserted by plaintiffs are nothing more than petty gripes about how the defendant was managing the business which was placed in his hands for that purpose. On the other hand, it appears obvious from the exhibits that defendant was losing money in his operation of the business. When served with the restraining order it would appear that he saw an opportunity to get out of what was developing into a losing proposition. If defendant was of the opinion that he could profitably continue the operation of the business, he could have taken steps to seek an immediate dissolution of the restraining order and thereby mitigate any damages he might have sustained. No such action was taken. As the management contract has long ago expired by its own terms, it is presumed that the plaintiffs have made other arrangements for the continuance of the business.\\nIn view of our conclusions reached in this matter, it is not necessary that we address other issues raised by the parties.\\nThe judgment is reversed and the case is remanded to the district court for a new trial on all issues except that of malicious prosecution.\"}"
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+"{\"id\": \"400418\", \"name\": \"In the Matter of the Application of Southwestern Bell Telephone Company\", \"name_abbreviation\": \"In re Southwestern Bell Telephone Co.\", \"decision_date\": \"1984-06-18\", \"docket_number\": \"No. 56,717\", \"first_page\": 525, \"last_page\": \"540\", \"citations\": \"9 Kan. App. 2d 525\", \"volume\": \"9\", \"reporter\": \"Kansas Court of Appeals Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:08:54.618374+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Abbott, P.J., Rees and Briscoe, JJ.\", \"parties\": \"In the Matter of the Application of Southwestern Bell Telephone Company.\", \"head_matter\": \"(685 P.2d 304)\\nNo. 56,717\\nIn the Matter of the Application of Southwestern Bell Telephone Company.\\nPetition for review denied October 2, 1984.\\nOpinion filed June 18, 1984.\\nGeorge E. Erickson, Jr., of Topeka, and Thomas H. W. Sawyer, general attorney, for the applicant AT&T Information Systems, Inc.\\nLawrence A. Dimmitt and Michael C. Cavell, of Topeka, for the respondent Southwestern Bell Telephone Company.\\nEva Powers, assistant general counsel, and Brian J. Moline, general counsel, for the respondent Kansas Corporation Commission.\\nBefore Abbott, P.J., Rees and Briscoe, JJ.\", \"word_count\": \"5931\", \"char_count\": \"36016\", \"text\": \"Briscoe, J.:\\nSouthwestern Bell (SWB) filed a tariff application with the Kansas Corporation Commission (KCC) on October 27, 1983. The proposed tariff would enable SWB to recover its capital investment in embedded complex inside wire. American Telephone and Telegraph Information Systems (ATT-IS) intervened in the tariff proceeding and now seeks review of the KCC order approving the tariff.\\nYears of negotiations and litigation between the United States on one side and Western Electric Company, Inc., and American Telephone and Telegraph Company (AT&T) on the other, led to district court approval of a consent decree in 1982 which required AT&T to divest from itself the 22 Bell Operating Companies (BOC). See United States v. American Tel. and Tel. Co., 552 F. Supp. 131, 135-140 (D.D.C. 1982), aff'd sub nom, Maryland v. United States, 460 U.S. 1001, 75 L.Ed.2d 472, 103 S.Ct. 1240 (1983). For purposes of this case, it is only necessary to understand that two lawsuits were involved. The first, filed in the United States District Court for the District of New Jersey in 1949, resulted in a 1956 consent decree which did not include divestiture or other structural changes. A second antitrust action was filed in the United States District Court for the District of Columbia in 1974, and, in 1982, a consent decree was proposed. This consent decree is referred to as the Modification of Final Judgment (MFJ), which references the 1956 consent decree, although the two decrees have little in common. The New Jersey case was then consolidated with the action in the District of Columbia for court approval of the consent decree.\\nIn United States v. American Tel. and Tel. Co., 552 F. Supp. 131, the parties were ordered to submit to the court a modified decree and to submit to the Department of Justice a plan of reorganization (POR). 552 F. Supp. at 226. Subsequently, in United States v. Western Elec. Co., Inc., 569 F. Supp. 1057 (D.D.C. 1983), summarily aff'd 52 U.S.L.W. 3450 (U.S. December 13, 1983), the court reviewed the POR previously approved by the Department of Justice (see also United States v. Western Elec. Co., Inc., 569 F. Supp. 990 [D.D.C. 1983]), and after limited modification the court also approved the POR. Within the POR was provision for the BOC's to retain inside wiring. On subsequent motions for reconsideration and clarification, the court specifically addressed the inside wiring issue.\\n\\\"Several intervenors ask the Court to reconsider its approval of the assignment of the so-called Account 232 to the Operating Companies and to assign the Account instead to AT&T. That request will likewise be denied. In-place wiring, which is a principal item in Account 232, is as much a 'bottle-neck' as are the subscriber access lines. To assign such wiring to AT&T would be to insert AT&T-controlled facilities between the Operating Companies and the subscribers, and such an assignment would thus be entirely inconsistent with the basic purposes of the decree.\\n\\\"Account 232 also includes the capitalized labor costs associated with the installation and testing of customer premises equipment, and a theoretical case could be made that, since under the plan embedded CPE is being assigned to AT&T, so should be this portion of Account 232. However, the Court was and is persuaded by AT&T's argument, for the reasons stated in AT&T's Response to Objections at 154-55, that there is no practical way to separate out the various handling costs. The provision made in the plan of reorganization regarding Account 232 is consistent with the decree and otherwise reasonable, and there is no basis for reconsidering the Court's approval of the plan in this regard.\\\" 569 F. Supp. at 1129.\\nThus, at the time of divestiture on January 1, 1984, AT&T owned the complex Customer Premises Equipment (CPE) and the local BOC's owned the embedded complex inside wire (CIW), as well as the capitalized investment associated with its installation in years prior to 1981.\\nCustomer Premises Equipment (CPE) is defined for purposes of the MFJ as \\\"equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications, but does not include equipment used to multiplex, maintain or terminate access lines.\\\" 552 F. Supp. at 228.\\nEmbedded Complex Inside Wire (CIW) as defined in the course of these proceedings is \\\"wire which connects stations to switching or common equipment used in complex terminal equipment arrangements such as key telephone and private branch exchange (PBX) systems.\\\" The attorney for SWB offered a more graphic description of the CIW as \\\"the transmission path for the communications from the mouthpiece of the talker into the eventual network for completion over the public network itself.\\\"\\nThe problem lies in SWB's recovery of its investment in CIW prior to 1981 when SWB was required by federal regulation to capitalize its investment in CIW. In 1981, under FCC direction, SWB began expensing CIW costs in the year incurred. The capitalized investment from prior years, Account 232, was to be amortized over a ten-year period, ending in 1991. This translates to a depreciating base of investment requirement of $5,742,000 annually in Kansas, currently recovered by station line charges. The tariff amount is less, $5,657,635, because SWB will no longer perform maintenance. After divestiture, SWB will no longer have station line information; therefore, the sum must be collected in another manner.\\nSWB's solution in Kansas was a General Exchange Tariff Application filed October 27, 1983, which proposes billing owners of CPE who use CIW at a rate per access line. The significant changes are from customer billing to owner billing and from charges based on number of station lines to number of access lines. AT&T and ATT-IS petitioned and were granted permission to intervene.\\nAt a hearing before the KCC, the parties outlined their positions.\\nBecause SWB will no longer have station line information after divestiture, SWB proposed billing owners of CPE who use CIW at a rate of $5.60 per access line. Existing CPE was transferred to AT&T on January 1, 1984, so the \\\"owner\\\" for all practical purposes is ATT-IS. Other vendors could also be \\\"owners\\\" and ATT-IS could sell its CPE. According to SWB, the CPE owner should be billed because the CIW is an integral part of that system.\\nSWB briefly presented two other alternatives: (1) the Mountain Bell Plan where customers continue to be billed directly on the basis of the number of station lines in existence on December 31, 1983, with the disadvantage of a potential revenue shortfall; and (2) the amortization of Account 232 over the general body of ratepayers, an alternative adopted in Texas.\\nATT-IS objected to the undue burden on small customers, unnecessary administrative costs, and increased overhead for ATT-IS, which ATT-IS contends is inherent in the SWB tariff proposal.\\nATT-IS offered as alternatives: (1) the Texas proposal of absorbing these costs as part of the overall rate structure, (2) access line charges imposed directly on customers, and (3) the Moun tain Bell Plan of billing customers on station line charges fixed on a certain date. ATT-IS characterized the Mountain Bell Plan as least disruptive in Kansas because station line charges are currently being made, but did acknowledge that any shortfall becomes part of SWB's general revenue requirement.\\nA consultant to the KCC staff proposed the three alternatives offered by ATT-IS as well as a fourth, no recovery of this revenue by SWB. Administrative costs and disparity in billing were cited as the primary disadvantages of SWB's tariff proposal. The consultant's position was that direct customer billing by SWB was most economical and the Mountain Bell alternative constituted a reasonable plan. He acknowledged that if customers left the system, a revenue shortfall would occur, but that the plan has the advantage of continued KCC regulation.\\nOn December 30, 1983, the KCC entered its order approving the proposed tariff. ATT-IS applied for rehearing, raising numerous issues. The KCC allowed oral argument on the application before denying it on February 20, 1984. ATT-IS timely perfected appeal to this court. SWB has been permitted to intervene on appeal.\\nBefore proceeding to the issues, we must first determine whether this court has jurisdiction of this tariff case. K.S.A. 66-118a states in pertinent part:\\n\\\"The court of appeals shall have exclusive jurisdiction of proceedings for review of an order or decision of the state corporation commission arising from a rate hearing requested by a public utility or requested by the state corporation commission when a public utility is a necessary party. Proceedings for review of other orders or decisions of the state corporation commission shall be to a district court having venue, as provided in K.S.A. 66-118c.\\\" Emphasis added.\\nThe jurisdictional issue before us is whether this tariff action is one \\\"arising from a rate hearing,\\\" thus conferring jurisdiction on this court under K.S.A. 66-118a. Two factors compel our conclusion that jurisdiction lies with this court: (1) the close relationship between this case and the prior rate case; and (2) the similarity of the involved tariff to a rate schedule.\\nIn Commission Docket 137,534-U, the KCC granted SWB a $97.6 million general rate increase on December 23, 1983. Included in that amount is $5.6 million to be recouped by SWB for its investment in CIW. How the $5.6 million in revenue would be collected was not determined in the rate case, but was instead set over to another docket, Commission Docket 83- U-315, which is the tariff case before us. As a result of divestiture, the KCC needed to quickly resolve the underlying rate case and separate treatment of the tariff was thought to be more expeditious. The KCC subsequently entered its order approving SWB's tariff on December 30, 1983.\\nAs the cost of CIW was part of the revenue requirement approved in the rate case, the tariff approval was directly related to the rate hearing. The manner of implementation of the previously approved rate was the only matter addressed in the tariff case, clearly establishing the ruling in the tariff case as a ruling \\\"arising from a rate hearing\\\" under K.S.A. 66-118a.\\nThis case is also analogous to Sunflower Pipeline Co. v. Kansas Corporation Commission, 3 Kan. App. 2d 683, 600 P.2d 794 (1979), where this court assumed jurisdiction after concluding \\\"[t]ariff approval is a concomitant part of a rate increase procedure.\\\" 3 Kan. App. 2d at 686. In Sunflower Pipeline, a KCC order of August 25,1978, granted a rate increase. After Sunflower subsequently filed its proposed tariffs, a dispute arose as to the effective date of the tariffs. An appeal was taken to this court from a second KCC order which held the rate increase was not effective until November 1, 1978. In addressing the KCC's authority to approve tariffs, the court described the relationship between rates and tariffs as follows:\\n\\\"[I]t is reasonable that along with the authority to grant rate increases goes the power to approve the correctness of the tariffs proposed by the utilities to carry out the orders of the KCC. As a result, a rate increase authorized by the KCC will not be effective until the proposed tariffs have been both filed with and approved by the KCC.\\\" 3 Kan. App. 2d at 686.\\nSunflower Pipeline provides support for recognition of a KCC ruling on a tariff application as \\\"arising from a rate hearing.\\\" Here, the rate-tariff relationship is even closer, and only the unusual circumstances resulting from' divestiture caused the severance of the tariff issues from the initial rate case.\\nThe similarity of this tariff to a rate schedule also weighs favorably for our assumption of jurisdiction. Tariffs have been defined, as \\\"those terms and conditions which govern the relationship between the utility and its customers.\\\" Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375, 377, 664 P.2d 798 (1983). A rate schedule involves \\\"pricing the product to particular classes of customers to permit the utility to recover the revenue to which it is entitled.\\\" Midwest Gas Users Ass'n v. Kansas Corporation Commission, 5 Kan. App. 2d 653, Syl. \\u00b6 1, 623 P.2d 924, rev. denied 229 Kan. 670 (1981). A tariff is thus broader than a rate schedule and can include terms beyond the mere pricing of the product. See, e.g., Burdick v. Southwestern Bell Tel. Co., 9 Kan. App. 2d 182, 675 P.2d 922 (1984) (tariff provisions regulating interruption of telephone service).\\nThe tariff in issue is quite similar to a rate schedule, however, for it sets forth how the $5.6 million will be assessed against various classes of SWB customers so that SWB can recover the revenue to which it is entitled. Thus, approval of the tariff by the KCC is analogous to approval of a rate schedule. Cases involving only the validity of a rate schedule, and not the validity of the underlying rate increase, have been appealed directly to this court under K.S.A. 66-118a. Midwest Gas Users Ass'n v. Kansas Corporation Commission, 5 Kan. App. 2d 653; Midwest Gas Users Ass'n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 595 P.2d 735, rev. denied 226 Kan. 792 (1979).\\nThe conclusion that this court has jurisdiction in this case does not mean that all cases involving tariffs are directly appealable to this court under K.S.A. 66-118a. For example, questions of tariff interpretation should be appealed to the district court. Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375. If the tariff is closely related to a prior rate case or if it is similar to a rate schedule, jurisdiction will more likely be with this court than with the district court.\\nThe appellate scope of review of orders or decisions of the KCC is limited to a determination of whether such orders or decisions are lawful and reasonable. K.S.A. 66-118d. See, e.g., Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. at 376; Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. \\u00b6 1, 544 P.2d 1396 (1976). This standard of review was further explained in Midwest Gas Users Ass'n v. Kansas Corporation Commission, 3 Kan. App. 2d at 380-81; cited very recently with approval by our Supreme Court in Kansas Electric Power Coop., Inc. v. Kansas Corporation Comm'n, 235 Kan. 661, 683 P.2d 1235 (1984); and followed in Union Gas System, Inc. v. Kansas Corporation Commission, 8 Kan. App. 2d 583, 585-86, 663 P.2d 304, rev. denied 233 Kan. 1093 (1983); and Ash Grove Cement Co. v. Kansas Corporation Commission, 8 Kan. App. 2d 128, 130, 650 P.2d 747 (1982):\\n\\\"A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. [Citation omitted.] An order is 'lawful' if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. [Citation omitted.] An order is generally considered 'reasonable' if it is based on substantial competent evidence. [Citation omitted.]\\n\\\"The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. [Citation omitted.] Since discretionary authority has been delegated to the commission, not to the courts, the power of review does not give the courts authority to substitute their judgment for that of the commission. [Citation omitted.] The commission's decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experience as statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. [Citation omitted.] Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission's determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. [Citations omitted.]\\\" Emphasis added. Midwest, 3 Kan. App. 2d at 380-81.\\nAlthough ATT-IS asserts nine issues, excluding subparts, we have identified four general issues: (I) whether there was substantial evidence to support the KCC order; (II) whether the KCC order conflicts with federal decisions and constitutional provisions; (III) whether the KCC order is discriminatory; and (IV) whether the KCC erred in evidentiary rulings.\\nI. Substantial Evidence to Support the KCC Order.\\nCentral to many of the issues raised by ATT-IS is its contention that the KCC erred by attempting to authorize assessment of charges for utility service against a party who does not use the service. ATT-IS contends it is not a user of the wire; therefore, the KCC cannot lawfully allow SWB. to impose a charge on ATT-IS. An ATT-IS witness, John Smith, addressed this point at the hearing. He testified that \\\"use\\\" of the wire is \\\"by the customer for the transmission of communications.\\\" He went on to state: \\\"If it were appropriate for Southwestern Bell to charge ATT-IS for use of wire simply because it was connected to ATT-IS's CPE, then on the same rationale, it would be appropriate for ATT-IS to charge Southwestern Bell for the use of ATT-IS's CPE.\\\" This argument seems to miss the point that SWB owns the wire and the ATT-IS CPE will not function without it. The wire is the conduit between the ATT-IS CPE and SWB's local exchange facility. \\\"Use\\\" does not have the narrow meaning ATT-IS suggests.\\nIn State v. Howard, 221 Kan. 51, 53, 557 P.2d 1280 (1976), the court defined the word \\\"use\\\":\\n\\\" 'Use' is a verb of common usage. Ordinarily it means to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain an end.\\\"\\nThe customer's use does not preclude a finding that ATT-IS also uses the wire.\\nThe Oklahoma Corporation Commission, in a decision filed December 29, 1983, approved SWB's plan to charge owners of CPE for use of the wire.\\n\\\"At divestiture, Southwestern Bell will transfer to AT&T Information Systems (ATT-IS) all embedded customer premises equipment (CPE), including equipment referred to as complex CPE, such as a PBX or key system. However, the inside wiring associated with much of the complex CPE will remain with Southwestern Bell. As a result, Southwestern Bell proposes to charge all CPE vendors who connect CPE to the complex inside wiring. ATT-IS proposes instead that the cost of such service be spread over the general body of ratepayers or charge only the customers of the CPE vendors who make use of the inside wiring.\\n\\\"From the evidence presented in this cause, it is clear that ATT-IS or any other CPE vendor may avoid the proposed charges simply by installing its own inside wiring or that of another CPE vendor or purchasing the inside wiring from Southwestern Bell. If a CPE vendor instead opts to make use of Southwestern Bell's inside wiring, it clearly receives a direct benefit. In view thereof, we find that Southwestern Bell's proposal is appropriate.\\\" Re Southwestern Bell Teleph. Co., 57 Pub. Util. Rep. 4th 627, 640-41 (1983).\\nATT-IS is clearly a user of the wire and, therefore, the KCC did not err in authorizing SWB to charge ATT-IS for the use of the wire.\\nATT-IS next contends the KCC order constitutes an abdication of the KCC's duty to regulate the manner of recovery of a public utility revenue requirement. A review of the KCC's authority, its exercise here of that authority, and the necessity of its continued exercise of that authority on the issues presented, prove ATT-IS's contention to be without merit.\\nThe legislative grant of authority to the KCC is contained in K.S.A. 1983 Supp. 66-101, which provides in relevant part:\\n\\\"(a) The state corporation commission is given full power, authority and jurisdiction to supervise and control the public utilities . . . and is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction.\\\"\\nWithin that authority lies control over rates and tariffs. See K.S.A. 66-107 through -111.\\nIn this case, the KCC has exercised that power by authorizing SWB to charge a specified sum for use of its wire. ATT-IS's argument arises from the fact that, in this instance, the KCC cannot control the charge eventually levied against the lessee of the CPE. That would appear to be true of any commercial customer who would have to pass telephone charges along to consumers as part of the cost of doing business. It does not appear to diminish the KCC's control over the regulated entity, SWB. To the contrary, this charge was approved only for 1984, forcing SWB to seek KCC approval of this or an alternative plan for 1985 and beyond.\\nATT-IS argues the wire tariff contravenes the basic principle of ratemaking \\u2014 that costs must be assessed against the cost causer. ATT-IS points out that it was not in existence when CIW installation costs were incurred and thus cannot be charged for them, citing Jones v. Kansas Gas and Electric Company, 222 Kan. 390. However, Jones is distinguishable from the case at bar because it did not address historical costs, but rather stands for the proposition that one class of customers cannot be charged for costs caused by another class of customers.\\nATT-IS follows this argument with contentions that the wire tariff will create waste, inefficiency, and degradation of telecommunications service and that the wire tariff will create increased administrative charges to the CPE customer which would be avoided by a more rational plan. These contentions are no more than arguments for a plan different than the one adopted by the KCC. ATT-IS presents a worst case scenario of abandonment of SWB wire, resulting in a smaller pool of users to meet the revenue recovery requirement. These are speculative considerations which do not make adoption'of the plan in the current year unreasonable.\\nAll parties acknowledge that increased administrative costs are likely to occur. Those costs imposed on users of the wire do not appear unreasonable, however, in light of alternatives presented to the KCC which would have spread the recovery or at least revenue shortfalls over the general body of ratepayers, most of whom derive no benefit from CIW.\\nATT-IS challenges the sufficiency of the KCC's findings of fact to support the order. K.A.R. 82-1-232 provides in relevant part:\\n\\\"Formal orders of the state corporation commission shall conform in substance to the following rules: (a) . .\\n\\\"(3) The order shall contain a concise and specific statement of the relevant law and basic facts which persuade the commission in arriving at its decision.\\\"\\nThis court in Ash Grove Cement Co. v. Kansas Corporation Commission, 8 Kan. App. 2d 128, discussed the purpose of these findings of fact, noting however that \\\"findings do not have to be stated with such particularity as to amount to a summation of all the evidence. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 677, 482 P.2d 1 (1971).\\\" 8 Kan. App. 2d at 133.\\n\\\"The purpose of findings of fact as mandated by K.A.R. 82-1-232 (a)(3) is to facilitate judicial review and to avoid unwarranted judicial intrusion into administrative functions. The Commission must, therefore, express the basic facts upon which it relied with sufficient specificity to convey to the parties, and to the courts, an adequate statement of facts which persuaded the Commission to arrive at its decision. [Citations omitted.]\\\" Ash Grove, 8 Kan. App. 2d at 132.\\nIn its order, the KCC reviews the effect of divestiture on CPE and CIW, noting the controversy in federal district court over separating those assets. The KCC then reviews SWB's current billing system, the proposed billing system, and ATT-IS's objections to it. The KCC also reviews the alternative billing systems explored and explains its reasons for rejecting them. Essentially, the KCC rejected any plan to charge customers who no longer use the wire or to recover the revenue from the general body of ratepayers. The KCC specifically found that ATT-IS uses the wire and benefits from it. The evidence presented substantiates this determination. The KCC's findings of fact are sufficient to clarify its order.\\nATT-IS also focuses on the statement in the KCC's findings that: \\\"We do not find any of the proposals presented to us desirable, particularly not on a long term basis - until 1991.\\\" The KCC, therefore, adopted what to it was the most desirable of the proposals offered and limited its application to 1984. This course of action appears within the realm of fair debate. A reviewing court cannot substitute its judgment for that of the KCC if the matter is within the realm of fair debate. See, e.g., Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. \\u00b6 2, 561 P.2d 779 (1977); Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975); Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 234, 440 P.2d 660 (1968); Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 48, 386 P.2d 515 (1963); Midwest, 3 Kan. App. 2d at 381.\\nII. Conflict with Federal Decisions and Constitutional Provisions.\\nATT-IS contends the KCC order is unconstitutional because it contravenes the supremacy clause of the United States Constitution in that the tariff effects a de facto transfer of wire to ATT-IS in violation of the judgments rendered by the United States District Court for the District of Columbia and by the United States Supreme Court, which require that the complex wire remain an asset of SWB.\\nAs a preliminary matter, both SWB and KCC contend this issue is not properly before the court because ATT-IS has failed to meet the specificity requirement of K.S.A. 66-118b. That statute provides in relevant part:\\n\\\"No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall make application for a rehearing as herein provided. Such application shall set forth specifically the ground or grounds on which the applicant considers such order or decision to be unlawful or unreasonable. No party shall, in any court, urge or rely upon any ground not set forth in said application.\\\"\\nUpon review of the application for rehearing filed by ATT-IS, we conclude that the references made to the supremacy clause in the application are sufficient to apprise KCC and the parties of the supremacy clause argument. The fact that ATT-IS failed to elaborate on this issue, at the hearing on the application for rehearing, does not compel a contrary result. Although K.S.A. 66-118b requires recitation of specific grounds in the application for rehearing as a prerequisite for judicial review, there is no requirement to reassert these issues at argument.\\nThe supremacy clause argument, however, is without merit. The POR assigned CPE to AT&T while assigning CIW to SWB. The district court declined to reconsider that division of assets. United States v. Western Elec. Co., Inc., 569 F. Supp. 990, 1129 (D.D.C. 1983). Despite the lamentations of the SWB witness and the KCC itself as to the wisdom, or lack thereof, in that decision, clearly the states have no authority to countermand it. United States v. American Tel. and Tel. Co., 552 F. Supp. at 154-156. That is not, however, what the KCC decision purports to do. No purchase is ordered. ATT-IS is being charged for use of CIW. ATT-IS is not the only CPE owner, although it is a major one at the current time. Any owner may avoid the charge by not using SWB's wire.\\nATT-IS next contends that the KCC order is unconstitutional because the FCC's report and order in Docket 81-893 preempts any state commission action which would (1) create a de facto transfer of complex wire to ATT-IS, and (2) necessitate ATT-IS's extensive use of restricted customer proprietary information.\\nAgain, as a preliminary matter, SWB and KCC contend this issue is not properly before the court because ATT-IS failed to meet the specificity requirement of K.S.A. 66-118b. ATT-IS states only in its application for rehearing that the KCC order is unlawful and contrary to the order of the FCC. ATT-IS does not state the manner in which the KCC order contravenes FCC Docket 81-893. The general reference to the FCC order could not have put the KCC on notice that the ATT-IS objection went to use of restricted customer proprietary information. The lack of specificity of the application for rehearing bars our consideration of this issue. However, the objection to the de facto transfer of the wire was apparent from the context of the application for rehearing.\\nUpon review of this contention, we do not find that the order effects a transfer of the wire, de facto or otherwise, to ATT-IS. The KCC order allowing charges for use of the wire applies to 1984 only, and ATT-IS is not the only CPE owner on whom the charges are levied.\\nATT-IS also contends that the KCC order confiscates ATT-IS's property in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and \\u00a7 18 of the Bill of Rights of the Kansas Constitution. Again, SWB and KCC contend these issues are not properly before the court because they are not specifically raised in the application for rehearing as required by K.S.A. 66-118b. We agree. ATT-IS does not assert \\u00a7 18 of the Bill of Rights of the Kansas Constitution in its application. In addition, references to the Fifth and Fourteenth Amendments to the United States Constitution do not give the KCC and opposing parties notice of the confiscation argument. Therefore, without prior specific allegation of these issues in the application for rehearing, they cannot be urged at this time. Peoples Natural Gas v. Kansas Corporation Commission, 7 Kan. App. 2d 519, 526, 644 P.2d 999, rev. denied 231 Kan. 801 (1982).\\nIII. Discrimination Arguments.\\nATT-IS contends the wire tariff results in disparate treatment of similarly situated parties, creating arbitrary classifications. K.S.A. 66-107 prohibits \\\"unjust or unreasonable discriminatory or unduly preferential\\\" rates. See, e.g., Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. at 377; Milling Co. v. Postal Telegraph Co., 101 Kan. 307, 309, 166 Pac. 493 (1917). See also K.S.A. 66-113.\\nATT-IS contends the KCC order is discriminatory in two respects: (1) it differentiates between CPE vendors who lease equipment and those who sell it; and (2) its charges, based upon the number of access lines, do not correlate with the amount of wire actually used.\\nThere is no merit to the contention that it is discriminatory to differentiate between CPE vendors who lease equipment and those who sell it. The tariff applies uniformly to all who own equipment. The lessor who owns the equipment is subject to the tariff; when he sells the equipment and ceases to own it, he does not pay the tariff. The result is not discriminatory.\\nATT-IS also contends that, among those who own CPE equipment, there is discrimination as a result of this tariff because the amount of wire used does not correlate with the number of access lines. Although ATT-IS phrases this issue as one of customer discrimination, the label is inappropriate for, although the customer may eventually pay the charge, it is initially imposed upon the owner.\\nThere was conflicting testimony regarding the relationship between the number of access lines a customer has and the amount of complex wire used. Dale Kaeshoefer, who testified for SWB, stated there was generally a relationship; John A. Smith, who testified for AT&T, stated there was no consistent relationship. The KCC has discretion to weigh and accept or reject testimony presented to it. Kansas - Nebraska Natural Gas Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 674, 676, 610 P.2d 121, rev. denied 228 Kan. 806 (1980). The KCC was pre sented with conflicting evidence, and this court cannot substitute its judgment for that of the KCC. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. at 48. The KCC order is considered reasonable if based on substantial competent evidence. Midwest, 3 Kan. App. 2d at 380. There would not, then, appear to be a viable argument that one 'class has been burdened with costs created by another. Cf. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 565 P.2d 597 (1977).\\nIV. Evidentiary Questions.\\nATT-IS contends the KCC erred in admitting into evidence portions of the prefiled testimony of Dale Kaeshoefer and the exhibits appended to his testimony. This testimony and the accompanying exhibits related to ATT-IS's alleged recommendation of the current SWB proposal. The objections raised by ATT-IS were overruled by the KCC at the hearing. ATT-IS also objected to Kaeshoefer's explanation on cross-examination of SWB's sale of wire to ATT-IS. ATT-IS argued that the explanation was hearsay and unresponsive. That objection was overruled.\\nThe rules of evidence as found in the Kansas Code of Civil Procedure are to be applied by the KCC at all of its hearings. The chairman may, however, relax the rules of evidence when \\\"it will be in the public interest to do so and will aid in ascertaining the facts.\\\" K.A.R. 82-1-230. K.S.A. 60-407(/) provides: \\\"[A]ll relevant evidence is admissible.\\\" K.S.A. 60-401 defines relevant evidence as \\\"evidence having any tendency in reason to prove any material fact.\\\" The reasonableness of SWB's proposal to bill ATT-IS for use of CIW was the central issue at the hearing. Kaeshoefer testified that ATT-IS at one time proposed the SWB plan as an alternative, and correspondence from a SWB executive supported that testimony. Under the Kansas Code of Civil Procedure, this evidence would be admissible over a relevancy objection. Further, the record indicates that John Smith, an ATT-IS witness, had an opportunity to refute this evidence, testifying that alternatives other than recovery from the general body of rate payers came from the BOC central staff.\\nAs stated above, ATT-IS also objected to Kaeshoefer's statement regarding the sale of wire as unresponsive. Kaeshoefer was asked whether SWB would consult with the customer before removing wire ATT-IS does not want to use. Kaeshoefer stated that he had been told the nature of the transactions by others. The chairman ruled the statement admissible because Kaeshoefer gained the information in the course of his business responsibilities. Although this evidence is objectionable under the Code of Civil Procedure, its admission is harmless in the context of the entire proceeding. Substantial justice was not affected by the admission. K.S.A. 60-261. Furthermore, under K.A.R. 82-1-230, the chairman has some discretion in admission of evidence.\\nAll additional arguments and authorities asserted by ATT-IS, not specifically addressed in this order, have been considered and found to be without merit. We therefore find the tariff order filed by the KCC on December 30, 1983, was lawful because the order was within the statutory authority of the KCC, and the prescribed statutory and procedural rules were followed. We further find the order was reasonable as there was substantial competent evidence to support it.\\nJudgment is affirmed.\"}"
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+"{\"id\": \"44934\", \"name\": \"The State of Kansas, Appellee, v. Tom Reynolds, Appellant\", \"name_abbreviation\": \"State v. Reynolds\", \"decision_date\": \"1934-10-06\", \"docket_number\": \"No. 31,813\", \"first_page\": 269, \"last_page\": \"276\", \"citations\": \"140 Kan. 269\", \"volume\": \"140\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:52:17.263272+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Kansas, Appellee, v. Tom Reynolds, Appellant.\", \"head_matter\": \"No. 31,813\\nThe State of Kansas, Appellee, v. Tom Reynolds, Appellant.\\n(36 P. 2d 323.)\\nOpinion filed October 6, 1934.\\nWilliam Barrett and George Barrett, both of Pratt, for the appellant.\\nRoland Boynton, attorney-general, Everett E. Steerman, assistant attorney-general, and J. V. Severe, county attorney, for the appellee.\", \"word_count\": \"2761\", \"char_count\": \"15879\", \"text\": \"The opinion of the court was delivered by\\nHutchison, J.:\\nThe one legal question presented for consideration in this appeal is that of former jeopardy. The error assigned by the defendant is in the sustaining of the demurrer of the state to the plea in abatement of the defendant alleging former acquittal of the same offense and containing a motion to discharge the defendant on that account. When the demurrer to the plea in abatement was sustained, the motion to discharge the defendant was overruled. The same question was again raised by the defendant just before the trial, some weeks later, upon a motion to discharge, and after the trial and conviction by a similar motion in connection with the motion for a new trial, both of which motions to discharge, as well as the motion for a new trial, were overruled.\\nThe plea in abatement showed that an information had been filed in the district court of Kiowa county, a short time prior to the filing of this case in Ford county, charging this same defendant with apparently the same offense,, and that after the defendant waived arraignment and pleaded not guilty in the district court of Kiowa county and a jury was impaneled and sworn to try the cause in Kiowa county and the first witness had been duly sworn, the defendant objected to the introduction of evidence iii the case for the reason that the information failed to charge a public offense. The court sustained this objection and discharged the defendant. The plea in abatement further states that the court \\\"did then and there discharge said jury from further consideration of said case without any sufficient or lawful reason therefor, and without the consent of said defendant.\\\" To the plea in abatement in this, the Ford county case, was attached a copy of the information filed in Kiowa county, which was claimed by defendant to be insufficient because it failed to give the name of the owner of the property taken and a more definite description of such property than \\\"certain goods, wares and merchandise of the value of more than twenty dollars.\\\"\\nThis objection of the defendant to the introduction of evidence in the Kiowa county case is very similar to that which is ordinarily made before the arraignment and plea as a motion to quash the information on the ground of insufficiency, or that it does not charge a public offense. The delay, however, in making the objection until after the jury is sworn to try the cause places the defendant in jeopardy unless some of the necessary elements of former jeopardy are lacking.\\nAppellant calls our attention to R. S. 60-2914, which enumerates the grounds for which a court may discharge a jury, as sickness of a juror, accident, calamity or necessity, consent of parties, or improbability of their agreeing, none of which reasons exist here. Appellant also cites in support of the existence of one of these reasons, and that such be stated in the journal entry, which was not done here, the cases of State v. Allen, 59 Kan. 758, 54 Pac. 1060, and State v. Reed, 53 Kan. 767, 37 Pac. 174. The. first of these cases had been fully tried upon its merits under a plea of not guilty, and it had been given to the jury for deliberation, and it was there held under the statute above cited that a discharge without a reason being assigned operates as an acquittal. The second case above cited was where a juror was sick, but because no- formal record was made of the reason for the discharge, notwithstanding there was an abundance of facts and circumstances to establish such a reason, this court, after a full discussion of the statute, declined to say there was no good reason for the discharge of the jury.\\nAppellant cites and urges strongly the case of State v. Stiff, the opinion being reported in 117 Kan. 243, 234 Pac. 700, and the opinion on rehearing being in 118 Kan. 208, 234 Pac. 704. In this case, before the defendant had pleaded not guilty, he had filed a motion to quash the information for the reason \\\"that the information does not state facts sufficient to constitute a public offense under the laws of the state of Kansas.\\\" The attention of the court was not called to any defects in the information. The motion to quash was denied, and the next day, after a jury had been impaneled and sworn to try the case, the county attorney asked to amend the information. The court denied this application, set aside the- order denying defendant's motion to quash the information and sustained that motion, and also discharged the jury. The position of the court on appeal, and the grounds for its rulings, are set out in the syllabus of the first opinion, which are as follows and were adhered to in the rehearing:\\n\\\"A person who is brought to trial on an information which, although de fective, sufficiently charges an offense to sustain a judgment on a verdict of guilty, is placed in jeopardy when the jury is sworn to try the cause; and, where the jury is afterward discharged for a reason other than one of those contained in section 60-2914 of the Revised Statutes, he cannot be again brought to trial for the same offense charged in another information.\\n\\\"A defendant charged with a criminal offense cannot be said to have consented to the discharge of a jury without a verdict where, before pleading, his motion to quash the information had been denied and afterward a jury had been sworn to try the cause and was discharged before the introduction of evidence without the request of the defendant other than by his motion to quash the information.\\\" (Syl. \\u00b6 1, 2.)\\nThe facts on which this opinion was based are very different indeed from those in the case at bar. 'In the latter we have the defendant objecting to the introduction of evidence after having been put in jeopardy, and his attorney pointing out the insufficiencies of the information, which go far towards making it invalid and such as might not sufficiently charge an offense as to sustain a judgment on a verdict of guilty. We also have the trial court sustaining the defendant's objection to the introduction of evidence, which of necessity disposes of the first case at the request and insistence of the defendant, instead of overruling the defendant's motion to quash, as in the Stiff case, and later reversing that ruling without any request from the defendant.\\nThe case of State v. Madden, 119 Kan. 263, 237 Pac. 663, cited in this connection, is also very different from the one at bar, it being an appeal from a conviction of a misdemeanor in justice of the peace court, and after the jury was sworn in the trial in the district court counsel for the state moved to dismiss the case, which was done. It was not the appeal that was dismissed, but it was the case itself that the court dismissed on the motion of the state.\\nAppellant cites authorities to the effect that mere silence of the defendant, or his failure to object or protest against the discharge of the jury, does not constitute a consent to such discharge of the jury or in any way waive his constitutional rights against being subjected to a second jeopardy. To this we fully agree, but we can readily see a distinction between such conduct and the active pressing of an objection the sustaining of which will produce the same result.\\nReference is made in the briefs of both parties to the statute and the decisions thereunder where property is taken by larceny in one county and brought into another, as to the jurisdiction being in either, but no jurisdictional question is here involved, and we shall regard this as concerning one offense only.\\nIn determining whether or not a former jeopardy existed in this case, we must first consider whether the information in the Kiowa county case was sufficient to sustain a conviction, and whether the sustaining of the objection made and urged by the defendant, which necessarily disposed of a jury trial, was with the consent of the defendant. The statutes of this state and the approved texts require that a statement of the facts constituting the offense of larceny be contained in the information, and R. S. 62-1007 carries this requirement to the name of the owner of property taken, and R. S. 62-1005 requires that the language of the information must be direct and ' certain as regards the party and the offense charged. The Kiowa county information nowhere named the owner of the property taken, but named the railroad company as being in charge of the premises or depot from which it was taken. But this defect may not be enough to make the information insufficient, although defendant named it in his objections as such a defect. It was held in State v. Bartholomew, 116 Kan. 590, 227 Pac. 366, that\\u2014\\n\\\"In an information charging larceny, the title to the property may be alleged to be in the person in whose possession it was when it was stolen, although the ownership may be in some other person.\\\" (Syl. \\u00b6 1.)\\nIn State v. Urban, 117 Kan. 130, 230 Pac. 77, it was held:\\n\\\"In an information charging larceny the title to the property may be laid either in the owner or the person from whom the property was stolen.\\\" (Syl. \\u00b6 2.)\\nAnd in State v. Pigg, 80 Kan. 481, 103 Pac. 121, it was stated:\\n\\\"The actual status of the legal title to stolen property is no concern of the thief. . .\\\" (Syl. \\u00b6 6.)\\nThe information, however, is very much less direct, certain and concise with reference to the description of the property said to have been taken. It charges the taking of \\\"certain goods, wares and merchandise of the value of more than twenty dollars.\\\" The general rule seems to be that an article stolen should be described with such certainty as will enable the jury to decide whether the article proved to have been stolen is the very same as that charged in the information and show judicially to the court that it can be the subject matter of the offense charged and enable the defendant to plead his acquittal or conviction to a subsequent information relating to the same article.\\nIn State v. Tilney, 38 Kan. 714, 17 Pac. 606, it was said:\\n\\\"An information for larceny, where the, only description of the property stolen is 'national bank notes, United States treasury notes, and United States silver certificates, money of the amount and value of one thousand dollars,' without any allegation of the inability of the prosecutor to give a more specific description, is insufficient and will be held bad on an objection seasonably made.\\\" (Syl.)\\n(See, also, State v. McAnulty, 26 Kan. 533; State v. Segermond, 40 Kan. 107, 19 Pac. 370; and State v. Mumford, 70 Kan. 858, 79 Pac. 669.)\\nThese cases cited recognize and justify an excuse for failure to give a specific description of the property in the information, but no such excuse is found in the Kiowa county information.\\nIn 36 C. J. 813 it is said:\\n\\\"The character of the thing to which the charge relates must be set forth in the indictment with definiteness and certainty. It is not sufficient to describe the thing stolen merely as 'a parcel,' or as a 'case of merchandise,' or as 'a certain lot of furniture,' or as 'certain paper,' or 'certain tools,' or as 'certain property of the United States furnished for the military service.' \\\"\\nWe must conclude that certain goods, wares and merchandise is not such a definite and certain description as will enable the juiy to decide upon a trial whether the proof furnished would establish the identity of the articles charged to have been taken, nor justify either court or jury in holding that the terms used referred only to smoking tobacco, cigarettes, towels or pecan nuts, as described in the Ford county information; neither is the indefiniteness and uncertainty excused in the Kiowa county information by any statement, which is tolerated and allowed in this and other states, to the effect that a more definite and specific description is unknown and cannot be given. We conclude that the description of the property charged in the Kiowa county information to have been taken was so indefinite as to render that information insufficient to charge the defendant with a public offense. This was the second ground of the defendant's objection to the sufficiency of the Kiowa county information, and its being sustained by the trial court on the motion, at the instance and with the consent of the defendant, necessarily disposed of the entire case in the district court of Kiowa county, including the discharge of the jury; and because of this insufficiency of the information and the consent of the defendant to its being so held, it will not constitute a former jeopardy from which parties are protected by our constitution and statutes. R. S. 21-115 specifi cally excludes from former jeopardy instances where exceptions are made and allowed to the form or substance of the indictment or information. In 16 C. J. 241 it is stated:\\n\\\". . . Where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put defendant in jeopardy and bar another prosecution.\\\"\\nAlso, at page 259 it is stated:\\n\\\"When accused in a criminal case makes a motion in arrest of judgment upon the ground that the indictment is defective, and this motion is sustained, he will not thereafter be heard to allege that the indictment was in fact good and that he was in jeopardy thereunder; and this is true without reference to whether the indictment was in fact good or bad in substance.\\\"\\nThe following is from 8 R. C. L. 152:\\n\\\"It may be stated as a general rule that where an indictment is quashed at the instance of the defendant, though after jeopardy has attached, he cannot thereafter plead former jeopardy when placed on trial on another indictment for the same offense. His action in having the indictment quashed constitutes a waiver of his constitutional privilege.\\\"\\nIn Bishop on Criminal Law, 9th ed., 759, it is said:\\n\\\"Where, at any stage of the proceedings, the defendant procures the indictment to be quashed, he cannot in bar to a new trial assert that the first was good, and he was in jeopardy under it.\\\"\\nSee, also, to the same effect 2 Wharton's Criminal Procedure, 10th ed., \\u00a7 1444, and Kelley's Criminal Law and Procedure, 4th ed., page 191, and 19 A. L. R. 623.\\nThe elements of former jeopardy are stated in 16 C. J. 237, as follows:\\n\\\"A defendant in a criminal prosecution is in legal jeopardy when he has been placed upon trial under the following conditions: (1) Upon a valid indictment or information; (2) before a court of competent jurisdiction; (3) after he has been arraigned; (4) after he has pleaded to the indictment or information; and (5) when a competent jury have been impaneled and sworn.\\\"\\nOur court, in State v. Brick Co. et al., 117 Kan. 192, 230 Pac. 1035, emphasized the necessity of the information being sufficient to sustain a conviction and the discontinuance of the former trial being without the consent of the accused in order to constitute legal jeopardy, in the following language:\\n\\\"An accused is in legal jeopardy when a trial is begun before a court of competent jurisdiction upon an indictment or information which is sufficient to sustain a conviction, and when jeopardy attaches the discontinuance of the trial without the consent of the accused or an absolute necessity is a bar to another prosecution for the same offense a second time.\\\" (Syl. \\u00b6 1.)\\nUnder these authorities the proceedings in the Kiowa county case did not constitute a former jeopardy, and there was no error in the district court of Ford county in so holding.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"46801\", \"name\": \"C. M. Stebbins et al. v. W. W. Guthrie and A. H. Horton\", \"name_abbreviation\": \"Stebbins v. Guthrie\", \"decision_date\": \"1868-04\", \"docket_number\": \"\", \"first_page\": 353, \"last_page\": \"370\", \"citations\": \"4 Kan. 353\", \"volume\": \"4\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T22:17:33.012179+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the justices concurring.\", \"parties\": \"C. M. Stebbins et al. v. W. W. Guthrie and A. H. Horton.\", \"head_matter\": \"C. M. Stebbins et al. v. W. W. Guthrie and A. H. Horton.\\nError from AicMson County.\\nThe decision in Bemis v. Becker [1 Kans., 248], that \\u201cwhere one state adopts a law from another, the judicial construction given to the statute in the state wherein it originated, follows it to the state of its adoption,\\u201d confirmed, and the act \\u201c for the relief of occupying claimants,\\u201d of March 4, 1862 [Comp. L., 121], construed by the light of Lessees of Davis v. Powell [13 Ohio, 320], and Shuler v. Magin [2 Ohio, 236],\\nWhere an occupying claimant held under a purchase at a sale, under an order of sale, and also held under \\u00e1 certificate and deed of sale for taxes, and where plaintiffs below brought one action to set aside the sale under the order, another to set aside the tax deed and certificate, and a third to recover title, in all three of which actions they recovered, and where the defendants below claimed their improvements under said act for the relief of occupying claimants, it was\\nHeld that the case, as it stood in court, was as though'but one suit had been brought in the court below.\\nHeld that, being in possession of, and holding land under any sale for taxes authorized by law, entitled the occupant to the benefit of the provisions of the \\u201coccupying claimants\\u201d act, if his possession has been obtained without fraud or collusion; and fraud or collusion must be affirmatively shown, to defeat the claim.\\nHeld that a purchaser at a tax sale becomes the owner at the time of the ' purchase, his title being only defeasible by redemption for two years.\\nHolding under a certificate of sale, without a tax deed, semble, is sufficient to entitle the holder to the benefits of the occupying claimants act 2 Comp. L., 121]; and a fraudulent holding of possession will not be inferred from a vague description of the premises in the certificate.\\nA defective title only will enable an occupant to claim.\\nThe spirit of the law is, that the person receiving the benefits of improvements honestly made on lands, shall make compensation. The act rests on the broadest equity, and should receive a liberal construction.\\nHeld that where the claimant held under a certificate of sale for taxes in which the description was vague, but at the time of the commencement of the action held under a tax deed, with ample description, obtained after improvements made, it was sufficient to entitle him to the benefits of the provisions of the law.\\nA claim of an occupying claimant for value of his improvements, first introduced by supplemental answer, held made in time.\\nSemble, that where a tax deed is acknowledged, it is sufficient without witnesses.\\nThe principal questions involved in this case arose out of an application on the part of defendants below for the remedies given to occupying claimants in the act of March 4, 1862. The action was commenced August 25, 1866, to recover possession of fifty-four feet off the east side of lot number seven, block twelve, in Atchison City, together with rents and profits. A supplemental petition was filed July 17th, 1867, claiming $2,000 additional damages for rents, &c., since the commencement of the action. The defendants thereupon filed a supplemental answer, in which they allege that \\u2018\\u2018they admit that they have held possession of said premises since the commencement of this action, and for a long time before, and that they have .received certain rents and profits of the same since the commencement of this suit.\\n2. \\u201c And as a further and second answer, defendants say, by way of counter-claim for rents and profits, that they took possession of said real estate, in good faith, in first part of May, 1866, under and by virtue of a tax certificate, issued by the treasurer of said county, numbered 241, dated May 23d, 1864,. and issued- to John M. Price, the purchaser of said premises at a tax sale, of the date (of) last aforesaid; and which certificate was afterwards, to wit, oh the 8th day of May, 1865, duly sold and assigned by said John M. Price to these defendants, and upon which certificate the county clerk of said county did, on or about the 14th day of July, 1866, issue a tax deed of said premises to defendants, as required by law.\\n\\u201cDefendants further say that after they had taken possession of said premises, under and by virtue of the titles and proceedings aforesaid, they did, in good faith, and in the full conviction that their title to said premises was good and perfect, proceed to erect a two-story brick building upon said premises, which were then entirely vacant and without improvements; and did make lasting and valuable improvements upon said premises, of the value of eight thousand dollars ($8,000); and said defendants have also paid taxes on said premises to the amount of about five hundred dollars ($500), since taking possession of the same. Therefore the said defendants present and show to fin's court, as a counter-claim or set-off to any rents and profits which may be found \\u25a0 due plaintiffs, the following sums, for which they have a lien upon said premises, to wit: Lasting and valuable improvements, $8,000,\\u201d &c.\\nTo this a reply was filed denying specifically, and alleging that the tax sale, certificate and deed had been set aside, and adjudged void.\\nOther facts in the case appear in the opinion of the court.\\nB. F. Stringfellow, C. G. Foster and P. T. Abell, for plaintiffs in error.\\nW. W. Guthrie and A. H. Horton, per se.\\nStringfellow, Foster and Abell,\\ncontended:\\n1. The \\u201coccupying' claimants act,\\u201d of March 4th, \\u201982 {Comp. L., 121), provides for a successful claimant as well as for an unsuccessful occupying claimant. There could not be a successful claimant unless the title of the occupying claimant was defective. This statute was made for the relief of parties who, without fraud or collusion, take quiet possession of lands, and make lasting improvements thereon, and can show any of the muniments of title named in the act, to justify the possession.\\n2. The court had already adjudged the defendant\\u2019s title defective and bad. And section 3 of the act provides that the court rendering such judgment, shall cause a journal entry thereof to be made, &c. The plaintiffs deny that defendants took possession in good faith, but they offered no evidence to sustain the charge. The evidence shows that defendants acted in good faith, and believed their title to be perfect. The burden of showing fraud and collusion is on the plaintiffs. In absence of a showing of bad faith, good faith and quiet possession on the part of the defendants must be conceded. The findings of the court below concede those points. Then the only question to be considered is, did the defendants show any of the evidences of title mentioned in sections 1 or 2 ?\\n3. They showed a tax sale, a tax certificate, and a tax deed issued thereon, duly recorded; and the court found that claimants had paid legal taxes, and allowed them therefor. Under section 2, there could be no occupying claimant, unless, for some reason, the tax sale was made invalid. The law was made for cases where the supposed title turns out to be.invalid. It might be inferred from the findings of the court, that using the words, \\u201cequity of redemption,\\u201d in the order of sale, cut some figure in the case.' The mortgagor\\u2019s estate was formerly .called his \\u201cequity of redemption;\\u201d now it is the \\u201clegal estate.\\u201d So it was, in reality, the legal estate that was sold. 1 Kas., 281/ 2 id., 390.\\n4. It was a principle in equity to - allow a bona fide occupant the value of his improvements on real estate to be deducted from rents and profits. (1 Story Eq. [4tlb ed.\\\\ \\u00a7\\u00a7385, 388, 389, 395, 397, 655; 2 id., \\u00a7799, notes 1237, 1238-9 ; Putnam v. Ritchie, 6 Paige, 390, 405-6 ; Green v. Riddle, 8 Wheat. R., 1, 79-82.; Bright v. Boyd, 1 Story R., 478, 494-5 ; 3 Paige, 470, 546, 555 ; 1 John., ch. 385; Ra\\u00edale on Qov., 94, 328, notes.) A bona fide occupant might maintain an independent action in equity for the value of his improvements. (2 Story Eq. [4th ed.\\\\, \\u00a7\\u00a7 799,1237. Notes and cases cited above.) Parties are allowed, under our code, to set up and unite both legal and equitable claims and defenses, or either. (\\u00a7\\u00a7 89, 102.) Thus an equitable claim, counter-claim, or set-off, may be set up against, a legal claim ; and if the equitable claim exceeds the legal claim, judgment is rendered for the balance. The code facilitates the manner of pleading and ob- taming rights in equity. If these parties were entitled in equity to these improvements, they are .entitled to them now; and the occupying claimant act has simplified and made more definite and certain the equitable rights heretofore recognized by the courts of equity. Nash,, 75-6.\\n5. The title shown by the occupants clearly brought them within the provisions of the 2d section of the occupying claimant act. a. They were in quiet possession of, and holding said land under a tax sale, and when the improvements were made, they held a certificate of the treasurer, of said sale. And when the plaintiffs bought the property, the occupants had a tax deed, and that duly recorded. . (.Lessee of David J. Beardsley v. Erastus Chapman, 1 O. 8., 118; Robert W. McCoy v. Wm. Grandy, 3 O. 8., 463; Harrison v. Castner, 11 O. 8., 339.) In that case the court say: \\u201cAccording to the language of our decisions under the statute, a belief that the land is his own has been considered sufficient to protect the occupant.\\u201d \\u201cThe equity of the statute embraces all improvements, made in the honest belief of ownership, if at the time of rendition of judgment the occupant is in possession, under such a title as brings him within the meaning of the statute.\\u201d (.Lessee of Davis v. Powell, 13 Ohio R., 308, 320 ; Longworth v. Wolflngton, 6 id., 9 ; Lessee of Shaler v. Hagin, 2 id., 235; 19 id., 57 ; 11 id., 36 ; 11 O. 8., 339 ; 2 Pet., 592.) In the 13th Ohio, the court say: \\u201cThe statute is in the present tense.\\u201d \\u201cThe exhibition of title is at the rendition of the judgment.\\u201d (p. 320.) These authorities have settled the law beyond a doubt, that the occupant can hold his improvements, when made before a tax deed or sheriff\\u2019s deed was issued, provided the occupant has such, title at the rendition of the judgment. These cases effectually dispose of the 2d and 3d conclusions of law of the court below on the occupying claimant act. (lHans., 226, 249'.) b. The fourth, and last conclusion of the court below, on the same act, is obnoxious to the words of the act as well as to good common sense, but that fact, also, has been adjudicated, and is no longer an open question. Longworth v. Wolfing-ton, 6 Ohio J\\u00bf., 9.\\nGuthrie <fe Horton, for themselves,\\nsubmitted.\\n1. A tax certificate is nothing but an incumbrance for two years; it confers no title, and hence, to one holding under such certificate, no adverse title could accrue; but the question in this case, arises under the act for the relief of occupying claimants.\\n2. Unless this question was properly before the court below, it is not reviewable here. The question of the right to claim, under that act, could only be raised after eviction by an adverse title. (1 O. 8., 120; Harrison v. Eastman, 11 O. 8., 347.) The correct practice is here pointed out. p. 339.\\n3. The tax certificate was void: a. For Indefiniteness of description of the lot. b. The law under which the tax was levied, was unconstitutional and void, and has been so held. \\u2022 Bartholow v. City of Atchison, ante, p. 124.\\n4. The treasurer\\u2019s books, of themselves, are not sufficient authority for collecting a tax.\\n5. No principles of equity could avail plaintiffs in error; they can only claim by virtue of the statute. The tax certificate, as shown, was a nullity, and had been so held by the district court; no tax was due at the time of the sale; no such property as described therein was ever sold for a valid tax \\u2014 the \\u201ceast part of lot'7 bl\\u2019k 12,\\u201d means nothing, as a description.'\\n6. It is for the claimants to bring themselves within the provisions of the statute ; they must show a bona fide occupancy, and an utter absence of fraud and collusion. This was not done.\\n7. The tax certificate being a nullity in law, the claimants are presumed to have known it, and could get no rights under it. (11 How., 414; 18 Curt., 665.) Duripg the time allowed for redemption, no right of possession could be acquired without -consent of the owner of the fee in the lot, or his lessee; entry without such consent, does not give such quiet possession, without fraud, as is contemplated in the act. The deed, founded on a sale for a void tax, could not help the matter. Stat.,\\u201963, p. 100; Comp. L., 876, \\u00a7\\u00a77, 10; 355, \\u00a712; Donohue v. Veal, 19 Mo., 331; 3 O. 8., 469.\\n8. The object of the \\u201coccupying claimants act\\u201d is to protect th\\u00f3se who improve lands on an apparent title, which, on its face, gave the right of possession, and when that possession is obtained as the law prescribes, and not to protect speculation by squatting trespassers. As a basis of the claim, such color of title must be affirmatively shown as would constitute an adverse title. This was not done. No trespasser can be in quiet possession, nor obtain a right thereto. {McCoy v. Grundy, 3 Ohio 8., 466.) Possession under a mere lien or incumbrance is. not quiet. {Heyeato v. Doe, 2 Smith's Cas., 471-2, 566-7.). Holding a lien against the owner is not holding by a title adverse to the owners. {Moore v. Brown, 11 How., 414.) For these reasons it was not possible for plaintiffs in error to have, by any proof, maintained a claim for improvements.\\n9. But had there been a foundation established, the plaintiffs in error did not bring themselves within the provisions of the law. .Our statute is similar to that of Ohio. It has been decided that the claim can be maintained only where the evidence named in the statute is produced. (Beardsley v. Chapman, 1 Ohio 8., 118; 4 Mete., 323, 324.) The evidence in the case shows that plaintiffs in error did not believe.they had a good title. One knowing. the quantity of his estate to be less than a' full title, cannot come within the act. (1 Ohio 8., 123.) Only acts of good faith are protected. Plaintiffs in error ask relief through an equity statute. They must show themselves to have done equity. (8ee also 11 O. 8., 339.) The evidence shows the reverse. They sought and. purchased incumbrances from four sources, and though utterly void, sought'to foist them upon the court as valid; they covered every inch of the lot with an expensive block; and all this without having conferred with the owner. Theirs(was merely an effort to make the poor African owner greatly their debtor, and then to rob him under cover of a statute made for the enforcement of equity \\u2014 -to crush him by the weight of their purse. Plaintiffs in error cannot plead mistake (McCoy v. Gr'undy, 3 Ohio 8., 466 ; 33 Mo., 386), nor a.title that is null. 16 III., 328.\\n10. The tax certificate was not only void in law, but on its face. A voidable title may be defective and adverse, but if void it can be neither,, and the law presumes the holder to know its worthlessness. Moore v. Brown, 11 How., 414; IQ Curt., 665, 425; Irving v. Brownell, 11 111. Ii., 402'; Curry v. Hinman, 11 III. B., 420; Jackson v. Moore, 18 {H. Y.) Johns., 441; Bowlandr. Doty, 1 {Del.) Harrington, 3-11; Stewart v. Aten\\u2019s Lessee, 5 Ohio S., 257, 261; Barker v. Hesseltine, 27 Maine, 354 ; Turney v. Yeoman, 16 Ohio, 24 ; Bichardsonv. State, 5 Blackford {Ind.), 51; Head v. James, 13 Mich. B., 641; 15 Ohio, 134, 155; Blckw. Tax Tit., 578.\\n11. In ex parte proceedings, no rights attach unless stricti juris. 3 Corns. {H. Y.), 401.\\n12. Again, section 2 of the occupying claimants act is-unconstitutional. It attempts to deprive a person of his property without due process of law \\u2014 1. In attempting to give the right of possession and use of his property without due course of law therefor. 2. In attempting to subject the land to two burdens for one default \\u2014 1, use, and of course, rents ; 2, a high penal interest. Taking the use of property is as much in violation of art. 5, amended U. S. Const., as to take the fee. {McCoy v. Qrandy, 3 O. S., 468; Sedg. Con. Law, 610; Weller v. St. Paul, 5 Min. B., 100.) The entire act is a great innovation, and not to be extended by implication. McCoy v. Qrandy, 3 O. S., 466, 471; 2 Peters\\u2019s B., 492 ; 8 Curt., p. 198.\", \"word_count\": \"5299\", \"char_count\": \"29816\", \"text\": \"By the Court,\\nKingman, C. J.\\nThis was an action for the recovery of real property, brought by the defendants in error, to recover the east part of lot 7, in block 12, in the city of Atchison. The (cause was tried by the court, who found the right of possession in the defendants in error. The plaintiffs in error claimed the benefit of the statute entitled \\\"An act for the relief of occupying claimants of land,\\\" which demand the court refused, and the plaintiff in error brings the case to this court for review.\\nThe court found and stated the conclusions of fact, and from them deducted the conclusion of law, that the applicants were not entitled to the benefit of said act.\\nThe facts found are substantially these: On the 27th day of April, 1865, Yates was owner of the property in controversy, which he had bought from McCubbin. There was a mortgage on the property for something over $1,200, made by Yates to McCubbin.\\nStebbins & Porter on that day bought the mortgage for the amount due thereon. On the 29th day of the same month, they bought of Bartholow & Brother a judgment which was obtained against Yates by an attachment on this lot, for two hundred and twenty-seven dollars, under which judgment'the property was sold on the 19th day of May, 1865, and Stebbins and Porter became the purchasers. This sale was confirmed on the 13th day of July, 1865, and a sheriff's deed made September 3, .1866.\\nOn the 27th day of April, 1865, Stebbins & Porter bought a tax sale certificate of the same property, certifying that the premises had been sold for taxes on the 24th day of May, 1864; and on the 14th day of July, 1866, a tax deed was made to them therefor.\\nThe judgment under which the sale was made was, upon proceedings duly had, declared null and void, at the December term, 1866, of the district court of Atchison county. The tax deed and certificate were, at the same term this case was tried, in proceedings duly had, declared null and void.\\nIn the tax certificate the lot was described as \\\"lot Ept. 7, block 12, in old Atchison, in Atchison city, situated iu Atchison county, Kansas. ' ' In the tax deed it was fully described.\\nStebbins & Porter took possession of the premises about' the 1st day 'of June, 1865, and commenced building, and by the middle of August thereafter had completed lasting and valuable improvements thereon, costing them .$7,500, and had remained in possession ever since.\\nThese are briefly all the facts necessary to state for a full understanding of the only points we shall decide in the case. The mortgage cuts no figure in the case, as it was not foreclosed.\\nWe shall abstain from any consideration of the judgment, and the sale, and sheriff's deed thereunder, as the view we take of the occupying claimant act is decisive of this case on the tax sale.\\nThe occupying claimant law of this state is copied from that of Ohio, with some additions, not affecting the case before us. This law, enacted many years ago in that state, has been passed upon' by its highest courts in almost every conceivable aspect of it, and received a judicial construction, so uniform and consistent, and in such entire harmony with the language of the statute, and the equitable objects sought to be attained by its enactment, that it'will relieve this court from any difficulty in its application to the case before us. In the. case of Bemis v. Becker and others (1 Kan., 248), this court held:\\nWhere one state adopts a law from another, the judicial construction given to the statute in the state where it originated, follows it to the state of its adoption. This well known principle stands upon the ground that the legislature of the state is presumed, in adopting the law, to take it with the construction pre viously placed upon it, and such will he considered the legislative intent, unless the language of the law manifestly indicates another construction. There is no such trouble with the case under consideration.\\nOne of the conditions pointed out in the first section is: being in possession of, and holding any land under any sale for taxes authorized by the laws of the state, entitle the occupant to the benefit of the provisions of the statute, if his possession has been obtained without fraud or collusion.\\nIt will be seen that in this section it is only made' necessary that the occupant holds under any sale for taxes; but lest it should be contended, as it was in this case, that no sale was perfected until the deed was made, thus leaving property unimproved and unproductive for two years, it is further provided in section two, which is a legislative construction of section one, that if the claimant holds a certificate of sale of the lands from a collector of taxes, or county treasurer, &c., he shall be deemed to have sufficient title to said land to demand the value of improvements made under provisions of the first section.\\nNow, the plaintiffs in error had such certificate at the time they made the improvements for which they demand compensation, and that, by the obvious terms of the law, entitled them to its benefits; but the defendants in error object that the tax certificate was void, because it was declared so by the court. The findings do not show for what cause the court declared it void. It was declared in proceedings duly had, wherein these defendants were plaintiffs and the claimants were defendants. Why was such a suit brought ? The defendants in error are men learned in the law, and it would seem that they had some idea that there was some show of title in the tax certificate, or they would not have sought to set it aside. The decision of the court in that case was, that the tax certificate should be held null and void. We are to presume that that judgment was right. It only imports, however, that for some cause, henceforth they are so held. And the experience of other states has shown that most titles held in that way would, upon proper proceedings had, be likewise declared void. Such a conclusion must be reached in some way, before the unsuccessful party can 'claim the benefit of the occupying claimant law. If the tax title was good, then the claimant under it would hold the property in litigation. A defective title only will enable a party to claim. The defendants in error preferred to test each claim of the plaintiffs in error, separately. They set aside the judgment in one suit, the tax certificate and title in another, and the right of possession was determined by a third. They take nothing by this. The law does not favor a multiplicity of suits. The case here is, as to this claim, as though but one suit had been brought, and the tax title held an insufficient defense. Then, nothing further appearing, the claimants were clearly entitled to the benefits of the law, both by its plain language, its manifest objects, and a long train of decisions in the state from whose statutes we adopted it. But it is further urged that, till the expiration of two years, no title is acquired, and therefore no rights can attach save that of a right to a deed, if the property is not redeemed. This is \\u00e1 misconception of the law. The purchaser at a tax sale buys the property then, becomes the owner then, the title only being defeasible by redemption for two years. But if we are wrong in this, the law we are considering makes the tax certificate such a title as authorizes one holding under it to make improvements, and, if evicted, to get pay for them.\\nAgain, it is said the tax certificate was void on its face, and so put the holder on his guard that he could not, in good faith, make any improvements thereunder ; that the description was so vague and uncertain that it ought, at once, to have impressed the conviction on the mind of the buyer that it was void for uncertainty. And yet the counsel, who insists that the holder should perceive its worthlessness from its face, made an elaborate argument to this court, and cited many authorities, to show that it was void upon its face. Now, we have already said that it must be' held in some way or other to be void, before a case can be made where the claimant can even ask the benefit of this act. But here the counsel insists that it was so apparently worthless on its face, that to make improvements under it showed a fraudulent purpose on the part of parties unlearned in the law. We might well pi ace the counsel's acts, against his arguments. A defect so patent that not to notice it is evidence of fraud \\u2014 proof of a purpose to commit a flagrant trespass when out of court \\u2014 might well have been left to the decision of the court without extended argument, if the counsel's convictions on that point had been as strong as his assertions. By our view of the law of this case, it is unnecessary to decide whether the description in the tax certificate was sufficient or not. We only find it necessary to say that it was not so defective as would make the holder of it guilty of fraud by pretending to hold under it and making improvements on his holding. . While the writer of this opinion has no doubt on this matter, he purposely leaves his views unexpressed, so that the uncertainty of each lawyer, who has not given the subject a care ful examination, may \\\"be our reason, for holding that the point is not well taken in this case.\\nBut whatever defect may have existed in the description of the property, \\\"by abbreviations in the tax certificate, or whether the certificate was evidence of ownership or not, still, when the case was tried, the defendant was in possession, under a tax deed, describing the land fully; and this was sufficient to authorize the parties to claim the benefit of the law.\\nIn the case of the Lessees of Davis v. Powell (13 0., 320), the court held that a defendant, holding possession under claim of title, will be allowed, under the occupying claimants law, as well for improvements made by him before his title commenced, as for those made after; and the learned judge, who delivered the opinion, very justly observed:\\n\\u00a3 \\u00a3 The equity of the statute embraces all improvements made in the honest belief of ownership, if at the time of rendition of judgment, the occupant is in possession under such title as brings him within the meaning of the statute. If such a state of facts exists as to call the statute into action, it never stops until it has worked out complete equity and justice, and embraced the en- tire improvement, beneficial to the successful claimant, and honestly made. Any other construction would permit an honest purchaser of land, buying from one without color of title, who sells from mistaken belief of ownership, to be swept out of the hard toil of years, expended in improv\\u00e9ments made' for the provision of Ms family or the repose of age. The statute is to be construed, whenever a case comes within its letter, that the person receiving the benefits and advantages of improvements shall make compensation. It rests on the broadest equity, and may justly claim a liberal construction.\\\"\\nIn the case of the Lessees of Shuler v. Majin (2 O. JR., 236), the same doctrine is held. Apply these principles to this case, and the tax deed alone would have been enough to justify the plaintiffs in error in claiming the benefit of the act. So that their claim, under the tax certificate \\u2014 which they held when the improvements were made \\u2014 or under the tax deed, was good, and should have been allowed by the court.\\nWe do not refer to the numerous cases decided in Ohio, for they are found in almost every volume of the reports, and are not only accepted as constructions of our statute previous to our adoption of it, but also as fair and just applications of the provisions of the statute to the purposes for which it was enacted. We have examined with care the numerous decisions to which we were referred by the counsel for the defendant in error, but they are in explanation of statutes so wholly unlike ours, and so much more limited in their scope and application, as to throw little or no light upon the act we are considering.\\nBesides the main question which we have examined, the defendants in error claim there are other points which will preclude the plaintiffs in error from having the benefit of this act.\\n1. It is insisted that they made their claim at the wrong time. The claim was first made in a supplemental answer to a supplemental petition, a short time previous to the trial; and it seems, from the findings of the court below, was persisted in all through the proceedings, and is again insisted on here. We think the objection not well taken.\\n2. It is urged that there were no witnesses to the tax deed. We do not think, where a deed is acknowledged, any witnesses are necessary; hut if it were otherwise, of what avail would it be % It would show a defective title, and it is only under such that the provisions of this act apply.\\nAgain, it is urged that the findings of the court do not show good faith on the part of Stebbins & Porter. To this we answer, that the statute requires that the holding of the claimant should be without fraud or collusion. Now, in the absence of any finding or any fact showing fraud, the presumption is, none existed ; but as we followed the counsel beyond the facts found to the testimony in the case, we -were strongly impressed that, instead of fraud or collusion, the contrary appeared.\\nThe judgment of the court below is reversed, and the cause remanded for further proceedings.\\nAll the justices concurring.\"}"
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+"{\"id\": \"478972\", \"name\": \"Wilbert H. Fuller, doing business as The Fuller Real Estate Exchange, Appellant, v. Charles A. Preston and Lillian B. Preston, Appellees\", \"name_abbreviation\": \"Fuller v. Preston\", \"decision_date\": \"1920-07-10\", \"docket_number\": \"No. 22,584\", \"first_page\": 250, \"last_page\": \"258\", \"citations\": \"107 Kan. 250\", \"volume\": \"107\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:11:56.662813+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wilbert H. Fuller, doing business as The Fuller Real Estate Exchange, Appellant, v. Charles A. Preston and Lillian B. Preston, Appellees.\", \"head_matter\": \"No. 22,584.\\nWilbert H. Fuller, doing business as The Fuller Real Estate Exchange, Appellant, v. Charles A. Preston and Lillian B. Preston, Appellees.\\nSYLLABUS BY THE COURT.\\n1. Real-estate Agent \\u2014 Purchaser Produced \\u2014 \\u201cOption Contract\\u201d Entered Into \\u2014 Right to Commissions. Where a broker who has been employed to find a purchaser for real estate produces a prospect with whom the owner enters into a contract which otherwise would amount to one for a sale, its character as such is not necessarily lost, and the right to a commission defeated, by the mere fact that it reserves to the proposed buyer the right to decline to complete the purchase, the owner in that event to retain part payments already made.\\n2. Same \\u2014 \\u201cOption Contract\\u2019\\u2019 Between Landowner and Purchaser Constituted a Sale. The evidence is held to show prima facie that a written contract entered into by the owner of real property and a prospective buyer was one for a sale, notwithstanding it described itself as an option agreement, contained no promise on the part of the' prospective buyer to complete the purchase, and enabled him after an occupancy of three years to escape further liability by turning back the property, the owner to retain all payments that had been made. Among other circumstances regarded as justifying this view are these: The contract included an assumption by the buyer (unqualified unless by inference) of an existing mortgage, and of the payment of taxes and insurance; this mortgage was given to raise money to erect a building suitable to the buyer\\u2019s needs; the\\u2019 buyer took possession, installed expensive machinery, and kept up the payments at least until the time of the trial, such payments being considerably in excess of the rental value.\\n3. Same \\u2014 Amount on Which Commissions Should Be Based. Where property is listed with a real-estate broker for sale for a stated amount, which includes an existing mortgage, the commission, unless for some special reason to the contrary, should be based on a sale for that amount. But where, in order to promote the sale, money for improving the property is raised by a mortgage executed by the owner and gurante'ed by the buyer, who assumes its payment, the commission should not be increased on that account unless an agreement to that effect may be implied from other circumstances.\\nAppeal from Sedgwick district court, division No. 1; Richard E. Bird, judge.\\nOpinion filed July 10, 1920.\\nReversed.\\nO. A. Reach, of Wichita, for the appellant.\\nE. L. Foulke, of Wichita, for the appellees.\", \"word_count\": \"3622\", \"char_count\": \"21221\", \"text\": \"The opinion of the court was delivered by\\nMason, J.:\\nWilbert H. Fuller sued Charles A. and Lillian B. Preston for a real-estate broker's commission of $325.87, claimed to have been earned by his having found them a purchaser for property listed with him for that purpose. A demurrer to his evidence was sustained, and he appeals. It was sufficiently shown that he was employed to find a buyer and that through his procurement negotiations were entered into between the defendants and the Coca-Cola Bottling Company, a corporation, which culminated in a written agreement in relation to the property. The vital controversy is whether the contract was one for a sale, as contended by the plaintiff, or was a mere grant to the corporation of an option to purchase, coupled with a lease for not more than three years, as the defendants assert.\\nThe defendants suggest that the plaintiff did not try to negotiate a sale \\u2014 that his efforts were directed wholly to the leasing of the property. Some of the evidence perhaps had a tendency to sustain this view. But although no testimony was introduced except in behalf of the plaintiff he was not absolutely bound by any of it excepting that of the agent who represented him in the transaction. This agent testified that the secretary of the corporation first talked with him about buying the property; that \\\"the negotiations were dependent upon his buying the property. They were not leasing the property then. . . . About the second or third conversation between him [the secretary] and the witness they talked about buying defendants' property.\\\" It appeared that in order to render the premises suitable for the use of the corporation a considerable sum would have to be expended in completing a building thereon. The abstract shows this evidence of the plaintiff's agent:\\n\\\"The witness talked with the Coca-Cola Bottling Company about the $12,500.00 price as a price that they would be willing to pay, provided they could get satisfactory terms for payment, and they said the price would be satisfactory, provided the building was finished to meet their requirements and suitable terms [for payment] could be arranged.\\n\\\"Mr. Jeffords [the secretary] stated in this connection that they were not in position at that time to pay a suitable amount of cash nor would they be for several years; that they were putting in a large amount of machinery in the building, which would take a lot of money to clear up, and they could only meet good, substantial monthly payments and the final payment at the end of three or four years. The amount of this final payment would be dependent entirely on the amount of the loan obtained. Actual figures could not be given by Mr. Jeffords because the loan might eventually be $6,500.00 or $7,500.00, or might be $8,500.00.\\\"\\nTo take care of an existing mortgage of $1,000 and to pro- vide- a fund for completing the building referred to, the defendants borrowed $8,325 from a building and loan association, which was used for that purpose, the Coca-Cola company guaranteeing the payment of the note. The defendants executed a warranty deed for the property to the Coca-Cola company and deposited it with the building and loan association together with the written contract already referred to, the deed to be delivered upon the payment of the $3,500 mentioned in the contract, which read as follows:\\n\\\"option agreement.\\n\\\"Lillian B. Preston & Wf. to Coca-Cola Bottling Company.\\n\\\"For and in consideration of the sum of three hundred and no-100 dollars ($300.00) to us paid, receipt of which is hereby acknowledged, we Lillian B. Preston and Charles A. Preston, wife and husband, hereby grant unto the Coca-Cola Bottling Company, of Wichita, Kansas, a corporation organized and existing under the laws of said state, an option to purchase the following described real estate situated in Sedgwick county, state of Kansas, to wit: Lots ten and twelve on Washington avenue, in Block \\\"B\\\" English's Subdivision to the city of Wichita, upon the following terms: Thirty-five hundred dollars ($3,500) in cash, on or before the first day of May, A. d. 1921, together with interest thereon at the rate of six per cent per annum from this date and the payment of all taxes and insurance on said premises as the same mature.\\n\\\"If the said sum of thirty-five hundred dollars ($3,500) together with interest, taxes and insurance, as aforesaid, is paid by said, The Coca-Cola Bottling Co., Inc., of Wichita, Kansas, the undersigned will deliver to the said The Coca-Cola Bottling Company a warranty deed to said property, properly executed, furnishing at that time an abstract showing good merchantable title except as herein provided, which deed shall be executed as of this date, by the undersigned, and deposited with this contract in escrow in The' The Wichita Perpetual Building and Loan Association to be delivered to said The Coca-Cola Bottling Company, upon the payment of said thirty-five hundred dollars as aforesaid.\\n\\\"It is expressly understood and agreed that time is the essence of this option, and should the said The Coca-Cola Bottling Company fail for the period of sixty (60) days to comply with the terms of this option at-the time and in the manner specified herein, then said option shall cease and determine.\\n\\\"It is expressly understood, as a part of this Option Agreement and coincident thereto, that said Lillian B. Preston and husband are to borrow the sum of eight thousand two hundred thirty-five dollars ($8,235) from The Wichita Perpetual Building and Loan Association, of Wichita, Kansas, on a mortgage to be executed by them against said premises, one thousand dollars of the same to be used to retire an existing mortgage against said premises in favor of one W. H. Good, and the balance to be used in completing improvements on said property in accordance with the present agreement of the parties hereto, according to plans and specifications drawn up by J. R. Rutledge, architect and builder, Wichita, Kansas, said improvements to cost the sum of seven thousand two hundred thirty-five dollars ($7,235).\\n\\\"It is further agreed by said The Coca-Cola Bottling Company that it shall assume and pay all payments due to The Wichita Perpetual Building and Loan Association for said moneys borrowed from said Association by said grantors, for the purpose above provided, and when such payments with dividends and interest thereon aggregate the sum of eight thousand two hundred thirty-five dollars ($8,235) the said Lillian B. Preston hereby agrees that same shall be credited on said mortgage to The Wichita Perpetual Building and Loan Association and that said mortgage is thereupon to be released of record leaving title to said premises in The Coca-Cola Bottling Company, Inc., of Wichita, Kansas.\\n\\\"Insurance shall be so made as to protect the interests of the parties hereto.\\n\\\"Dated this 1st day of March, A. D. 1918.\\\"\\nThe Coca-Cola company took possession of the property, installed expensive machinery in the building, and at the time of the trial, March 31, 1919, had made all the payments on the mortgage as they matured.\\n1. The defendants rely upon the rule laid down in many decisions that a commission for finding a purchaser for property on certain terms is not earned by the broker's production of a customer with whom the owner enters into a contract giving an option to buy it on such terms (Aigler v. Land Co., 51 Kan. 718, 33 Pac. 593), even where part payments are made which are to be retained by the owner in case the customer concludes not to buy. (4 R. C. L. 315, 9 C. J. 604, note 72 and corresponding text; James in Option Contracts, \\u00a7 105. See, also, 9 C. J. 576, note 23.) To this general doctrine we take no exception, but we think some qualification is required to the statement that has sometimes been made in the course of discussions of the subject, to the effect that a contract cannot be regarded as one for a sale, as distinguished from an option, unless the owner can absolutely require the proposed buyer to take the property, or at all events to pay for it in full. While \\u00e1 plausible argument can be made in support of the literal and technical accuracy of that test, we do not think that as a practical matter it should be accepted as infallible. If a broker is employed to find a purchaser for property and produces a prospect with whom the owner enters into a contract which otherwise would amount to one for a sale, it is the view of this court that his right to his full commission would not necessarily be defeated by th\\u00e9 mere fact that there is reserved to the proposed buyer the privilege to decline to complete the purchase, the owner in that event to be compensated by the retention of the portion of the purchase price already paid. This view was announced and applied in Davis v. Roseberry, 95 Kan. 411, 148 Pac. 629.\\n2. We regard the reasoning of that decision as requiring us to hold that the contract now under consideration was such as to entitle the plaintiff to his commission. On its face\\u2014 with respect to its phraseology\\u2014 that contract lent itself more readily than this to interpretation as an agreement for a sale, but here there are a number of special circumstances favoring such construction. The fact that in the title and body of the contract it is described as an agreement for an option might in a doubtful case be of some aid in its interpretation, but is not conclusive as to its real nature, which must be determined by the character of the legal rights of the parties which result from their entering into it. The record of the proceedings of a meeting of the directors of the Coca-Cola company on February 20, 1918, included an entry as follows:\\n\\\"Thereupon the meeting was advised that the officers of the company-had entered into negotiations with Charles A. Preston for the erection and purchasing of property for the use of the company; and that suitable property could be purchased upon payments of approximately one hundred ($140) dollars per month, such payments to be arranged by the guaranteeing to the Wichita Perpetual Building and Loan Association of a mortgage on this property in the sum of eight thousand two hundred thirty-five ($8,235) dollars, it being understood that this amount would take care of the cost of the improvements upon the property, and the price which would be paid for the lots could be taken care of by an option contract due in about twenty-seven (27) months. After due consideration the following resolution was unanimously-adopted:\\n\\\"Resolved, That the Officers of the Company are hereby authorized and directed to enter into a contract -with Chas. A. Preston and wife for the purchase of the property described as lots 10 and 12 on South Washington avenue, English's Subdivision of the city of Wichita, Kansas. As a part of the plan of purchase, the Officers of the Company are hereby authorized and directed to guarantee the payment of the first mortgage in the amount of eight thousand two hundred thirty-five ($8,235) dollars which is to be placed against the above-described property, the terms of such guarantee and the manner of the carrying out of the same to be in such form as the Wichita Perpetual Building and Loan Association requires.\\n\\\"The officers of the company for the protection of this company are to obtain an option contract with the said Charles A. Preston and his wife, Lillian B. Preston, by which- the company is to have the right to obtain title to this property subject to this first mortgage by the payment of the sum of thirty-five hundred ($3,500) dollars with interest at 6% payable any time within twenty-seven months from the' date of the execution of the contract.\\\"\\nOf course the language authorizing a purchase is not controlling, but it gives room for an inference that the word \\\"option\\\" was used as a convenient term to signify a reservation by the company of the privilege of declining to complete the purchase after the contract had been partly carried out.\\nThe hypothesis that the contract was regarded as one for a sale, with the reservation of a right in. the buyer to decline to complet\\u00e9 it, finds further support in its provisions that the company should \\\"assume and pay all payments due to the building and loan association,\\\" this not being limited to the three-year period or conditional upon the exercise of the so-called option to buy, and that \\\"when such payments with dividends and interest thereon aggregate the sum of eight thousand two hundred thirty-five dollars ($8,235) the said Lillian B. Preston hereby agrees that same shall be credited on said mortgage to the Wichita Perpetual Building and Loan Association, and that said mortgage is thereupon to be released of record leaving title to said premises in the Coca-Cola Bottling Company, Inc., of Wichita, Kansas.\\\"\\nThe defendants advance the theory that the payments on the building and loan company's mortgage must be regarded as rent. This is untenable because there was evidence that when a lease had been under discussion a rental of $90 a month had been agreed upon, while the payments on the mortgage amounted to $31.85 a week \\u2014 a difference too large to be disregarded.\\nThe contract requires some interpretation. It does not expressly refer to an occupancy of the property by the Coca-Cola company prior to the delivery of the deed, but that was obviously contemplated. Although the agreement of the company to make payments to the building and loan association until the mortgage was satisfied was not in terms restricted, there is room to imply that if at the end of three years it elected to surrender the property it would be released from further liability, and would have no claim for the return of any money; that will be assumed to be the meaning. The evidence then was sufficient to warrant a finding that the contract amounted to this: The company was to occupy the property for three years, paying in that time $31.85 a week, in all $4,965.60, or $1,725.60 more than the rent would be worth. It was also to pay the taxes and insurance. At any time within the three years it could obtain the deed by paying $3,500, remaining responsible for the mortgage. At the end of that period it could if it saw fit relieve itself of further liability by vacating the property, thereby losing what it had put into it in excess of the value of the rent. We- regard such a contract as essentially similar to that passed upon in Davis v. Roseberry, 95 Kan. 411, 148 Pac. 629, already cited. There the prospective buyer formally agreed to take the property at the stated price, but with a distinct reservation of the right to be released from this obligation by forfeiting the sum of $500 which he had deposited as a part payment. This proviso was characterized as an attempt to liquidate the owner's damages in case the buyer should not complete the purchase \\u2014 an agreement in advance as to the equivalent he was willing to accept. Inasmuch as the assumption of the obligation to buy, and the right to be relieved thereof by sacrificing the $500 paid, were contained in the same instrument, there was no actual breach of the contract \\u2014 the buyer in effect bound himself to do one or the other of two things which the owner had agreed to treat as of equal value \\u2014 complete the payment of the stipulated price, or forfeit what he had already paid. In the present case the buyer was likewise bound to do one of two things within three years \\u2014 either complete the purchase of the property by paying $3,500, or lose all that he had put into it in excess of rent, such loss including about $575 a year besides taxes and interest. There were here present, moreover, the circumstances, to which reference has already been made \\u2014 the change of possession, the installation of machinery, the payment of taxes and insurance, the purposes of the buyer as expressed in its record \\u2014 indicating that the transaction for practical purposes constituted a sale on time with a right in the buyer to be relieved from further liability by turning the property back.\\nIn an elaborate note entitled \\\"Instrument for purchase of land as a contract or an option\\\" (3 A. L. R. 576) the difficulty of classifying every agreement according to some hard and fast rule is recognized in these words:\\n\\\"Although the distinguishing characteristics of contracts for the sale of land, and contracts creating merely an option to purchase, are well known, it is unfortunately true that in a great number of cases there are no earmarks by which the type of contract can be immediately recognized, and the presence of such characteristics cannot be definitely determined until the contract has received judicial construction.\\\"\\nOf the many cases collected and classified in the note few seem based upon facts sufficiently like those here involved to make their citation desirable. In Moss & Raley v. Wren, 102 Texas 567, rehearing 569, the court reached a conclusion contrary to that arrived at in the Kansas case already discussed\\u2014 Davis v. Roseberry, 95 Kan. 411, 148 Pac. 629. Wright v. Suydam, 72 Wash. 587, contains language tending to support the views expressed in the Davis-Roseberry case, but there the controversy was not whether an agent was entitled to a commission, but whether the vendee could enforce specific performance.\\n3. The amount of the plaintiff's compensation under the evidence was to be (in accordance with custom) 5 per cent of the first $1,000 of the price and 2% on the remainder. He asks a recovery on the basis of a sale for $12,035. His evidence was that the property was placed in his hands for sale for $4,500, which price included the $1,000 mortgage. It is said that \\\"commissions must be estimated on the whole value of the property without regard to incumbrances, in the absence of a specific agreement to the contrary.\\\" (9 C. J. 582.) Whether or not that rule is accepted, we think the commission should be computed on $4,500. The listing here appears to have been for a sale of the property clear, for that amount, and not for its sale for $3,500, subject to the $1,000 mortgage. We regard the sale contracted for as one substantially for $4,500, the old mortgage having been paid off out of the proceeds of the new one. We do not think, however, the building and loan mortgage (in excess of the thousand dollars) should be included in the amount on which a commission should be computed. That mortgage was given as a part of the means by which the sale was to be effected \\u2014 it was for the benefit of the purchasing company rather than of the seller, except as it helped to promote the sale.\\nThe judgment is reversed, and the cause is remanded for further proceedings in accordance herewith.\"}"
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+"{\"id\": \"493455\", \"name\": \"J. M. Burns, Appellee, v. The Providence-Washington Insurance Company, Appellant\", \"name_abbreviation\": \"Burns v. Providence-Washington Insurance\", \"decision_date\": \"1932-07-09\", \"docket_number\": \"No. 30,706\", \"first_page\": 152, \"last_page\": \"155\", \"citations\": \"136 Kan. 152\", \"volume\": \"136\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:36:45.886764+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. M. Burns, Appellee, v. The Providence-Washington Insurance Company, Appellant.\", \"head_matter\": \"No. 30,706.\\nJ. M. Burns, Appellee, v. The Providence-Washington Insurance Company, Appellant.\\n(12 P. 2d 811.)\\nOpinion filed July 9, 1932.\\nH. \\u00d3. Trinhle, of Garden City, for the appellant.\\nEdgar Foster and Horace J. Foster, both of Garden City, for the appellee.\", \"word_count\": \"1135\", \"char_count\": \"6546\", \"text\": \"The opinion of the court was delivered by\\nSloan, J.:\\nThis was an action to recover on a hail insurance policy. The plaintiff prevailed, and the defendant appeals.\\nThe plaintiff was the owner of a quarter section of land in Stanton county which was farmed to wheat by his tenant. He had an undivided one-fourth interest in the wheat which he desired to insure, and, on June 14, 1928, applied to the local agent of the defendant for insurance against loss or damage by hail. On that day there had been a heavy rain in that vicinity and hail in some localities. The plaintiff did not know whether hail had damaged his wheat or not and so advised the local agent. The application for the insurance was signed in blank with the understanding that the local agent would go and examine the crop and determine whether it had been hailed, and if not would complete the application. The agent examined the wheat and concluded that it had not been damaged by hail. He thereupon completed the application and mailed it to the company with the premium, amounting to $115.20. In due time the plaintiff received the insurance policy, but was not otherwise informed of the result of the inspection made by the local agent. On June 19, 1928, the crop was destroyed by hail. The plaintiff notified the local agent, who in turn notified the company, and an adjuster came to examine the crop. It was then discovered that the wheat had been damaged by hail on June 14; that plaintiff's tenant, who owned an undivided three-fourths interest in the crop, collected insurance from the Springfield Fire and Marine Insurance Company on the basis of a six per cent loss. The adjuster refused to make any adjustment of plaintiff's loss unless the plaintiff executed a nonwaiver agreement. The agreement was executed and adjustment made, but defendant denied liability. The case was tried by the court without the aid of a jury. The court found that proof of loss was prepared and forwarded by mail to the insured within sixty days after the loss occurred; that the agent of the company did not act upon the statement of the insured to the effect that there had been no prior loss, but refused to take the application until he had made a personal investigation, and upon such investigation issued the policy, and that the plaintiff had suffered a loss in the amount of $451.20. The court entered judgment for this amount, together with an attorney fee of $100, and costs.\\nThe appellant contends that the court erred in rendering judgment for the reason that the local agent had' no authority to examine the wheat and accept the application on such examination. The application for the insurance signed by the appellant contained the definite statement that the crop had not been damaged by hail previous to the date of the application. It contained the further condition that the entire policy should be void if the insured had concealed or misrepresented any material fact. It provided that the company would not be bound by any act or statement made by the agent unless inserted in the application. It also provided that the insured would, within sixty days after the happening of the loss or damage, send to the company by registered mail at Minneapolis, Minn., proof of loss which should be signed and sworn to by the insured. There is no charge nor proof of any fraudulent intent or purpose on the part of the insured. The parties appear to have acted in good faith. When the insured signed the application he did not know the condition of the wheat and so advised the agent. The agent assumed the responsibility of examining the crop and upon such examination accepted the application and the premium. The agent was the agent of the company and not the agent of the insured, and while acting in the scope of his authority the appellant is charged with all the knowledge which the agent possessed. He was authorized to solicit applications for hail insurance. He knew, and so did the insured, that the company did not write such insurance on damaged crops. The agent might have relied upon the written .application and held the appellee responsible for the statements contained therein, but he elected otherwise and investigated the condition of the wheat to determine the fact, and on this investigation accepted the application and .the premium. The company is charged with the knowledge the agent acquired in the investigation, and it cannot now be heard to say that it relied on the statements contained in the written application and defeat liability.\\n\\\"The company cannot defend on the ground that the policy was void at its inception if it had knowledge of the facts when it executed the contract and took the premium. On general principles, a knowledge which would be sufficient to lead any prudent person to inquire about the matter, when it could easily be ascertained, ought to be regarded as a knowledge of the fact. And where the agent had knowledge of the existence of facts which would render the contract void in its inception, if its provisions were insisted upon, it would be presumed that such provisions were waived, because the courts will not impute to the company the fraudulent intent to deliver and receive pay for an invalid policy. Upon this ground the agent's knowledge of the fact that the property is vacant, or that there is concurrent insurance, encumbrances, or his knowledge of facts relating to the ownership of the property, are regarded as knowledge of the company. See extended note on the effect of warranty, 16 L. R. A., n. s., 1213-1222.\\\" (Stanley v. Indemnity Association, 112 Kan. 412, 416, 210 Pac. 1096.)\\nSee, also, Cue v. Insurance Co., 89 Kan. 90, 130 Pac. 664; Palin v. Insurance Co., 92 Kan. 401, 140 Pac. 886; Nichols v. Casualty Co., 113 Kan. 484, 214 Pac. 1111.\\nThe appellant further contends that notice was not sent to the company in accordance with the terms of the policy. The evidence of the witness is to the effect that to the best of his knowledge the proof of loss was mailed to the company. The company appeared and made the adjustment, and, from all of the circumstances in the case, we think the court was fully warranted in finding that the appellee complied with the terms of the policy in mailing the proof of loss.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"493531\", \"name\": \"D. E. Moore, Appellee, v. The Wichita Yellow Cab Company, Appellant\", \"name_abbreviation\": \"Moore v. Wichita Yellow Cab Co.\", \"decision_date\": \"1932-07-09\", \"docket_number\": \"No. 30,686\", \"first_page\": 99, \"last_page\": \"104\", \"citations\": \"136 Kan. 99\", \"volume\": \"136\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:36:45.886764+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"D. E. Moore, Appellee, v. The Wichita Yellow Cab Company, Appellant.\", \"head_matter\": \"No. 30,686.\\nD. E. Moore, Appellee, v. The Wichita Yellow Cab Company, Appellant.\\n(12 P. 2d 736.)\\nOpinion filed July 9, 1932.\\nArnold C. Todd, James G. Norton, Carl O. Bauman and Julian E. Ralston, all of Wichita, for the appellant.\\nL. P. Brooks, L. A. Hasty and James B. Nash, all of Wichita, for the appellee.\", \"word_count\": \"2315\", \"char_count\": \"12994\", \"text\": \"The opinion of the court was delivered by\\nJohnston, C. J.;\\nThis was an action by D. E. Moore to recover damages from the Wichita Yellow Cab Company for personal injuries caused by the alleged negligence of the defendant when it ran a cab upon him on a street of Wichita, which runs under elevated railroad tracks. He recovered damages in the sum of $2,950, and defendant appeals.\\nPlaintiff, aged about sixty-four years, left his place of business about eight o'clock in the evening and started to a place under the viaduct to board a street car in order to reach his home. When he entered under the viaduct he stopped for a moment waiting for the passing of street cars and vehicles. The place was near the union station in a congested part of the city. In this subway there were walks on each side for pedestrians, a section in the center of the street was devoted to the use of street cars, and on each side of the center section and between it and the sidewalks ways were devoted to the use of motor and other vehicles, and there were two or three places in the subway where the street cars stopped to take on or discharge passengers. After watching for a break in the traffic plaintiff undertook to pass from the point of entrance across the traffic way, about twenty-five feet wide, to a place where he could board the street car. When he was about two-thirds of the distance across the traffic way the yellow cab came along, at a speed of twenty miles or more an hour, and struck the plaintiff, throwing him ten feet along the pavement and causing the injuries of which he complained.\\nIt was found that the defendant's negligence consisted in the, careless operation of the taxicab; that is, a violation of a city ordinance and the failure to take proper precautions in driving in the subway, and also that the driver immediately before the accident could have come to a stop before reaching the point opposite the street-car landing or have fallen into the line of traffic more to the right, and thus have avoided the accident. Special interrogatories were submitted to the jury and answered as follows:\\n\\\"1. Did the plaintiff as and at the time he started across the street, on the occasion in question, make a vigilant use of all his senses as far as there was opportunity to ascertain whether there was any present danger in crossing said street or whether any automobiles were approaching from the east? A. Yes.\\n\\\"2. How far could the plaintiff in the place where he was crossing the street have seen the taxicab of the defendant as it was approaching the entrance to the subway? A. Considering the traffic towards the east as a barrier to his vision, he could have seen approximately sixty-six' feet.\\n\\\"3. How far was the defendant's taxicab from the place where the plaintiff was crossing the street at the time the plaintiff started across the street? A. We have no evidence as to the location of taxicab at the time when the plaintiff started across street.\\n\\\"4. Was the plaintiff negligent in any manner in crossing the street on the occasion in question? A. No.\\n\\\"5. If you answer the foregoing question in the affirmative, then state the act or acts of negligence committed by the plaintiff. A. -\\n\\\"6. If you answer the foregoing question in the affirmative, then state whether or not such negligence on the part of the plaintiff in anywise contributed to the accident. A. -\\n\\\"7. How fast was the taxicab of the defendant being driven as it entered the subway in question? A. In our judgment, twenty miles or more.\\n\\\"8. How fast was it being driven at or immediately prior to the collision or accident in question? A. In our judgment, fifteen miles at least.\\n\\\"9. Was L. L. Cox, the driver of the defendant's taxicab, negligent in the operation of said cab at or immediately prior to the time of the accident in question? A. Yes.\\n\\\"10. If you answer the question immediately preceding in the affirmative, then state in detail the act or acts of negligence committed by the said Cox. A. Violated city ordinance. He did not take proper precaution before entering viaduct.\\n\\\"10%. If you answer the foregoing question in the affirmative, then state whether or not such negligence on the part of the defendant in anywise contributed to the accident, or was the proximate cause -thereof. A. It was.\\n\\\"11. What, if anything, did L. L. Cox do, at or immediately following the time he discovered plaintiff was proceeding into the path of the taxicab, to avoid colliding with plaintiff? A. He slowed up somewhat.\\n\\\"12. What, if anything, could L. L. Cox, driver of the defendant's taxicab, have done that he did not do immediately prior to the accident to have avoided the accident? A. He could have come to a stop just before reaching a point opposite street-car landing or falling in line of traffic more to the right.\\n\\\"13. Had plaintiff suffered from any ailment or impairment prior to May 3, 1930? A. So far as evidence shows he suffered no pain or inconvenience that would incapacitate him from work prior to May 3; 1930. Evidence also shows that he did have an ailment prior to May 3, 1930, but such ailment did not affect his work.\\n\\\"14. If you answer the question immediately preceding in the affirmative, then state the particular ailment or impairments from which he had suffered. A. Arthritis.\\n\\\"15. State in detail the actual, if any, injury which plaintiff suffered as the result of the accident in question. A. Evidence shows that the plaintiff was struck a blow by a yellow taxicab, which threw him to the pavement, injuring his back to such an extent that he could not get about for three months, and still is not able to get about for any continued length of time.\\\"\\nDefendant is contending that the negligence was not established, that the collision was a result of plaintiff's contributory negligence, that the special questions were not fairly answered, that the court should have required more definite answers than were returned, that there was error in the instructions and that the verdict is excessive.\\nAs to defendant's negligence in operating the car there is some conflict in the evidence, but a reading of it, including an examination of the exhibits showing the plan of the subway, leaves no doubt that there is evidence to support the finding of the jury as to defendant's negligence. It is unnecessary to set forth in detail and to analyze the volume of evidence contained in the abstracts. It appears to be abundant, under the rules which obtain here in an appeal, to uphold the findings of the jury. The driver of the taxicab testified that he was driving slowly at the time of the accident, only seven or eight miles an hour; that he saw plaintiff in the middle of the traffic way when he was about sixty feet away from him, and although he says he retarded the speed of his cab, he ran upon the plaintiff. Other witnesses said he was running at a speed of twenty to twenty-five miles an hour through the congested place. The traffic way was about twenty-five feet wide and the driver failed to fall into the line of traffic, but turned out and drove fast through the narrow way. He did slow down just before he struck plaintiff, but, as the jury found, was then going at a speed of fifteen miles or more, and the jury found upon evidence that he could have avoided the accident by moving to the right in the line of traffic.\\nThere is the further contention that plaintiff was guilty of contributory negligence in that he was familiar with the subway, had crossed the traffic way many times, knew that it was a main thoroughfare with street cars and vehicles continually passing both ways, and yet he walked leisurely across the traffic way and got at least two-thirds of the way across before he was struck. It is said that if plaintiff had waited an instant before starting or had hurried across after starting, there would have been no accident. The plaintiff testified that he was observing the situation in the subway when he entered it, that when he came down the concrete steps at the entrance he stopped and looked for street cars and vehicles passing, and as soon as he saw a break in the traffic he started across, thinking that he had plenty of time to cross, and had gotten two-thirds to three-fourths of the way across before he was struck. He first saw the taxicab when it was about sixty feet from him and made an effort to get across and out of the way, but the taxicab was coming at such a speed that he was unable to do so. His testimony as to his stopping and looking for an opportunity to cross, the fast speed of the taxicab and the circumstances of the accident, were substantiated by the testimony of an eyewitness who observed the circumstances of the collision.\\nIt is manifest from the circumstances disclosed in the record that it cannot be held, as a matter of law, that plaintiff was guilty of contributory negligence. That was plainly a question for the jury, and we do not hesitate to hold that there was evidence to sustain the finding of the jury that plaintiff was not negligent, and therefore the finding cannot be disturbed on this appeal.\\nBesides contending that the special findings of the jury are not supported by the evidence, defendant contends that they are mere conclusions, not detailed nor definite enough, and should have been set aside. They have been set forth and appear to be candid and fairly reasonable answers to the questions propounded. This objection, we think, is without merit.\\nComplaint is made of instruction sixteen, wherein the court said:\\n\\\"You are further instructed that, in case you find for the plaintiff, you will fix the amount of his recovery at such sum, not in excess of 12,950, as you think will compensate him in damages for the injury he sustained, and, in arriving at this amount, you are instructed that it is your duty to form an estimate of these damages with reference to the pecuniary injury which resulted or will result to the plaintiff by the injuries sustained by reason of the accident involved in this action; and you may estimate these pecuniary damages from the facts proved, in connection with your own knowledge and experience which you possess in common with the generality of mankind, and it is not necessary that any witness should have testified in this case expressing an opinion as to the amount of such pecuniary loss, for that is a matter which you alone can decide.\\\"\\nIt is suggested that the plaintiff did not offer evidence of his earning capacity, and yet the jury were told that they might find the damages sustained upon their own knowledge and experience which they possess in common with the generality of mankind. It is to be noted that the court did advise the jury that they were to find the pecuniary loss from the facts proven in connection with their general knowledge and experience, and that it devolved upon the jury to determine the amount of damage sustained, if any. We see no material error in the instruction, and, besides, not all of the instructions given are preserved in the record.\\nThe claim of defendant that the award of damages is excessive does not impress the court. In view of the testimony as to the nature and extent of the plaintiff's injuries, the amount allowed, $2,950, does not appear to be out of reason. Plaintiff was thrown a distance of ten feet upon the pavement and was disabled and confined to his room from May 3 to August 9, suffering from injuries in his back and hips, and was unable to do any work until September 15. Even after that time and up to the time of trial he was still suffering pain in his back, sides and hip and could stand on his feet for only a short time. It is said that his condition was due in part to arthritis which affected him and is not wholly attributable to the blow struck by the cab. As sometimes happens, the medical witnesses called by the several parties did not agree in their testimony. Taking into consideration the proof in behalf of plaintiff, we cannot say the amount allowed shocks the conscience of the court and requires that a remittitur should be made. It is true, the testimony is meager as to the allowance of $50 for medical services. It was shown that the doctor called upon plaintiff from, seven to ten times, but had not rendered a statement of his bill to the plaintiff at the time of the trial. He, therefore, had not paid anything yet for those services, but of course the obligation remains. He did show the number of calls made by the physician, and for this the small allowance of $50 was made. Under the circumstances we think the paucity of proof on this item should not be regarded as a ground for reversal or modification.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"496465\", \"name\": \"In the Matter of the Estate of Leander Wilkes Perkins, Deceased, John Bradford Perkins, Executor, Appellee, v. W. E. Perkins, Appellant\", \"name_abbreviation\": \"Estate of Perkins v. Perkins\", \"decision_date\": \"1937-04-10\", \"docket_number\": \"No. 33,285\", \"first_page\": 611, \"last_page\": \"615\", \"citations\": \"145 Kan. 611\", \"volume\": \"145\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:51:59.904470+00:00\", \"provenance\": \"CAP\", \"judges\": \"Thiele, J., not sitting.\", \"parties\": \"In the Matter of the Estate of Leander Wilkes Perkins, Deceased, John Bradford Perkins, Executor, Appellee, v. W. E. Perkins, Appellant.\", \"head_matter\": \"No. 33,285\\nIn the Matter of the Estate of Leander Wilkes Perkins, Deceased, John Bradford Perkins, Executor, Appellee, v. W. E. Perkins, Appellant.\\n(66 P. 2d 420)\\nOpinion filed April 10, 1937.\\nC. C. Stewart, of Lawrence, for the appellant.\\nR. B. Stevens and John W. Brand, both of Lawrence, for the appellee.\", \"word_count\": \"1677\", \"char_count\": \"9393\", \"text\": \"The opinion of the court was delivered by\\nWedell, J.:\\nThis was an appeal from the probate court to the district court on an order of the former court admitting a will to probate. The appeal was instituted by W. E. Perkins, a brother and heir of Leander Wilkes Perkins, deceased. The appeal was dismissed on a motion of the executor which challenged the jurisdiction of the district court to hear the appeal and on the ground the order admitting the will to probate was not an appealable order. From that ruling W. E. Perkins appeals.\\nThe sole question is whether an order of a probate court admitting a will to probate, in the absence of testimony adverse to probate, is an appealable order. Appellant contends he has two remedies, one by an independent \\\"will contest\\\" action in the district court (G. S. 1935, 22-223), the other by a direct appeal to the district court from- the order admitting the will to probate. Appellee admits the existence of the first remedy, but denies the latter. Whether the latter remedy is available depends upon whether the order admitting the will to probate is a final order. G. S. 1935, 22-1101, enumerates twelve specific cases in which appeals shall be allowed from the probate to the district court. Neither an order refusing probate nor an order admitting probate is embraced in that enumeration. The statute, however, concludes with the comprehensive clause, to wit:\\n\\\"And in all other cases where there shall be a final decision of any matter arising under the jurisdiction of the probate court.\\\"\\nThis statute is in all respects the same as the original statute of 1868 (ch. 37, \\u00a7 188) except that in the original statute there was appended to the above quotation the words, \\\"except in cases of habeas corpus and injunction.\\\"\\nOrders refusing probate or admitting probate, of course, arise under the jurisdiction of the probate court. G. S. 1935, 22-218, provides:\\n\\\"If it shall appear that such will was duly attested and executed, and that the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint, the court shall admit the will to probate.\\\"\\nAn order refusing to admit probate has been held to be a final and appealable order. (Lawrie v. Lawrie, 39 Kan. 480, 18 Pac. 499; Durant v. Durant, 89 Kan. 347, 131 Pac. 613; McCarthy v. Weber, 96 Kan. 415, 418, 151 Pac. 1103.) Under the original statute the probating of a will was. an ex parte proceeding. The application was made and witnesses were called only by the proponents of the will. (G. S. 1868, ch. 117, \\u00a7 12.) By the amend ment of 1905 it was made possible for the probating of a will to become an adversary proceeding. (Laws 1905, ch. 526, \\u00a71; G. S. 1909, \\u00a7 9787.) See, also, McCarthy v. Weber, supra. The present statute, G. S. 1935, 22-213, is the same as the statute of 1905, and provides:\\n\\\"The court shall cause the witnesses to such will and such other witnesses as any person interested for or against having the same admitted to probate may desire to come before such court, and said witnesses shall be examined in open court, and the testimony of the witnesses to such will and such other testimony as the court may order shall be reduced to writing and subscribed by them and filed; and the depositions of witnesses may be taken and used on such hearing in the same manner and to the same extent as is provided in the code of civil procedure.\\\"\\nIn McCarthy v. Weber, supra, in which rebutting testimony was offered, it was said:\\n\\\"A real issue is presented for determination in an application for probate, and in most cases it ends the inquiry as to the validity of the will. The case of Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, is illustrative of the importance and scope of the inquiry in such a proceeding. An appeal may be taken from an order of the probate judge allowing or refusing a probate, but when the appeal is taken from such an order and the issue is retried at length in the district court it is still regarded as a preliminary proceeding, and whether the trial results in the probate of a will or the refusal to probate, it may thereafter be contested in a civil action if brought within three years after the making of the order probating or refusing to probate the will. (G. S. 1909, \\u00a7 9796; Durant v. Durant, 89 Kan. 347, 131 Pac. 613.)\\\" (p. 418.) (Italics inserted.)\\nThe period of contest is now limited to one year. (G. S. 1935, 22-223.) In the case of Hanna v. Hanna, 106 Kan. 40, 186 Pac. 752, there was presented the question of appeal from an order admitting a foreign will to probate. It was held:\\n\\\"An appeal to the district court may be taken from a judgment of a probate court admitting to record an authenticated copy of a foreign will and of the record, in a foreign court, of the probate thereof.\\\" (Syl. \\u00b6 1.)\\nAppellee contends the Hanna case is not applicable on the subject of the right of appeal from an order admitting a domestic will to probate. The contention is based on the fact our statute does not permit the contest of a foreign will in this state, and hence the only remedy the opponent of the foreign will had was that of appeal. This court noted that under our statut\\u00e9 no contest of a foreign will could be had in this state relative to property in this state. (G. S. 1935, 22-255.) However, in discussing the general question of an opponent's right to appeal from an order admitting a will to probate, it was said:\\n\\\"Hugh Hanna argues that the district court committed error in not dismissing the appeal of May Hanna and her associates. In order to properly determine the question presented, it is necessary to examine the statute governing appeals from probate courts, and to examine several decisions of this court. Section 4675 of the General Statutes of 1915, in part, reads:\\n\\\" 'Appeals shall be allowed from the decision of the probate court, to the district court, in the following cases: . . . And in all other cases where there shall be a final decision of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction.'\\n\\\"The language quoted is comprehensive; it includes everything in which a final decision is rendered hy the probate court. The admission of the authenticated copy of the will of Patrick Hanna to record was a final decision. It necessarily follows that an appeal could properly be taken from that decision. This conclusion is supported by the decisions of this court. In Lawrie v. Lawrie, 39 Kan. 480, 18 Pac. 499, this court said, 'An appeal lies to the district court from a decision of the probate court refusing to admit a will to probate.' (Syl. \\u00b6 1.) To the same effect is Durant v. Durant, 89 Kan. 347, 131 Pac. 613. In McCarthy v. Weber, 96 Kan. 415, 418, 151 Pac. 1103, this court said, 'An appeal may be taken from an order of the probate judge allowing or refusing a probate.' \\\" (p. 43.) (Italics inserted.)\\nIn the Durant case, dealing with appeal from an order refusing to admit to probate, it was held the 1907 amendment providing for contests in the district court was merely a cumulative remedy to that authorizing appeals from final decisions in the probate court. We perceive no reason why the same rule does not apply to an order admitting a will to probate.\\nAppellee urges that under the provisions of G. S. 1935, 22-222, an interested person may appear within one year after the order of probate to contest the will, and hence the order is not final until the year has expired. The contention is untenable. The statute makes the same provision for contesting an order refusing to admit to probate. Certainly for the purpose of direct appeal or a contest action the order is final when made, and the right to appeal or to bring an independent contest action is not postponed for a year simply by reason of the fact a year is granted to challenge the order. Were appellee's contention sound, a proponent or contestant of a will would be obliged to delay his protest to the order a full year, and after that it would be too late.\\nAppellee relies upon the decisions in McConnell v. Keir, 76 Kan. 527, 92 Pac. 540, and Evans v. Evans, 109 Kan. 608, 201 Pac. 60. The precise question of whether an order admitting a will to probate is a final and appealable order was not expressly raised in either of those cases.\\nAppellee further contends \\u00bf prima facie showing of the validity of the will under G. S. 1935, 22-218, in the absence of rebutting testimony, as in the instant case, is sufficient to entitle the proponent to an order of probate. That fact does not deprive the order when made of its attributes of finality. The order being final, it is appeal-able. It therefore follows the judgment sustaining the motion to dismiss the appeal on the grounds the order admitting the will to probate was not an appealable order, and that the district court had no jurisdiction to hear an appeal on the question of a valid probate, must be reversed. Since on the record before us that is the sole question now presented for review,' the judgment is reversed.\\nThiele, J., not sitting.\"}"
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+"{\"id\": \"496501\", \"name\": \"Willard Farmer, Appellee, v. The Central Mutual Insurance Company of Chicago, Illinois, Appellant\", \"name_abbreviation\": \"Farmer v. Central Mutual Insurance\", \"decision_date\": \"1937-05-08\", \"docket_number\": \"No. 33,385\", \"first_page\": 951, \"last_page\": \"957\", \"citations\": \"145 Kan. 951\", \"volume\": \"145\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:51:59.904470+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Willard Farmer, Appellee, v. The Central Mutual Insurance Company of Chicago, Illinois, Appellant.\", \"head_matter\": \"No. 33,385\\nWillard Farmer, Appellee, v. The Central Mutual Insurance Company of Chicago, Illinois, Appellant.\\n(67 P. 2d 511)\\nOpinion filed May 8, 1937.\\nHugh C. Larimer, of Topeka, for the appellant.\\nA. Teeple, George E. Teeple, both of Mankato, and H. A. Smith, of Superior, Neb., for the appellee.\", \"word_count\": \"2668\", \"char_count\": \"14831\", \"text\": \"The opinion of the court was delivered by\\nAllen, J.:\\nThis was an action for damages on account of injuries received in an automobile collision. Judgment was for the plaintiff, and defendant appeals.\\nThe injury to the plaintiff resulted from an automobile accident which occurred about 7:30 o'clock p. m., after dark, on October 18, 1935, on U. S. highway No. 36, about five and one half miles west of Mankato, Kan. The father of the plaintiff was the owner of a 1924 model Chevrolet coup\\u00e9, and at the time of the collision the coup\\u00e9 was being driven by plaintiff's father. Mr. Dickson was riding in the seat with plaintiff's father. The plaintiff and his brother were sitting on the turtle back of the coup\\u00e9 with their backs against the front seat and their feet braced against the spare tire. They had their backs to the direction in which the coup\\u00e9 was traveling. There were some suitcases under the lid of the turtle back, and the surface of the turtle back on which the plaintiff and his brother were riding was almost level. The width of the surface of the turtle back was about three feet.\\nThe plaintiff's father and the party accompanying him left their homes in Rexford, Kan., on the morning of October 18, 1935. They drove at a speed of twenty-five miles an hour. Plaintiff with his brother had ridden sitting on the turtle back the entire trip and had not experienced any difficulty staying there. The lid was firm and plaintiff testified the speeding up or slowing down of the car did not affect his riding.\\nThe Chevrolet coup\\u00e9 on which plaintiff was riding collided with a gasoline transport truck owned by the Stadler Brothers and which was driven and operated by their employee, Norris Christenson. The width of the oil mat highway at the place of the collision is about twenty feet. The accident occurred just after the coup\\u00e9 on which plaintiff was riding had crossed a bridge. The bridge is twenty and five tenths feet wide and forty-two feet long. The distance between the rails or guardposts, marking the edge of the fill on each side of the road east of the bridge, is twenty-seven and thirty hundredths feet. East of the bridge is a hill, the crest of which is five hundred and ten feet from the east end of the bridge. The bridge is twenty-four and six tenths feet lower in elevation than the top of the hill.\\nAt the time of the collision the Chevrolet coup\\u00e9 driven by plaintiff's father was traveling east, and the gasoline transport truck was traveling west. Shortly before driving upon the bridge, plaintiff's father saw the truck coming over the hill. Plaintiff's father testified the truck was then traveling on the south side of the road, and that he speeded up his car in order to get across the bridge before meeting the truck. He thought the bridge was too narrow for him to pass the truck on the bridge and he did not have time to stop his car before crossing the bridge. He was somewhat blinded by the lights of the truck, but could see the side of the bridge and the guardposts east of the bridge. After crossing the bridge, he testified he pulled over to the south side of the road as far as possible, so close to the guardrails that he was afraid his hub caps would catch in the guardposts. His story was that after crossing the bridge and pulling to the right as far as possible, he then continued in a straight direction until the impact with the truck; that the truck swerved to the right just in front of the coup\\u00e9. The coup\\u00e9 did not collide with the front end of the truck, because, as plaintiff's father driving the coup\\u00e9 testified, the truck turned to the right. In passing, the left rear fender and wheel of the truck came in contact with some part of the coup\\u00e9 upon which plaintiff was riding, causing the coup\\u00e9 to swerve to the left, cross the road and run into a guardpost on the north side of the road.\\nAs a result of the collision the plaintiff was thrown from the coup\\u00e9 and received severe injuries.\\nAt the time of the collision in question, the appellee was accompanying his father on a trip from Rexford, Kan., to eastern Nebraska. They were looking for work and were dividing the expenses of the trip. The plaintiff had no interest in the car. He did not have anything to do with the selection of the road they took, and did not at any time make any suggestions as to where or when stops were to be made.\\nThe defendant insurance company had filed its policy with the state corporation commission covering the truck of Stadler Brothers as a condition precedent to the issuance of a K. C. C. permit, and the truck was at the time in question being operated in the business of its owners.\\nChristenson, the driver of the gasoline truck, testified that he observed the lights of the approaching Chevrolet coup\\u00e9 and lights from other cars coming from the west, and that he slowed up to let the plaintiff's' coup\\u00e9 pass over the bridge first; that after plaintiff's coup\\u00e9 passed over the bridge it looked as though the coup\\u00e9 were edging over on his side, or the north side of the highway, and that he, Christenson, was on the north or his right-hand side of the highway.\\nThe jury rendered a general verdict for plaintiff and returned special findings of fact.\\nAppellant first contends that the court erred in overruling the demurrer to plaintiff's evidence. As the testimony of the plaintiff showed that the driver of the truck was negligent in driving on the wrong side of the road, as charged in plaintiff's petition, this contention cannot be maintained unless the plaintiff was guilty of contributory negligence, or unless it be shown that he was engaged in a joint enterprise, and that the driver of the coup\\u00e9 was guilty of negligence, which would be imputed to the plaintiff.\\nDefendant argues that the manner in which the plaintiff was riding on the coup\\u00e9 was the proximate and actual cause of his injuries. As this is the most'serious question raised, we set forth the plaintiff's testimony:\\n\\\"Q. Now, was that place you were sitting on back there, was that level? A. Yes, almost level.\\n\\\"Q. Now, you rode that way all day, did you? A. Yes, sir.\\n\\\"Q. And you didn't have any trouble staying on there? A. No, not at all.\\\"\\nThe witness, on cross-examination, stated as follows:\\n\\\"Q. Now, did that turtle back, or the back compartment there to this coup\\u00e9, did it have a gradual slant down at the rear, or did it come out about level and then curve down to the rear? A. Came out about level, and then curved down.\\n\\\"Q. And you had some suitcases and things in the back end there that also kept it open some? A. Yes.\\n\\\"Q. And that would raise the back end a little bit more? A. Raised the lid a little more, yes.\\n\\\"Q. Now, while you were riding along there on the back end, did you notice whether or not the suitcases were soft enough that it caused the back end to swing up and down? A. No, they did not.\\n\\\"Q. It didn't do that, stayed firm, did it? A. Yes.\\\"\\nUnder the statement of facts detailed in plaintiff's testimony, must we say the plaintiff was guilty of contributory negligence as a matter of law? Negligence is conduct which creates an undue risk of harm to others. Contributory negligence is conduct which involves an undue risk of harm to the person who sustains it. To bar the plaintiff from recovery, it must appear that his failure to exercise reasonable care for his own protection was a legally contributing cause to his injury. His failure to exercise reasonable care for his own protection is not a legally contributing cause of his injury, unless such conduct was a substantial factor in bringing about his injury.\\nThe plaintiff and his brother had been riding all day in what appears to have been a secure position. The impact with the truck threw the plaintiff to the ground, but the record is silent as to any injury to the brother. It is not shown plaintiff's position on the turtle back was in any degree more dangerous, as regards approaching ears, than any other position in the coup\\u00e9 would have been. In Hagaman v. Manley, 141 Kan. 647, 42 P. 2d 946, the injured party was riding in a truck \\\"with his left leg hanging outside the truck bed,\\\" and his leg was crushed by the collision. His position was one of peril as to approaching and passing cars, and is not a case parallel to the one before us.\\nOur attention is directed to Ferguson v. Lang, 126 Kan. 273, 268 P. 2d 117, and Shrewsbury v. Goodacre, 135 Kan. 230, 10 P. 2d 1. In both of these cases the rule is laid down that where a guest in an automobile has an equal opportunity to see approaching danger, it is his duty to warn the driver. The limits of this rule are stated in Restatement, Torts, \\u00a7 495. In the case at bar it cannot be contended that the plaintiff had the ability to control the driver, nor an opportunity to warn him of the approaching danger. These cases are not in point. Under the facts in evidence we think the question as to whether the plaintiff was guilty of contributory negligence was for the jury. In answer to a special question the jury found the plaintiff was not guilty of contributory negligence, and we find no reason to disturb that conclusion.\\nThe next contention of the defendant is that the parties were en gaged in a joint enterprise and the negligence of the driver of the coup\\u00e9 was imputed to the plaintiff. We do not think this proposition can be maintained. In the first place the jury, in response to a special question, found that the driver of the coup\\u00e9 was not guilty of negligence, and in that finding we concur. Having crossed the bridge he was faced with an emergency. Between the guardrails on his right and the on-coming truck, he was forced to steer his way between the two dangers. We think the record shows .that he acted as any reasonably prudent man would have, under the circumstances, and that he was not chargeable with negligence. (Eaton v. Salyer, 135 Kan. 411, 10 P. 2d 873.) Defendant insists that the parties in the coup\\u00e9 were engaged in a joint enterprise. As we have found that the father of plaintiff, who was driving the car, was not negligent, the question as to whether there was a joint enterprise is immaterial. We will state, however, the facts fail to show a joint enterprise. The plaintiff did not own the car, and had no control over the driver. The parties had a common destination, but not a common business purpose. (Restatement, Torts, \\u00a7 491, and comment.) Under the facts in this case the question of joint enterprise was properly submitted to the jury. (Link v. Miller, 133 Kan. 469, 300 P. 2d 1105.) The jury in this case found that the occupants of the coup\\u00e9 were not engaged in a joint enterprise.\\nDefendant requested the court to instruct the jury that the plaintiff and the driver of the car were on a joint enterprise and as a matter of law the negligence of the driver would be imputed to the plaintiff. There was no error in the refusal to give this instruction. As shown above the jury found the driver of the coup\\u00e9 free from negligence, and further found there was no joint enterprise. Negligence cannot be imputed when none exists.\\nComplaint is made of the refusal to give instruction No. 7 requested by defendant. The court gave the following instruction:\\n\\\"If the plaintiff was negligent in riding on the Chevrolet car in question in the manner in which the evidence discloses he was riding at the time of his injury, and such negligence was the proximate cause of plaintiff's injury, this would be contributory negligence on the part of the plaintiff, and the plaintiff is not entitled to recover in this action.\\\"\\nAs this instruction covers the same ground as the requested instruction, there was no error in the action of the court.\\nIt is next urged that the court erred in overruling defendant's motion for a judgment non obstante veredicto. This contention is based on defendant's claim that the jury in its answer to special question No. 2 found for the plaintiff on a ground of negligence not pleaded. In answer to question No. 2 the jury found that the negligence of the driver of the truck consisted in lack of using ordinary care. The finding is consistent with the general verdict and the other findings, and with the allegations of negligence in the petition. As the defendant did not make any request to the court that the jury be returned with instructions to return a specific answer to the question, it is too late to complain.\\nFinally, defendant insists the court erred in overruling its motion for a new trial. This contention is based on alleged misconduct of the jury and of plaintiff's counsel, and rulings made by the court at the time the jury first returned to the courtroom with their verdict, and answers to special questions. When first returned by the jury question No. 10 and the answer appeared as follows:\\n\\\"10. Do you find the injury to the plaintiff was a mere unavoidable accident as between plaintiff and the driver of the truck in question? A, Yes.\\\"\\nFrom the record it appears that when the jury returned their verdict and special questions they asked if either plaintiff or defendant desired the jury polled. Counsel for plaintiff stated he would like to have the jury polled as to their answer to the tenth question. Counsel for defendant then stated \\\"if any portion of the verdict or special questions requires a polling, I think it is the duty of the court to require an entire polling.\\\" In the colloquy that followed, counsel for plaintiff stated several times that he desired the jury polled as to the tenth question, and counsel for defendant insisted if any polling was done it must be as to all questions. When the jury was polled as to question No. 10 one juror stated that he \\\"didn't just exactly understand the question.\\\" Over the objection of defendant the court directed the jury to return to their jury room for further deliberation. This was done and the jury returned to the courtroom and gave the answer to question No. 10 as \\\"No.\\\"\\nWe are cited to the case of Thornton v. Franse, 135 Kan. 782, 12 P. 2d 728, and other cases holding that a statement by the court that the jury should harmonize the answers to the special questions with the general verdict is error. No statement of that kind was made by the court in this case. We have searched the record and fail to find any misconduct of the jury or of counsel for plaintiff.\\nWe wish to add that question No. 10 should not have been given. As shown in this case, it only served to confuse the jury. It clarifies no issue and should have been avoided.\\nFinding no error in the record, the judgment is affirmed.\"}"
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+"{\"id\": \"513583\", \"name\": \"In re The Complaint made against Edward S. Dunn by the State Board of Law Examiners\", \"name_abbreviation\": \"In re the Complaint made against Dunn\", \"decision_date\": \"1977-09-23\", \"docket_number\": \"No. 49,277; Bar Docket No. 5710\", \"first_page\": 9, \"last_page\": \"10\", \"citations\": \"223 Kan. 9\", \"volume\": \"223\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:36:48.469262+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re The Complaint made against Edward S. Dunn by the State Board of Law Examiners\", \"head_matter\": \"No. 49,277\\nIn re The Complaint made against Edward S. Dunn by the State Board of Law Examiners\\n(Bar Docket No. 5710)\\n(569 P.2d 366)\", \"word_count\": \"524\", \"char_count\": \"3026\", \"text\": \"Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Edward S. Dunn, and\\nWhereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that Edward S. Dunn, Holton, Kansas, was, by the United States District Court for the District of Kansas, found guilty of willfully attempting to evade and defeat certain income tax due and owing by him to the United States of America for the calendar year 1970 by filing a false and fraudulent income tax return in violation of DR 1-102 (A) (6) of the Code of Professional Responsibility (214 Kan. lxxv), which prohibits a lawyer from engaging in any conduct that adversely reflects on his fitness to practice law, and\\nWhereas, The State Board of Law Examiners has made a written recommendation to this Court that said Edward S. Dunn be disciplined by \\\"Suspension\\\" from the practice of law, as provided by Rule 203 (a) (2) (220 Kan. xxviii [Adv. Sheet No. 2]), for a period not less than the term of his probation in the United States District Court, and\\nWhereas, In accordance with Rule 213 (c) (220 Kan. xxxiii [Adv. Sheet No. 2]), a copy of the report, findings and recommendations of the Board was mailed to respondent on June 20, 1977, along with a citation directing him to file with the court either a statement that he did not wish to file exceptions, or his exceptions to the report, and\\nWhereas, Under date of July 11, 1977, respondent filed his response to the citation, stating that he did not wish to file exceptions to the report, findings and recommendations, and\\nWhereas, On the 23rd day of September, 1977, after notice to respondent, a hearing was held before this Court for the purpose of reviewing the action of the State Board of Law Examiners and determining the nature of the discipline to be assessed against respondent. The State of Kansas appeared by Philip A. Harley, assistant attorney general, and respondent appeared in person and by his attorney, Charles D. McAtee, and\\nWhereas, Upon consideration of the record and arguments made by counsel the Court accepts the report and findings of the State Board of Law Examiners, but modifies the recommended discipline. The Court finds that respondent should be disciplined by indefinite suspension rather than for a period of not less than the term of his probation in the United States District Court as recommended by the Board.\\nIt is, therefore, by the Court Considered, Ordered and Adjudged that the said Edward S. Dunn be and he is hereby disciplined by suspension from the practice of law for an indefinite period, as of the 23rd day of September, 1977, and that he pay the costs of the proceeding. It is further ordered that this Order of Suspension be published in the official Kansas Reports.\\nBy Order of the Court, dated this 23rd day of September, 1977.\"}"
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+"{\"id\": \"515414\", \"name\": \"James M. Hoover, Appellee v. Charles D. Roberts, Mary A. Roberts et al., Defendants, Blanche Hyland, Appellant\", \"name_abbreviation\": \"Hoover v. Roberts\", \"decision_date\": \"1936-06-06\", \"docket_number\": \"No. 32,858\", \"first_page\": 58, \"last_page\": \"63\", \"citations\": \"144 Kan. 58\", \"volume\": \"144\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:39:55.810521+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James M. Hoover, Appellee v. Charles D. Roberts, Mary A. Roberts et al., Defendants, Blanche Hyland, Appellant.\", \"head_matter\": \"No. 32,858\\nJames M. Hoover, Appellee v. Charles D. Roberts, Mary A. Roberts et al., Defendants, Blanche Hyland, Appellant.\\n(58 P. 2d 83)\\nOpinion filed June 6, 1936.\\nJ. R. Hyland and II. N. Hyland, both of Washington, for the appellant.\\nA. J. Freeborn, F. R. Lobaugh, both of Washington, Charles L. Hunt and Frank C. Baldwin, both of Concordia, for the appellee.\", \"word_count\": \"2581\", \"char_count\": \"14923\", \"text\": \"The opinion of the court was delivered by\\nWedell, J.:\\nThis was a suit in partition. The contesting parties claim title to interests in the real estate through conveyances from devisees under a will. Appellant, defendant below, contended for an undivided one-fifth interest in the real estate, while appellee insisted appellant owned only an undivided one-eighth interest. The answer must be found in the will. The will was duly probated on November 22, 1922. It has not been contested. The will purported to give a life estate in the real estate to the widow of the testator and remainder in fee to eight children, subject to the following provision :\\n\\\"And should any of the children, heretofore named, die intestate before the execution of this will, and before the death of my beloved wife, then it is my will that the said share of said deceased child revert to my estate, and be divided among the remaining children as aforesaid.\\\"\\nThree of the children died intestate, prior to the death of the widow and subsequent to the death of the testator. One son died testate. Appellant contends the shares of the three children who died intestate reverted to and became the property of the remaining four living children and the devisees of the son who died testate. Maggie Testerman was one of the three children who died intestate. After her death, her husband executed a mortgage to the First National Bank of Concordia, covering his interest in the real estate. On November 21, 1932, a foreclosure judgment was rendered. In the foreclosure suit plaintiff asked for a construction of the will in order to determine the interest on which it had a lien. The trial court found the husband of Maggie Testerman had an equal undivided one-sixteenth interest. This finding was on the theory each of the eight children of the testator received a one-eighth interest. No appeal was taken from that judgment. All devisees were parties to the action. On May 6, 1935; this partition suit was filed. The trial court held the will was construed in the mortgage foreclosure suit and the interests of the devisees, and those claiming under them, was then finally adjudicated. Appellant contends that judgment was utterly void. The contention is made upon the ground the district court did not interpret or construe, but reformed the will, and that the district court had no jurisdiction to reform a will. We therefore have three questions presented. First, did the district court in fact reform the will? Second, has it jurisdiction to reform a will? Third, if not, can appellant now collaterally attack the judgment of reformation? The questions will be treated in that order.\\nThe pertinent portion of the petition in the foreclosure suit reads:\\n\\\"That said testator was ignorant and uninformed as to the meaning and purport of the word 'intestate,' which word was. inserted in said will by error of the scrivener who was directed by the testator to use language meaning 'without issue' and said scrivener used the word 'intestate' thinking and believing that it meant 'without issue.' . . .\\\"\\nThe foreclosure judgment recites:\\n\\\". . . that in that portion of paragraph four hereinbefore quoted, the word, 'intestate,' was inadvertently and by mistake used in said paragraph for and instead of the words, 'without issue,' as was intended by the testator, and the language, 'before the execution of this will,' was intended by the testator to mean before the will was made operative by testator's death.\\\"\\nNo extrinsic evidence was necessary for a logical interpretation of the testator's intention, as expressed by the phrase, \\\"before the execution of this will.\\\" Clearly the testator did not mean to use the phrase \\\"before execution\\\" as meaning before the making of the will. He must have intended by the word \\\"execution\\\" the carrying out of the will. That, under the law was, of course, at his death. It was the only time at which the will could become operative. The trial court in finding this to be the intention of the testator did not therefore transcend the bounds of interpretation or construction of a will.\\nThe remaining portion of the above judgment presents quite a different question. The trial court lifted out of the will the word \\\"intestate.\\\" Not only was that term, with a well-defined and clearly understood legal meaning, deleted from the testament but another phrase of very different meaning \\u2014 \\\"without issue\\\"- \\u2014 substituted therefor. This was done upon extrinsic evidence, ten years after the decree of probate had been entered. The excision of one word and the substitution of another phrase, was ordered on the theory of correcting a mistake of intention. It altered the intention of the testator as expressed in the will by a clear, well-defined term.\\nThompson on Wills, 2d ed., sec. 137, states the rule thus:\\n\\\"A court of equity will not reform a will under the guise of an attempt to construe it.\\\"\\nIn Morse v. Henlon, 97 Kan. 399, 155 Pac. 800, it was held:\\n\\\"There is no occasion for employing rules for judicial construction of a will in search of the testator's intention where such intention is expressed clearly and unequivocally in the instrument.\\\" (Syl. \\u00b6 1.)\\nTo the same effect are Martin v. Martin, 93 Kan. 714, 145 Pac. 565; Schott v. Schott, 128 Kan. 262, 276 Pac. 823; National Life Ins. Co. v. Watson, 141 Kan. 903, 905, 44 P. 2d 269; 2 Schouler on Wills. 6th ed., sec. 857.\\nIn the Schott case it was held:\\n\\\"Where the intention of the testator is plainly derivable from the text of the will itself, evidence aliunde is not admissible to establish that intention nor to modify the language of the testament.\\\" (Syl. IT 2.)\\nSee, also, 2 Schouler on Wills, 6th ed. sec. 859.\\nIn Thompson on Wills, 2d ed., sec. 137, it is said:\\n\\\"Where the will as executed differs materially from the testator's instructions and actual wishes, attempts have been made to have the will reformed-by courts of equity, but-such relief has been regularly refused.\\n\\\"One reason why a court of equity will not decree reformation of a will by correcting a mistake therein after probate is that such attempted reformation would constitute a collateral attack on the decree of the probate court. Another reason usually assigned, which seems to be sufficient, is that such an action is in the nature of one for specific performance, and requires a consideration for its support \\u2014 an element lacking in the relations of a testator and beneficiary. Another reason sometimes given for refusing reformation to correct alleged mistakes is that it opens the door to fraud and perjury.\\\"\\nIn Ragan v. National City Bank of Rome, 177 Ga. 686, 170 S. E. 889, it was held:\\n\\\"There is no provision of law in Georgia which authorizes the reformation of a plain, written legal will. 'All wills must be taken to mean just what the language, considered in the light of the circumstances and situation of a testator, was intended by him to mean. Parol evidence is not admissible to show that the testator meant one thing when he said another.' \\\" (Syl. \\u00b6 3.)\\nIn Sturgis et al. v. Work et al., 122 Ind. 134, 22 N. E. 996, it was said:\\n\\\"It is an established rule that the chancery powers of a court cannot be invoked to reform a will by eliminating words or phrases, and supplying others, so as to make the instrument conform to what may be supposed to have been the real intention of the testator.\\\" (p. 135.)\\nSee, also, Sherwood v. Sherwood, 45 Wis. 357; and 2 Page on Wills, 2d ed., sec. 1414.\\nIn 1 Page on Wills, 2d ed., sec. 809, is contained this concise statement of the rule:\\n\\\"The question always before the mind of the court is, not what should testator have meant to do or what words did he mean to use, but what is the reasonable meaning of the words which he has actually used.\\\"\\nIn support of the right to resort to extrinsic evidence to determine testator's intention and as authority of a court to delete words from the will and to transpose words and substitute conjunctions, we are referred by appellee to Smith v. Holden, 58 Kan. 535, 50 Pac. 447; Regnier v. Regnier, 122 Kan. 59, 251 Pac. 392; 28 R. C. L. 225, 226, and 2 Schouler on Wills, 6th ed. 1080. A study of these citations will clearly indicate they are not authority for the reformation of a will. They are not authority for the excision of words of definite and fixed legal meaning, nor for the substitution of other terms or phrases which convey an entirely different intention and effect a wholly contrary result.\\nThe excision of the word \\\"intestate,\\\" and the substitution of the phrase \\\"without issue,\\\" was neither interpretation nor construction of the words contained in the will, but was a plain reformation of the will. The district court was without jurisdiction to reform the will. In Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25, it was held:\\n\\\"The court has no power to reform a will so as to conform to the intentions of the testator shown by external, evidence to be different from those expressed in the instrument.\\\" (Syl. \\u00b6 1.)\\nIn the course of the opinion in the Holmes case, this court quoted with approval from Rood on Wills, as follows:\\n\\\"Neither the will nor any part of it is affected by any mistake of law or fact which induced the testator to make it, and the courts cannot amend or modify it so as to conform to what they imagine the testator would have done but for such mistake. For example, the will cannot be denied probate nor any of its provisions limited or enlarged in effect because the testator did not understand their legal effect nor truly appreciate the proportions in which his property would be thereby distributed; nor because he would or might have made a different will.\\\" (Rood on Wills, sec. 165.)\\nIn Dye v. Parker, 108 Kan. 304, 194 Pac. 640, it was said:\\n\\\"It is too well settled to require extended discussion that a court of equity has no power to reform a will. (See Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25, and authorities there cited; 23 R. C. L. 318-320.)\\\" (p. 305.)\\nNow, can appellant collaterally attack a prior judgment rendered without jurisdiction?\\nAppellee insists the trial court had jurisdiction in the foreclosure suit, of the parties and the subject matter, that no appeal was taken from the judgment within six months and the judgment is final. The court did have jurisdiction of the parties. It also had jurisdiction of the subject matter, insofar as interpretation or construction of the will was concerned. To that extent the judgment has become final. The remedy, if the judgment was erroneous in that regard, was by appeal. The court, however, had no jurisdiction of the subject matter for the purpose of reformation. Appellee relies upon the decision in Cross v. Hodges, 124 Kan. 672, 261 Pac. 585, in which it was held:\\n\\\"Where the interpretation of a will was properly drawn in question, the judgment of a district court of competent jurisdiction, whether correct or not, is a finality \\u2014 where all parties concerned in the will and in the judgment were properly impleaded, and where no appeal was taken from that judgment within the time allowed therefor by the code of civil procedure.\\\" (Syl. If 2^) (Italics inserted.)\\nThat decision is not helpful here. It was a case involving interpretation and not reformation of a will. The court, of course, had jurisdiction to interpret the will. Its judgment unappealed from, regardless of how erroneous, became a finality. (Rennolds v. Guthrie, 103 Kan. 829, 177 Pac. 359.)\\nIn Emery v. Emery, 104 Kan. 679, 180 Pac. 451, a divorce decree was entered and no appeal was taken. The decree included a provision that an eighty-acre tract of land, which had belonged to the husband, should be owned by the children, subject to a life in terest in their father. After the expiration of six months, the father brought an action against the children and the mother, asking that the title to the land be quieted in him. In a carefully considered opinion by the late Mr. Justice Mason, it was said:\\n\\\"A judgment which declares a legal obligation where none exists under the statute may be effective until set aside in accordance with some prescribed method, upon the ground that where the court is required to pass judicially upon a question the binding force of its decision does not depend upon its correctness (Investment Co. v. Wyandotte County, 86 Kan. 708, 121 Pac. 1097); but that principle applies only where the action taken is within the field over which the power of the court extends. Although a court may be called upon to decide the extent of its own power, it cannot be true that where the question so presented is purely one of law, a mistaken decision affirming its jurisdiction must be deemed binding upon the parties to the litigation until set aside, for this view would, in effect, abolish the limits of jurisdiction, and a judgment (for instance) by a justice of the peace upon a claim for more than three hundred dollars would be merely erroneous, and not void. It may not always be easy to distinguish between the attempted exercise of a power that is utterly lacking, and the mistaken exercise of an existing power, but the soundness and importance of the distinction cannot be doubted.\\\" (p. 681.) (Italics inserted.)\\nThe trial court in the instant case had neither jurisdiction nor power to reform the will. In Revere v. Revere, 133 Kan. 300, 299 Pac. 595, it was said:\\n\\\"She appeals, invoking familiar rules of law to the effect that judgments which have become final cannot be disturbed by subsequent proceedings. These rules, however, do not apply to judgments which a court had no power to make, and it has been repeatedly held in well-considered and stoutly contested cases that a district court has no power to make an award of permanent alimony in an indefinite amount to be payable in periodical installments.\\\" (p. 301.) (Italics inserted.)\\nSee, also, Catren v. Catren, 136 Kan. 864, 18 P. 2d 134.\\nIn Mastin v. Gray, 19 Kan. 458, it was said:\\n\\\"A judgment rendered with jurisdiction can never be impeached in a collateral proceeding; but a judgment rendered without jurisdiction may. In fact, a judgment rendered without jurisdiction is no judgment at all.\\\" (p. 466.)\\nSee, also, State v. Simmons, 39 Kan. 262, 18 Pac. 177, and Brockway v. Wagner, 126 Kan. 285, 289, 268 Pac. 96.\\nThe court being without jurisdiction to reform a will, the reformation was void. A judgment void for want of jurisdiction may be collaterally attacked. It may be vacated on motion at any time. (R. S. 60-3009.) It follows the judgment of the trial court must be reversed. It is so ordered.\"}"
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+"{\"id\": \"518415\", \"name\": \"William L. Pool, et al., Appellees, v. H. C. Holt, et al., Appellants\", \"name_abbreviation\": \"Pool v. Holt\", \"decision_date\": \"1956-11-03\", \"docket_number\": \"No. 40,441\", \"first_page\": 291, \"last_page\": \"294\", \"citations\": \"180 Kan. 291\", \"volume\": \"180\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T20:35:19.781577+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fatzer, J., not participating.\", \"parties\": \"William L. Pool, et al., Appellees, v. H. C. Holt, et al., Appellants.\", \"head_matter\": \"No. 40,441\\nWilliam L. Pool, et al., Appellees, v. H. C. Holt, et al., Appellants.\\n(303 P. 2d 186)\\nOpinion filed November 3, 1956.\\nPayne H. Ratner, of Wichita, argued the cause, and Louise Mattox, Payne H. Ratner, Jr., Russell Cranmer, Dale B. Stinson, Jr., Cliff W. Ratner, William L. Fry, A. Wayne Murphy, Ray A. Overpeck, Bernard V. Borst, and D. Clifford Allison, all of Wichita, were with him on the briefs for the appellants.\\nDouglas Hudson, of Fort Scott, argued the cause, and Howard Hudson, and Douglas G. Hudson, both of Fort Scott, were with him on the briefs for the appellees.\", \"word_count\": \"1642\", \"char_count\": \"9399\", \"text\": \"The opinion of the court was delivered by\\nRobb, J.:\\nThis appeal is taken from an order of the trial court overruling the demurrers of defendants to plaintiffs' pletition seeking to enjoin the sale and issuance of bonds by a rural high school district.\\nFor clarity we will continue to refer herein to appellees as plaintiffs and to appellants as defendants.\\nThe pertinent parts of plaintiffs' petition with which we are here concerned were that on November 30, 1954, an election was held in rural high school district No. 4, Bourbon county, whereby a $300,000 bond issue was authorized. At the time what is now part of common school district No. 92, Bourbon county, was included in district No. 4. On March 21, 1956, bonds No. 16 to No. 300, inclusive, totaling $285,000, which were a portion of the $300,000 authorized, were registered by district No. 4 with the state auditor. Further allegations showed that on March 26, 1956, the electors of common school district No. 99, Bourbon county, which was then a part of district No. 4, at a legal special election voted to annex all of the territory of that district to district No. 92. On April 25, 1956, the state superintendent of public instruction in accordance with law eliminated this territory from district No. 4 and placed it in district No. 92 for all purposes. The plaintiffs are the owners and taxpayers of this excluded territory.\\nIt was alleged that none of the bonds authorized at the bond election or registered with the state auditor had been issued by defendants.\\nIt was also alleged that any bonds which may be sold and issued by defendants shall be and become a lien and first mortgage only on the property which constitutes a part of district No. 4 at the time of the issuance of the bonds.\\nThe defendants filed a general demurrer to this petition on the ground that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against defendants and they also filed a special demurrer on the ground that the plaintiffs had no legal capacity to sue.\\nThese demurrers were overruled on June 15, 1956, by a memorandum opinion in which the trial court stated,\\n\\\"The petition attempts to assert two causes of action, one to declare the Plaintiffs' property not liable for the lien of the bonds if and when they are issued. The other is to enjoin the sale of the bonds. . . ,\\\"\\nand also stated,.\\n\\\"This presents a olear-cut issue as to whether the bonds have been issued.\\\"\\nThe memorandum opinion of the trial court further read:\\n\\\"However, the Supreme Court of the State of Kansas seems to have laid down a definite rule to be followed in determining this fact. In State vs. Pierce, 52 Kan. 521, the decision recites:\\n\\\" 'To issue county warrants or orders means \\\"to send out, to deliver or to put into circulation.\\\" '\\n\\\"Commenting upon the case the Supreme Court concludes:\\n\\\" 'To issue county warrants or orders means \\\"to send out; to deliver; to put forth; to put into circulation; to emit \\u2014 as to issue bank notes, bonds, scrip,\\\" etc. A County warrant or order is \\\"issued\\\" when made out and placed in the hands of a person authorized to receive it, or is actually delivered or taken away. So long as a county warrant or order is not delivered or put into circulation, it is not \\\"issued,\\\" within the terms of P. 1888.'\\n\\\"State vs. Pierce,\\n\\\"52 Kan. 521, 528-529.\\n\\\"In Steinbruck vs. Milford Township, 100 Kan. 93, we find:\\n\\\" 'As to when bonds are deemed to be issued, see The State v. Pierce, 52 Kan. 521, 35 Pac. 19; Perkins County v. Graff, 114 Fed. 441, 444, 4 Words & Phrases, p. 3778; 8 Words & Phrases, p. 7693; Webster's International Dictionary. Numerous other points are presented, but the one already considered is determinative and the others need not be discussed.' (p. 94.)\\n\\\"In Buckwalter vs. Henrion, 118 Kan. 13, on page 15 the court quotes with approval from an authority as follows:\\n\\\" 'It may be laid down that as a general rule the date of delivery of the bonds by the municipality to the creditor or purchaser is to be regarded as the date of issue.'\\n\\\"As late as State, ex rel., vs. Woodruff, 164 Kan. 339, our Supreme Court has approved that measure of determining when bonds are issued, quoting as the law with reference to bonds, 'to deliver, or give out, as for use; as to issue provisions . To send out officially; . to put into circulation . . .,' and quoting as authority the cases heretofore cited.\\n\\\"It is very evident, therefore, that the $285,000 worth of bonds are not 'issued' within the terms of the statute and the law of the State of Kansas. Therefore, they will not be a lien upon the Plaintiff's real estate if and when they are sold in the sum of $285,000 or any lesser sum. The Plaintiffs' Petition states a good cause of action on that ground.\\n\\\"Referring to the second phase of the Petition, the Plaintiffs' land not being subject to the lien of the bonds, it is no concern of the Plaintiffs when and in what manner they are issued. Therefore, the Demurrer would be good as to this part of the Petition. However, as hereinbefore cited, if the Petition is good in any particular, the Demurrer must be overruled.\\n\\\"The Demurrer of the Defendants is accordingly overruled.\\\"\\nA notice of appeal was served and thus the case comes before us for consideration.\\nWe are first met with plaintiffs' motion to dismiss the appeal. We have examined the record with special attention to the contentions set out in the motion to dismiss, but we find no merit in the contentions and that motion is overruled.\\nBoth parties to this appeal have raised much extraneous and redundant matter which will not be considered in this opinion.\\nThere can be no quarrel with the authorities cited by the trial court in its memorandum opinion, quoted above, upon which it based its determination that the bonds had not been issued. These authorities need not be restated - here (see, also, State, ex rel., v. School Board, 110 Kan. 779, 782, 204 Pac. 742) but we will consider further its final determination of the demurrers.\\nWe can find no grounds, nor are there any proposed in the record, for the conclusion of the trial court that since the petition in effect, sets out that if the bonds are issued the property of plaintiffs will not be liable for the lien of the bonds, it states a cause of action. Let us assume, without granting, that the trial court's interpretation has merit. In Lewis v. City of South Hutchinson, 162 Kan. 104, 117, 174 P. 2d 51, this court said,\\n\\\". . . the petition alleges nothing more than that the proposed bonds will become conclusively valid, negotiable obligations of the city unless the defendants are restrained from proceeding to register the bonds as authorized ' by law. Of course, the allegations to such effect state no reason which would justify the restraint of the defendants.\\\" (p. 117.)\\nThe provisions of the statute (G. S. 1949, 10-119) are clear and unequivocal that whenever a part of the territory of any municipality has been detached and attached to some other municipality such territory shall be liable for the payment of all bonds issued before such detachment. (See, also, G. S. 1955 Supp. 24-131 and 72-834 in which reference is made to G. S. 1949, 10-119.) We can say nothing that will lend impetus to this plain legislative mandate. (For an applicable case see Pessemier v. Plummer, 135 Kan. 429, 432, 10 P. 2d 887.) In State, ex rel., v. Lost Springs Rural High School District, 176 Kan. 378, 384, 271 P. 2d 812, there was a similar situation. However, the detached territory in that case was not subject to being taxed by the district from which it was detached but was liable to be taxed by the district to which it was attached. On page 385 of that opinion this court stated, in substance, that such attachment \\u2014 unless limited by statute and we note that no such statute exists here \\u2014 is for all purposes even though the attached territory may be included in some type of high school district.\\nUnder the allegations of the petition we are still confronted with the proposition that the bonds have not, yet been issued and under the latter discussion the state is the only proper party to bring such an action. (Haines v. Rural High School Dist. No. 3, 171 Kan. 271, 232 P. 2d 437.) Thus we must hold that plaintiffs are not proper parties to maintain this action. To do otherwise would create endless confusion.\\nSince plaintiffs are not proper parties to maintain this action, which fact appears on the face of the petition, the special demurrer should have been sustained to the entitre petition and in view of the over-all result, the general demurrer should also have been sustained.\\nThe order of the trial court is reversed with directions to sustain defendants' demurrers to plaintiffs' petition.\\nFatzer, J., not participating.\"}"
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+"{\"id\": \"524187\", \"name\": \"Arthur Creten and A-1 Mobile Homes Village, Inc., Appellants, v. The Board of County Commissioners of Wyandotte County, Kansas, Textilana Nease, Inc. and Albert C. Becker, Appellees\", \"name_abbreviation\": \"Creten v. Board of County Commissioners\", \"decision_date\": \"1970-03-07\", \"docket_number\": \"No. 45,629\", \"first_page\": 782, \"last_page\": \"789\", \"citations\": \"204 Kan. 782\", \"volume\": \"204\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:26:34.446049+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arthur Creten and A-1 Mobile Homes Village, Inc., Appellants, v. The Board of County Commissioners of Wyandotte County, Kansas, Textilana Nease, Inc. and Albert C. Becker, Appellees.\", \"head_matter\": \"No. 45,629\\nArthur Creten and A-1 Mobile Homes Village, Inc., Appellants, v. The Board of County Commissioners of Wyandotte County, Kansas, Textilana Nease, Inc. and Albert C. Becker, Appellees.\\n(466 P. 2d 263)\\nOpinion filed March 7, 1970.\\nRobert S. Lemon, of Kansas City, argued the cause, and was on the brief for the appellants.\\nRobert J. Foster, of Kansas City, argued the cause, and was on the brief for the appellee, The Board of County Commissioners.\\nEdward H. Powers, of Kansas City, argued the cause, and was on the brief for the appellees, Textilana Nease, Inc. and Albert C. Becker.\", \"word_count\": \"2907\", \"char_count\": \"17662\", \"text\": \"The opinion of the court was delivered by\\nSchroeder, J.:\\nThis is an appeal from an order of the district court of Wyandotte County, Kansas, sustaining the action of the board of county commissioners which denied an application for a \\\"special permit\\\" to construct and operate a mobile homes park at 88th and Kaw Drive in Wyandotte County, Kansas.\\nThe primary question on appeal concerns the reasonableness of the action taken by the board of county commissioners.\\nThis is not strictly an action to secure \\\"rezoning\\\" of a tract of land. The Wyandotte County zoning regulations adopted by the board of county commissioners have a provision that requires a \\\"special permit\\\" for the operation of an auto truck park, junk yard or a \\\"mobile home park.\\\" While this case involves only the issuance of the \\\"special' permit\\\" and not the rezoning of land, the same rules of law apply in reviewing the administrative proceeding. (See K. S. A. 19-2901, et seq.; and Scherrer v. Board of County Commissioners, 201 Kan. 424, 441 P. 2d 901.)\\nBy a unanimous vote the Wyandotte County planning board after considering the matter at two hearings approved the application for a \\\"special permit\\\" and recommended that it be granted on the ground \\\"the County is in need of more residences and could use the additional facilities.\\\"\\nThe board of county commissioners of Wyandotte County considered the matter at two meetings and unanimously denied the application for a \\\"special permit,\\\" thereby refusing to follow the recommendation of the county planning board. Thereafter the applicant requested a rehearing before the board of county commissioners, and after granting a hearing the request for a \\\"special permit\\\" was again denied.\\nThe applicant then filed an action in the district court under the provisions of K. S. A. 1969 Supp. 19-2926 to have the reasonableness of the action of the board of county commissioners determined.\\nThe journal entry filed in the trial court on the 22nd day of April, 1967, discloses that Textilana Nease, Inc., a corporation, and Albert C. Becker were permitted to intervene as parties defendant, and the trial court thereafter denied the application of the plaintiffs to have the action of the board of county commissioners declared unreasonable, arbitrary and capricious. Hence this appeal.\\nThe trial court after hearing the evidence presented by the parties and after examining the exhibits introduced found as follows:\\n\\\"That plaintiff Arthur Creten is the record owner of the real estate concerned in this action generally described as follows, to wit:\\nA 75 acre tract on the East side of 88th Street and South of K-32 highway and South of the Union Pacific right-of-way, being identified as Tract No. 526 A-1 containing 35 acres and Tract No. 517 A-1 consisting of 40 acres;\\nand that A-1 Mobile Homes Village held an option to purchase said real estate. That die plaintiffs, in August, 1967 made application to the Board of County Commissioners of Wyandotte County, Kansas for a special permit for the installation of a Mobile Homes Park on the real estate above described. That on the 3rd day of November, 1968 said application was approved by the Planning Commission of Wyandotte County, Kansas, and said recommendation was directed to the Board of County Commissioners, which board, after a hearing and a view of the property concerned overruled said Planning Commission and denied said permit on the 20th day of November, 1967. That upon motion of plaintiffs for a rehearing by said commissioners, said board again denied such permit on the 4th day of January, 1968, stating that no new evidence had been presented which would cause said board to reverse its decision. That the evidence upon which the preceding findings have been made was undisputed by the parties hereto.\\n\\\"The court finds from the evidence that the major access to the property concerned intersects with the mainline of the Union Pacific Railroad, such situation constituting a hazard detrimental to the establishment of a mobile home residential area on subject property.\\n\\\"The court further finds that the Textilana Nease Chemical Company to the immediate West of subject property, emits unpleasant odors and maintains a lagoon of water adjacent to said plant which is a residue of the chemical processes of said company, all of which would constitute a hazard and nuisance to a Mobile Home Park on plaintiff's real estate.\\n\\\"The court further finds that the real estate concerned is subject to overflow of water and that as a result water stands on said property.\\n\\\"The court further finds that the property concerned has a heavy industrial zoning classification and that it would be unreasonable to establish 500 families in said industrial area under the conditions heretofore found to exist with reference to this specific property.\\n\\\"The court further finds that a large protest petition was signed and filed by persons living and owning property in the vicinity of the real estate concerned. The Court finds that from the evidence that although the reasons for which said County Commissioners voted against the issuance of said permit did not appear in the minutes of said commissioner's meeting that said matters had been discussed by said commissioners in executive session.\\n\\\"The court finds that the action of the County Commissioners of Wyandotte County, Kansas, in denying the permit concerned was a reasonable and proper exercise of their administrative authority, and that such action was in no wise unreasonable, arbitrary or capricious.\\\"\\nThe appellants, Arthur Creten and A-1 Mobile Homes Village, Inc., first contend the board of county commissioners, sitting as an administrative body, failed to make specific finding of fact or give any explanation to justify its conclusion in overruling the action of the county planning board.\\nThe appellants rely on Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572, for the proposition that administrative bodies must make findings of fact upon which they rely to arrive at their decision.\\nWhile it is true courts would be materially assisted in the review of decisions by administrative agencies if such agencies stated the reasons for their decision, this requirement has not been held mandatory by our decisions. The case upon which the appellants rely involved action by the state corporation commission which had promulgated and adopted its own rules. These rules had been published and had the force and effect of law. The question there posed was whether the commission s order complied with its own rules. The court found the commission s rules of practice and procedure, particularly Rule No. 81-1-232, provided that the commission should make a summary of the evidence and findings of fact and conclusions of law. In that respect the corporation commission had failed to conform to its own rules, and the case was remanded to the district court with instructions to issue an order setting aside the order of the state corporation commission, and to remand the case to the commission for further proceedings consistent with the court's opinion.\\nThe decision in Kansas Public Service Co. v. State Corporation Commission, supra, does not control the point here asserted by the appellants. There is nothing in the statutes of Kansas pertaining to zoning procedure by boards of county commissioners which even approaches the rule of the Kansas corporation commission, basically, the statute provides that the board of county commissioners must make a decision, and in the exercise of its discretion in zoning matters its decision must be reasonable. It further provides for an appeal if, in the opinion of the person or persons affected, that decision is unreasonable. (K. S. A. 1969 Supp. 19-2926.)\\nThe record contains the testimony of the three county commis sioners of Wyandotte County relative to this application for a \\\"special permit.\\\" All three commissioners testified they voted against the application for a \\\"special permit,\\\" stating among the reasons:\\n1. That a very dangerous unprotected railroad crossing had to be crossed to approach the property concerned.\\n2. That there was a stagnant odorful lake or lagoon maintained by the chemical company immediately adjacent to the land in this case.\\n3. The chemical plant itself on the real estate adjoining the property could operate as a nuisance to persons living in mobile homes.\\n4. That the land involved was located adjacent to the river, and that the river overflows on the land and that when the Commissioners inspected the property water was standing on same.\\n5. That there was overwhelming protest against this project from the immediate area in which the land was located, and that all adjoining owners protested.\\nOne of the county commissioners testified the minutes of the county commissioners' meeting when the decision was made did not contain all of the dialogue at the meeting. It was disclosed the commissioners mentioned the reasons why the petition should be denied in discussing the matter.\\nThe appellants next contend the board of county commissioners, in establishing a regulation applicable to the appellant Creten's property, was so restrictive, unreasonable and unfair that it constituted arbitrary action.\\nTo support this charge the appellants rely upon testimony of Mr. Creten to the effect that he has owned the property in question for some twenty or twenty-five years; that he has retired and discontinued farming because of age and economic reasons; that he has an option to sell the seventy-five acres at $1,900 per acre, subject to obtaining the \\\"special permit\\\" in question for a mobile homes park; and that it is zoned for heavy industrial purposes and has remained in this zoning classification since November 12, 1943. Thereupon it is argued the board of county commissioners denied the application for a special permit, without reviewing this restriction on the appellant Creten's land and in failing to give consideration to the change in land use. This, it is said, \\\"constitutes inaction or omission which contribute to an unreasonable restriction on the property involved.\\\"\\nThe appellant Creten s evidence tended to show his land had a value of $500 per acre for agricultural use, and $1,500 to $2,500 per acre for mobile homes use. There was testimony of real estate appraisers that the highest and best use for the appellant Creten's land would be for a mobile homes park.\\nAnother expert testified there were twenty thousand acres of land in Wyandotte County zoned for heavy industry that have never been used for such purpose, and that such zoning regulation constitutes an unrealistic restriction on the use of the land. The appellants' evidence further showed a need for additional medium housing, and that there has been a significant increase in the required number of mobile homes to the point where they constitute a very significant portion of new family housing starts.\\nThe appellants also rely upon the fact that a mobile homes village at 59th and Kaw Drive by A-1 Mobile Homes was established where the zoning was heavy industrial, and a special permit was granted approximately five years ago. This location is approximately twenty-nine blocks away from the property in question.\\nBased upon the appellants' evidence, they argue the refusal to grant a special permit for a mobile homes park at this location is discriminatory, inequitable and contributes to the inescapable conclusion this was unreasonable action on the part of the county commissioners.\\nNo question is raised by the appellants as to the admissibility of evidence and the manner in which the trial court conducted the proceeding. Generally, it may be said the proceeding was conducted consistent with the prior decisions of this court. (Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513; and Keeney v. City of Overland Park, 203 Kan. 389, 454 P. 2d 456.)\\nAn expert witness for the appellees testified the land concerned herein was worth $1,500 to $2,500 per acre for mobile home use, but for industrial use was worth $15,000 per acre. This testimony would tend to indicate the industrial classification for the land owned by Creten was not only reasonable, but that he was not the victim of confiscation because of the continued reservation of his land for industrial use by the county.\\nGenerally it may be said the evidence presented at the trial sustained the findings of the trial court.\\nIn actions of this nature courts are limited to passing on the reasonableness of the action taken by the county commissioners. The plaintiff in such an action has the burden of establishing his cause of action by a preponderance of the evidence, and it is incumbent upon those attacking the action of the governing body to show the unreasonableness of such action. A court may not substitute its judgment for that of the governing body and should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence. There is a presumption that the governing body acted reasonably, and it is incumbent upon those attacking its action to show the unreasonableness thereof. (Bodine v. City of Overland Park, supra; and Keeney v. City of Overland Park, supra.)\\nThere is no testimony in the record that the industrial area concerned could not be feasibly developed for industry. The fact that large tracts of land had been reserved for industrial use does not show the action of the county commissioners in denying the permit unreasonable. The land in question lies adjacent to the river and adjacent to the main line of the Union Pacific Railroad and is ideal for industrial development. The planning consultant for the city of Kansas City, Kansas, who was a witness for the appellants, testified:\\n\\\"The present practice of placing these courts in industrial areas raises some serious questions; if we subscribe to the belief that all living units should be provided with reasonably good environment, the ability to attain this environment in an industrial area is seriously limited, if in fact possible at all.\\\"\\nIt is not confiscatory to adopt a plan for land use development and to maintain that plan for development in an area where such development is possible. To abandon such plan for a single project in light of all the circumstances presented by the evidence herein is not required. Here abandonment of the plan would create a situation where homes and children would be placed in an industrial area next to a chemical plant which emitted odors and discharged chemicals into a stagnant lagoon. The area could be reached only by crossing an unprotected railroad crossing which passes forty-one trains in a given day; and the area is subject to overflow waters from the river.\\nThe action of the county commissioners was not unreasonable because it had previously issued a special permit for a mobile homes park several miles east of the property in question under conditions which were dissimilar to those here presented.\\nUpon the record presented in the instant case, we cannot say the action taken by the board of county commissioners was unreasonable. The evidence supports the findings of the trial court, and they in turn support the action of the board of county commissioners.\\nThe judgment of the lower court is affirmed.\"}"
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+"{\"id\": \"528114\", \"name\": \"State of Kansas, Appellee, v. Curtis E. Daniels, Appellant\", \"name_abbreviation\": \"State v. Daniels\", \"decision_date\": \"1974-06-15\", \"docket_number\": \"No. 47,356\", \"first_page\": 164, \"last_page\": \"167\", \"citations\": \"215 Kan. 164\", \"volume\": \"215\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:57:50.202060+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Kansas, Appellee, v. Curtis E. Daniels, Appellant.\", \"head_matter\": \"No. 47,356\\nState of Kansas, Appellee, v. Curtis E. Daniels, Appellant.\\n(523 P. 2d 368)\\nOpinion filed June 15, 1974.\\nRalph Winters, Jr., of Wichita, argued the cause and was on the brief for the appellant.\\nClifford. L. Bertholf, assistant district attorney, argued the cause, and Vem Miller, attorney general, Keith Sanborn, district attorney, and Stephen M. Joseph, of counsel, of Wichita, were on the brief for the appellee.\", \"word_count\": \"1392\", \"char_count\": \"7971\", \"text\": \"The opinion of the court was delivered by\\nOwsley, J.:\\nDefendant appeals from conviction of one count of blackmail under K. S. A. 1972 Supp. 21-3428 (b) (now K. S. A. 1973 Supp. 21-3428 [&]) and sentence therefor of one to five years.\\nThe basic facts are not in dispute and we set forth only the facts necessary to our decision. It is our wish to encourage the kind of citizen aid to law enforcement officials which resulted in this conviction; and continued, unnecessary exposure of the victims of crime to the embarrassing details thereof would not accomplish that purpose.\\nDefendant testified in his own behalf and admitted that in 1972 he was blackmailing the girl who testified against him by threatening to distribute compromising pictures of her if she did not pay him $100.00 within one week. His only defense is that he was later entrapped into the act of selling the pictures to her father, which act is the basis of the charge against him.\\nOn appeal, defendant contends it was error for the trial court to refuse his request for an instruction on the defense of entrapment. He relies on holdings of this court to the effect the defense of entrapment is available when defendant is induced to commit a crime which he had no previous disposition to commit. Defendant points out our decisions which hold when events which culminate in a criminal charge commence with a police solicitation the defense of entrapment almost always presents a question of fact for the jury. (State v. Reichenberger, 209 Kan. 210, 495 P. 2d 919; State v. Houpt, 210 Kan. 778, 504 P. 2d 570; State v. Einhorn, 213 Kan. 271, 515 P. 2d 1036.) He argues from these cases that he was entitled to an instruction on entrapment since he raised the issue and presented some evidence in support of the defense. He testified it was only after he had been contacted by the girl's father that he decided to \\\"play along\\\" and sell the photographs to him. Defendant contends since the girl's father contacted him after seeking police help, he was acting as an agent of the police; therefore, the sale of the pictures was the result of police solicitation.\\nThe entrapment statute, K. S. A. 1973 Supp. 21-3210, provides as follows:\\n\\\"A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:\\n\\\"(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or\\n\\\"(b) The crime was of a type which is likely to occur and recur in the course of such person's business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.\\\"\\nThe meaning of the term, criminal purpose, as used in the statute is critical to our conclusion that the trial court did not err and defendant was not entitled to an instruction on entrapment. This court has expressly declined to read requirements of specificity into the term, criminal purpose. It connotes only a general intent or purpose to commit a crime or crimes when the opportunity is afforded rather than an intent to commit a specific criminal act at a specific time and place. (State v. Bagemehl, 213 Kan. 210, Syl. \\u00b6 3, 515 P. 2d 1104; State v. Houpt, supra, Syl. \\u00b6 1.) Defendant's own testimony revealed his general intent to commit the crime of blackmail. On cross-examination, he testified as follows:\\n\\\"Q. Now you had previously told her you wanted a hundred dollars for those pictures, is that right?\\n\\\"A. No I didn't tell her I wanted a hundred dollars for the pictures.\\n\\\"Q. Oh you didn't?\\n\\\"A. It was a hundred dollars that I wouldn't show the pictures to anybody. That was \\u2014 not to buy the pictures.\\n\\\"Q. Oh, you were going to keep the pictures and still charge her a hundred dollars for them, is that right?\\n\\\"A. That was it.\\n\\\"Q. Did you also tell her that you wanted [her] to prostitute herself for you?\\n\\\"A. That's right.\\\"\\nIn this case there is no evidence that defendant's general criminal purpose to blackmail was instigated by the girl's father or by police inducement and solicitation. The defense of entrapment is not available when, as in this case, the general criminal purpose to blackmail is admitted by the accused and preceded the specific act of selling the pictures to the giiTs father.\\nAs his second point on appeal, defendant asserts his Fourth Amendment rights to be free of unreasonable searches and Fifth Amendment protections against self-incrimination were violated by admission into evidence of two tape-recorded telephone conversations between himself and the girl's father. Defendant's argument that the girl's father was acting as a police agent because he accepted police help and advice is not convincing; but assuming arguendo and without deciding, that he was acting for the state, there is no merit to defendant's constitutional claims under the Fourth and Fifth Amendments.\\nIt is settled law that a state agent may tape-record such a telephone conversation without violating the other party's Fourth Amendment rights if the agent is a party to the conversation or has the consent of one party. (United States v. King, 472 F. 2d 1, [9th Cir. 1973]; United States v. Coley, 441 F. 2d 1299 [5th Cir. 1971], cert. den. 404 U. S. 867, 30 L. Ed. 2d 111, 92 S. Ct. 85; United States v. Viviano, 437 F. 2d 295 [2d Cir. 1971], cert. den. 402 U. S. 983, 29 L. Ed. 2d 149, 91 S. Ct. 1659; Boulware v. Battaglia, 344 F. Supp. 889 [D. Dela. 1972], aff'd 478 F. 2d 1398 [3rd Cir. 1973]; Holt v. United States, 404 F. 2d 914 [10th Cir. 1968], cert. den. 393 U. S. 1086, 21 L. Ed. 2d 779, 89 S. Ct. 872. See also State v. Wigley, 210 Kan. 472, 502 P. 2d 819.)\\nDefendant's argument amounts to an assertion that he has a constitutional right to rely upon possible flaws in the agent's, informant's, or the victim's memoiy, and to challenge his credibility without being beset by corroborating evidence. Defendant does not have that right under the Fourth Amendment. (Lopez v. United States, 373 U. S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381, reh. den. 375 U. S. 870, 11 L. Ed. 2d 99, 84 S. Ct. 26.) The activities of the girl's father in telephoning defendant as either victim or police agent would be considered a proper investigation and lawful under the Fourth Amendment. It would be inconsistent to consider such activities uncontitutional when accompanied by a tape recorder. (United States v. White, 401 U. S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122, reh. den. 402 U. S. 990, 29 L. Ed. 2d 156, 91 S. Ct. 1643.)\\nAgain, assuming without deciding, that the girl's father was acting as an agent of the state, there is no merit to defendant's claim that admission of the tape recordings violated his Fifth Amendment privilege against self-incrimination. Defendant's incriminating statements were not elicited through any compulsion, but were voluntarily made to the girl's father. When a defendant's incriminating statements to a government agent are not the product of any sort of coercion, legal or factual, no right protected by the Fifth Amendment is violated by admitting the agent's testimony and the accompanying tapes. (Hoffa v. United States, 385 U. S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408, reh. den. 386 U. S. 940, 951, 17 L. Ed. 2d 880, 87 S. Ct. 970.)\\nDefendant has raised no meritorious constitutional or legal question, and the judgment of the trial court is hereby affirmed.\"}"
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+"{\"id\": \"538762\", \"name\": \"Ray and Marie Smith, Appellants, v. Claud B. and Lottie E. Harris, Appellees\", \"name_abbreviation\": \"Ray v. Claud B.\", \"decision_date\": \"1955-06-11\", \"docket_number\": \"No. 39,652\", \"first_page\": 183, \"last_page\": \"187\", \"citations\": \"178 Kan. 183\", \"volume\": \"178\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:39:26.568251+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ray and Marie Smith, Appellants, v. Claud B. and Lottie E. Harris, Appellees.\", \"head_matter\": \"No. 39,652\\nRay and Marie Smith, Appellants, v. Claud B. and Lottie E. Harris, Appellees.\\n(284 P. 2d 611)\\nOpinion filed June 11, 1955.\\nHerbert L. Lodge, of Olathe, argued the cause, and Howard E. Payne, of Olathe, and Seth S. Lacy, of Kansas City, Missouri, were with him on the brief for the appellants.\\nJohn Anderson, Jr., of Olathe, argued the cause, and was on the brief for the appellees.\", \"word_count\": \"1731\", \"char_count\": \"9936\", \"text\": \"The opinion of the court was delivered by\\nThiele, J.:\\nThis was an action to enjoin the defendants from preventing use of a driveway by plaintiffs. The trial court denied the relief sought and the plaintiffs appeal, specifying as errors the overruling of their demurrer to a part of the defendants' answer and the sustaining of defendants' motion for judgment on the pleadings.\\nIn view of our conclusions later stated, it is not necessary that a detailed review be made of the pleadings.\\nIn the first five paragraphs of their petition, plaintiffs allege the status of the parties and that they acquired title to a tract of real estate, hereafter called tract A, in 1949, and that defendants acquired title to a tract immediately to the east, hereafter called tract B, in 1931. In paragraphs 6, 7, 8, 9, and 10 plaintiffs alleged that on September 17, 1928, the then owners of the two tracts entered into a driveway agreement, a copy of which was attached, and that the agreement was filed for record in the office of the register of deeds on September 19, 1928, and that the agreement contained stated provisions. For present purposes it may be said that the then owners of tract B granted to the then owners of tract A, an easement on a strip of land in tract B lying slightly east of the dividing line between the tracts for the use of the owners of tract A as a joint driveway for pleasure vehicles only, and that neither party should so use the driveway as to prevent its use by the other. Other rights need no present attention. In paragraphs 11 to 17 plaintiffs alleged the driveway was to furnish access to and exit from the residences on the two tracts; that shortly after plaintiffs acquired tract A, defendants prevented use of the driveway by blocking it by keeping motor cars upon it at all hours of the day and night and refused plaintiffs' requests to leave the driveway open for use by the plaintiffs, and that such conduct damaged plaintiffs; that the acts of the defendants were unlawful; and that plaintiffs had no remedy at law.\\nDefendants filed an answer consisting of two counts and also a cross petition. In count 1, defendants admitted the first five allegations of the petition and also that the agreement for the easement had been made and filed for record; they denied the agreement was still in force and alleged it had been terminated, and denied all of the allegations of paragraphs 11 to 17 of the petition inconsistent with their answer and they then set forth at length various con veyances of tract A; that on June 7, 1927, the then owner had mortgaged tract A; that the mortgage had been foreclosed, and that as a result of the foreclosure the driveway agreement and the provisions thereof were broken and rendered nugatory. Count 2 adopted the allegations of count 1, and after reciting conclusions as to the effect of the foreclosure proceedings, alleged that they had occupied tract B exclusive of any driveway easement; that the former owners of tract A did not claim any right under the alleged easement but did acknowledge they had no interest, and further that defendants had been in adverse exclusive possession of tract B for more than fifteen years claiming title thereto against all persons and that plaintiffs had no right or interest in and to tract B under the alleged easement or otherwise. Their prayer was that injunctive relief be denied. In their cross petition they adopted the allegations of their answer, alleged they had been damaged by being required to retain counsel to defend in the amount of $500 for which they prayed judgment.\\nThe plaintiffs filed a reply which denied specifically and generally all allegations of new matter in the answer contrary to or inconsistent with tire allegations of their petition, demurred to count 1 of the answer for the reason the facts alleged constituted no defense, and for an answer to defendants' cross petition denied generally and specifically the allegations thereof and they demurred to the allegations of the cross petition as not alleging facts sufficient to constitute a cause of action.\\nThe trial court after a hearing thereon overruled the demurrer to the defendants' answer and cross petition and gave the parties time to plead further if they desired. Thereupon the defendants moved for judgment on the pleadings, and after a hearing, the trial court sustained the motion and ordered that plaintiffs be denied relief and that defendants have judgment.\\nIn due time plaintiffs perfected their appeal from the ruling on their demurrer and from the ruling on defendants' motion for judgment, and both rulings are specified as error.\\nWe first take note of the appellees' contention that the specifications of error are insufficient in that they merely say that the trial court erred in rendering judgment, and that under our decisions in Lumber Co. v. Smith, 84 Kan. 190, 114 Pac. 372; Heniff v. Clausen, 154 Kan. 717, 121 P. 2d 196; Lambeth v. Bogart, 155 Kan. 413, 125 P. 2d 377; and Moeller v. Moeller, 175 Kan. 848, 267 P. 2d 536, nothing is presented for our review. It is true that in the last cited case it was said, in effect, .that a specification of error that the trial court erred in overruling a demurrer did not state any legal question for review. In support only Lambeth v. Bogart, supra, was cited. Reference to the last opinion will disclose there was no specification of errors whatsoever. Notwithstanding the statement the specification was insufficient the court considered the question of the correctness of the ruling. The two other cases dealt with' situations where the specification was only that the trial court erred in rendering judgment. In Quivira, Inc. v. Quivira Co., Inc. 173 Kan. 339, 245 P. 2d 972, it was said:\\n\\\". . . We are not aware of any case where we have held that a specification of error that a trial court erred in ruling on a demurrer was insufBcient, and we shall not do so now or hold the appeal should be dismissed on the ground just mentioned.\\\"\\nAlthough not reflected in our opinions, probably because the question was not raised, the fact is that in many cases where the sufficiency of a demurrer either to pleadings or to evidence was involved, the specification made was only that the trial court erred in its ruling and this court considered the appeal. At the May sitting of this court five appeals other than the one at bar were heard in which the ruling on a demurrer was involved where the specification was only that the trial court erred in its ruling, and in three of those appeals that was the only specification of error. We think it would come as a shock to the bar of this state to say that the specification of error in such a case must include the reasons why error was claimed, that is the function of the brief.\\nWhat is said concerning rulings on a demurrer is applicable to the ruling on the motion for judgment. The appeal was specifically from the ruling on the motion and in our opinion the specification of error sufficiently pointed out more than a mere complaint the judgment was wrong. The appeal will be considered.\\nThe first question is whether the trial court erred in overruling the appellants' demurrer to count 1 of appellees' answer. As has been pointed out, the ground of the demurrer was that the facts alleged constituted no defense. As has been stated above, count 1 of the answer did allege a series of mortgages and a foreclosure thereof and of deeds and that thereby the driveway agreement was rendered nugatory, but it also contained a denial that the agreement was in force and effect as pleaded in the petition, an allegation the agreement had been terminated and a general denial of the allega Rons of paragraphs 11 to 17 of the peRtion. A general demurrer to an answer containing more than one defense should be overruled if any defense, by itself, states facts which would defeat the plaintiff's right to recover. See Edwards v. Solar Oil Corp., 177 Kan. 219, 222, 277 P. 2d 614, and cases cited. Appellants overlook the denials in the answer and argue that the foreclosure did not abrogate the agreement. We shall not discuss that feature. It is clear that the demurrer was not good as to the denials and that the trial court properly overruled it.\\nWe are of the opinion the Rial court erred in sustaining the appellees' moRon for judgment on the pleadings. Without repeRtion of its allegations, it is here sufficient to say that the peRtion stated a cause of action based on the theory appellants had rights in appellees' real estate by reason of the driveway agreement or easement. In any ruling on their moRon the appellees were not entitled to have considered any denials they may have set forth or the new matter alleged in their answer which had been specifically and generally denied in appellants' reply. See e. g., Schlemeyer v. Mellencamp, 159 Kan. 544, 156 P. 2d 879; Simmons v. Gill, 161 Kan. 123, 166 P. 2d 574; Artesian Valley Water Conservation Assn. v. Division of Water Resources, 174 Kan. 212, 255 P. 2d 1015; Drury v. State Highway Commission, 175 Kan. 667, 265 P. 2d 1022, and cases cited in each.\\nMeasured by the above rule the appellees were not entitled to judgment and their moRon should not have been sustained.\\nThe ruling of the Rial court on the appellants' demurrer to a porRon of the appellees' answer, as noted above, is sustained. The ruling of the trial court sustaining the appellees' moRon for judgment is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.\"}"
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+"{\"id\": \"545720\", \"name\": \"Hudson Oil Company of Missouri, Inc.; Mary Vandegrift; and F. B. Vandegrift, Appellees and Cross-Appellants, v. The City of Wichita, Kansas, a Municipal Corporation; Board of City Commissioners of City of Wichita, Kansas; Carl A. Bell, Mayor and City Commissioners of the City of Wichita, Kansas; Herbert P. Lindsley, Levi B. Rymph, Gerald F. Byrd and Justus H. Fugate, City Commissioners of the City of Wichita; and C. H. Funk, City Clerk of the City of Wichita, Appellants and Cross-Appellees; and Safeway Stores, Inc., a Maryland Corporation, Appellee; Hudson Oil Company of Missouri, Inc.; Mary Vandegrift; and F. B. Vandegrift, Appellees and Cross-Appellants, v. City of Wichita, Kansas, a Municipal Corporation; Wichita-Sedgwick County Metropolitan Area Planning Commission; Edwin B. Law, Chairman; Charles W. Harris, Charles Anderson, Harry B. Dugan, John Trout, Jr., Merritt Winsby, Erle Jennings and Joseph Meehan, Members of the Wichita-Sedgwick County Metropolitan Area Planning Commission, City of Wichita, Kansas; Board of City Commissioners of Wichita, Kansas; Carl A. Bell, Jr., Mayor and City Commissioners of the City of Wichita, Kansas; Herbert P. Lindsley, Levi B. Rymph, Gerald F. Byrd and Justus H. Fugate, City Commissioners of the City of Wichita, Kansas; and C. H. Funk, City Clerk of the City of Wichita, Kansas; Appellants and Cross-Appellees, and Safeway Stores, Inc., a Maryland Corporation, Appellee\", \"name_abbreviation\": \"Hudson Oil Co. v. City of Wichita\", \"decision_date\": \"1964-11-07\", \"docket_number\": \"Nos. 43,795 and 43,796 (Consolidated)\", \"first_page\": 623, \"last_page\": \"629\", \"citations\": \"193 Kan. 623\", \"volume\": \"193\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T18:48:51.200431+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hudson Oil Company of Missouri, Inc.; Mary Vandegrift; and F. B. Vandegrift, Appellees and Cross-Appellants, v. The City of Wichita, Kansas, a Municipal Corporation; Board of City Commissioners of City of Wichita, Kansas; Carl A. Bell, Mayor and City Commissioners of the City of Wichita, Kansas; Herbert P. Lindsley, Levi B. Rymph, Gerald F. Byrd and Justus H. Fugate, City Commissioners of the City of Wichita; and C. H. Funk, City Clerk of the City of Wichita, Appellants and Cross-Appellees; and Safeway Stores, Inc., a Maryland Corporation, Appellee. Hudson Oil Company of Missouri, Inc.; Mary Vandegrift; and F. B. Vandegrift, Appellees and Cross-Appellants, v. City of Wichita, Kansas, a Municipal Corporation; Wichita-Sedgwick County Metropolitan Area Planning Commission; Edwin B. Law, Chairman; Charles W. Harris, Charles Anderson, Harry B. Dugan, John Trout, Jr., Merritt Winsby, Erle Jennings and Joseph Meehan, Members of the Wichita-Sedgwick County Metropolitan Area Planning Commission, City of Wichita, Kansas; Board of City Commissioners of Wichita, Kansas; Carl A. Bell, Jr., Mayor and City Commissioners of the City of Wichita, Kansas; Herbert P. Lindsley, Levi B. Rymph, Gerald F. Byrd and Justus H. Fugate, City Commissioners of the City of Wichita, Kansas; and C. H. Funk, City Clerk of the City of Wichita, Kansas; Appellants and Cross-Appellees, and Safeway Stores, Inc., a Maryland Corporation, Appellee.\", \"head_matter\": \"Nos. 43,795 and 43,796 (Consolidated)\\nNo. 43,795\\nNo. 43,796\\nHudson Oil Company of Missouri, Inc.; Mary Vandegrift; and F. B. Vandegrift, Appellees and Cross-Appellants, v. The City of Wichita, Kansas, a Municipal Corporation; Board of City Commissioners of City of Wichita, Kansas; Carl A. Bell, Mayor and City Commissioners of the City of Wichita, Kansas; Herbert P. Lindsley, Levi B. Rymph, Gerald F. Byrd and Justus H. Fugate, City Commissioners of the City of Wichita; and C. H. Funk, City Clerk of the City of Wichita, Appellants and Cross-Appellees; and Safeway Stores, Inc., a Maryland Corporation, Appellee. Hudson Oil Company of Missouri, Inc.; Mary Vandegrift; and F. B. Vandegrift, Appellees and Cross-Appellants, v. City of Wichita, Kansas, a Municipal Corporation; Wichita-Sedgwick County Metropolitan Area Planning Commission; Edwin B. Law, Chairman; Charles W. Harris, Charles Anderson, Harry B. Dugan, John Trout, Jr., Merritt Winsby, Erle Jennings and Joseph Meehan, Members of the Wichita-Sedgwick County Metropolitan Area Planning Commission, City of Wichita, Kansas; Board of City Commissioners of Wichita, Kansas; Carl A. Bell, Jr., Mayor and City Commissioners of the City of Wichita, Kansas; Herbert P. Lindsley, Levi B. Rymph, Gerald F. Byrd and Justus H. Fugate, City Commissioners of the City of Wichita, Kansas; and C. H. Funk, City Clerk of the City of Wichita, Kansas; Appellants and Cross-Appellees, and Safeway Stores, Inc., a Maryland Corporation, Appellee.\\n(396 P. 2d 271)\\nOpinion filed November 7, 1964.\\nEdward F. Am, of Wichita, argued the cause, and Fred W. Aley, John Dekker, Richard F. Mullins, Milo M. Unruh, H. R. Kuhn, and Louis W. Cates, all of Wichita, were with him on the briefs for the appellants.\\nWayne Coulson, of Wichita, argued the cause and Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell, Willard B. Thompson, and David W. Buxton, all of Wichita, were with him on the briefs for the appellees and Hugo T. Wedell and Homer V. Gooing, both of Wichita, of Counsel.\", \"word_count\": \"2832\", \"char_count\": \"17272\", \"text\": \"The opinion of the court was delivered by\\nHatcheb, C.:\\nThis appeal stems from two consolidated actions. One was a mandamus action to compel the Board of City Commissioners of the City of Wichita, Kansas to approve a plat of plain-tiEs' tract of land in the city. The other was a mandamus action to compel the Board of City Commissioners of the City of Wichita and the Wichita-Sedgwick County Metropolitan Area Planning Commission to rezone plaintiEs' tract.\\nThe facts are not in dispute.\\nPlaintiEs own property in the City of Wichita with a frontage of 570 feet abutting the south side of Kellogg Street, an east-west federal highway. The tract is located two blocks east of Edgemoor. The properties on the south side of Kellogg Street on either side of appellees' tract are improved for commercial use. The entire immediate area abutting the south side of Kellogg Street has been zoned as \\\"LC\\\" (light commercial use) excepting appellees' tract and an adjoining commercially-used tract which automatically received \\\"A\\\" zoning classifications (residential use) when the city annexed the area. PlaintiE, Hudson Oil Company, was operating a service station on a portion of the involved tract when it was annexed by the city in 1949, and it continues to do so as an authorized non-conforming use.\\nFor many years there existed in the City of Wichita, Kansas, a City Planning Commission duly created under G. S. 1949, 12-701, et seq., and 13-1108, et seq. In 1957, there was created in Wichita and Sedgwick County the \\\"Wichita-Sedgwick County Metropolitan Area Planning Commission\\\" pursuant to G. S. 1961 Supp., 12-716, etseq.\\nIn 1958, plaintiEs filed an application with defendant, WichitaSedgwick County Metropolitan Area Planning Commission, to have the zoning for their tract changed from \\\"A\\\" to \\\"LC\\\" so as to conform the zoning classification with the existing and contemplated uses and in keeping with the zoning classification of surrounding properties in the area. The Planning Commission approved the zoning application but the City Commission refused to entertain it unless the appellees also filed a plat of the property for approval by the Planning Commission.\\nIn order to obtain consideration of their zoning application, plaintiffs filed a plat of their land and submitted it to the Planning Commission. After study by various sub-divisions of the Planning Commission and consideration by the Planning Commission, the plat was revised and was approved and forwarded to the City Commission for approval on November 2,1960.\\nThe plat approved by the Planning Commission included dedicated areas for the continuation of streets running from the south across appellees' tract up to Kellogg, which dedicated areas would provide appellees with additional street frontage and street access. The plat so approved did not contain any dedication of land parallel to and abutting the existing Kellogg right of way to which plaintiffs enjoyed full access along their Kellogg frontage.\\nThe City Commission, npon motion to approve the plat as approved by the Planning Commission, adopted a substitute motion on December 20, 1960, \\\"to the effect that as a statement of policy the City Commission is in favor of a service or access road on Kellogg from Edgemoor east to Rock Road . . .,\\\" and that the plat should be referred back to the Planning Commission for reexamination in the light of that policy. On January 5, 1961, the Planning Commission re-examined plaintiffs' plat in the light of the policy announced by the City Commission and voted to resubmit the same final plat back to the City Commission without recommendation. At the same time, the Planning Commission voted to withhold further action upon plaintiffs' zoning application until the final plat was approved by the City Commission.\\nAfter the issues were formed the parties stipulated as follows:\\n\\\"Before the City governing body would approve and accept the landowners' final subdivision Plat and before it would grant landowners' application for a zoning change from 'A' to 'LC', the City required that the landowners must dedicate and must show such dedication on their final Plat of a 10-foot strip of land along the North edge of the proposed subdivision for an East-West service or access road along the South side of Kellogg Avenue. The landowners' refusal to meet this condition or requirement by the City was the sole and only reason for the City, by action taken in formal meetings on December 20, 1960 and January 10, 1961, refusing to accept and approve the final Plat of Hudson Addition, and refusing to grant the application for the zoning change.\\n\\\"The governing body of the City of Wichita continues to refuse to approve said plat on the sole ground that the landowners have not consented to a dedication of the North 10 feet of the landowners' property abutting Kellogg Street for use as a service or access street, a frontage road or controlled access facility.\\n\\\"The aforesaid public bodies continue to refuse to grant the landowners' pending zoning application for the said property until such time as the aforesaid plat is approved or until the landowners make the aforesaid dedication.\\n\\\"The sole issues for determination by the Court are:\\n\\\"(a) Whether the governing body of the City of Wichita unlawfully or unreasonably refuses to approve the said plat on the ground above stated; and\\n\\\"(b) Whether the aforesaid public bodies unlawfully or unreasonably refuse to approve the landowners' zoning application on the ground above stated.\\\"\\nAfter the evidence was introduced the trial court made findings of fact and concluded:\\n\\\"The right of access to and from an existing public street or highway is one of the incidents of ownership of the land abutting thereon. It is a property right which may not be taken from the owner by tire public without his consent, except upon payment of full compensation and by due process of law.\\n\\\"The action of the defendants in refusing to approve the plaintiffs' plat, and refusing to grant their zoning application because the plat had not been filed and approved was unlawful, arbitrary and unreasonable for the following reasons:\\n\\\"(a) Such actions were not based upon any specific or definite ordinances, rules or regulations of law adopted pursuant to required notice and public hearings.\\n\\\"(b) Such actions were taken pursuant to a policy of establishing service roads only to the extent that right of way for same could be obtained from the owners without cost, as a condition precedent to approval of a plat of unplatted land, which in essence amounts to a policy of acquiring right of way from owners of unplatted land without cost as a payment of sorts for the approval of plats, and arbitrarily refusing any zoning change application for the sole reason that plats containing said dedications of right of way for service roads were not filed and approved.\\n\\\"(c) The legislature has prescribed the exclusive methods for acquisition of control of abutting owners' rights along existing streets and highways; and the legislative and constitutional mandates in this regard, and the judicial interpretations of same, exclude the appropriation of such rights under the guise of the exercise of police power which is the sole consideration urged by the defendants in justification of their policy and actions.\\\"\\nAn order was issued directing the approval o\\u00a3 the plat and zoning application. The defendants have appealed.\\nRefore discussing appellants' contentions, which largely challenge the legality of the trial court's conclusions, we must express some confusion as to the extent of the required dedication. The appellees assume and the trial court's conclusions are based on the presumption that the appellants are demanding as a prerequisite to the approval of the plat and the zoning application that the appellees dedicate to the city their access rights to and from Kellogg Street. If this were the situation we would have no hesitancy in agreeing with the trial court that the demand was unreasonable.\\nWe find nothing in the record, however, that indicates that the appellants are demanding anything as a prerequisite to the approval of the plat and the zoning application other than the dedication of a ten foot strip abutting Kellogg Street to be added to the existing right of way for use as a service or frontage street. Even though the ten foot strip and part of the existing right of way may later be used for an access road, no access rights are presently being demanded or affected.\\nThe first question presented for consideration is whether the municipal authorities may deny a zoning application on the sole ground that the land has not been platted when no rule or regulation requires platting as a condition precedent to zoning approval?\\nThe question assumes that there was no rule or regulation requiring platting as a condition precedent to zoning approval. There was no such rule or regulation at the time the application was made.\\nIt would appear that the entire area was zoned for residential use when it was taken into the city. All of the area has been platted and rezoned on special application except appellees' tract and a small adjoining tract. The area was originally zoned pursuant to statutory authority. (G. S. 1949,12-707, et seq.)\\nThe appellees made their application for rezoning under that provision of G. S. 1949,12-708 which states:\\n\\\". . . After such final report is submitted to the governing body, and final adoption of regulations by the governing body, the governing body may from time to time amend, supplement or change the boundaries or regulations contained in such final report: . .\\nThe statute places no restrictions on the governing body in granting applications for special exceptions to existing zoning ordinances other than the procedure to be followed. (Ford v. City of Hutchinson, 140 Kan. 307, 37 P. 2d 39.) There are no statutory restrictions as to what requirements the governing body may place on an applicant desiring a change in the zoning area for a small tract.\\nCertainly the governing body cannot be expected to anticipate all the requests that will be made for zoning changes and have rules and regulations available covering all conditions precedent to approval of the application.\\nAny conditions precedent to the granting of the application must be reasonable and nondiscriminatory. (G. S. 1949, 12-712; City of Wichita v. Schwertner, 130 Kan. 397, 286 Pac. 266; West v. City of Wichita, 118 Kan. 265, 234 Pac. 978.) It cannot be said that platting as a prerequisite to rezoning of a small tract being in a highly congested area all of which has been platted and rezoned is unreasonable or discriminatory. This is particularly true where it has been recorded as a general policy by the governing body to consider changes in zoning only after final plats of the area in question have been approved, even though the recorded policy does not have the dignity of a rule or regulation.\\nIt should also be noted that the Kansas statutes (G. S. 1949, 12-701, et seq., and 13-1108, et seq.) anticipate a close relationship between planning, zoning and platting. Although planning is the broad purpose to be accomplished, planning cannot be accomplished without both platting and zoning.\\nThe appellants ask the question:\\n\\\"Was it a reasonable exercise of the regulatory power of the City of, Wichita for said city to refuse to consider the Hudson Subdivision Plat and the Hudson application for zoning change unless and until the Hudsons had first dedicated to the city and shown upon their subdivision plat the dedication of a 10-foot strip along the north side of their property for a service or frontage street?\\\"\\nThe trial court found that the refusal was unreasonable because:\\n\\\"No specific or determinable ordinance rule or regulation has ever been adopted by the defendant Planning Commission which requires plat approval as a condition precedent to the granting of a zoning application acceptable and proper in all other respects.\\\"\\nThere was no dispute of fact on the question. The limits of a judicial opinion will not permit a reproduction of the \\\"master plan\\\" adopted by the city and the \\\"subdivision rules and regulations\\\" required by statute (G. S. 1961 Supp., 13-1109) which designated East Kellogg as a major street and expressed the policy which was to construct service or frontage streets on East Kellogg east of Edge-moor. One of the rules provided:\\n\\\"The arrangement of streets in new Subdivisions shall make provision for the continuation of the principle existing streets in adjoining areas (or their proper protection where adjoining land is not subdivided) insofar as they may be deemed necessary by the Commission for public requirements. . . . Streets dedicated in a plat should be made to align on section lines if at all possible.\\\"\\nIt is true that the master plan made no specific reference to the appellees' property or to frontage or access roads immediately in front of the described property of appellees. But the \\\"master plan\\\" was adopted and approved after hearings upon it and it refers to access or frontage streets along \\\"major streets.\\\" After public hearing, consideration and formal action, a further study was adopted and approved as an amendment to the master plan and this study designated East Kellogg as a \\\"major street.\\\" This master plan is not a detailed specific plan as to appellees' property, but it is an over-all plan for the present and the future, such as is anticipated by G. S. 1961 Supp., 13-1109. It is likewise true that the \\\"subdivision rules and regulations\\\" were adopted by the City Planning Commission on July 17, 1958, and approved by the City Commission on July 29,1958, after hearings thereon.\\nG. S. 1949, 12-705 clearly anticipates the dedication of streets and alleys for public use.\\nMany other property owners had made similar dedications for frontage streets on East Kellogg. Seventy-seven per cent of the right of way for frontage streets had been obtained and the forty per cent of the frontage streets east of Edgemoor was already paved.\\nIt cannot be said that the dedication of such land as is necessary to maintain uniformity in streets, service and access streets is an unreasonable prerequisite to the approval of a plat in a congested area.\\nWe are forced to conclude that the governing body of the City of Wichita did not act arbitrarily or unreasonably in requiring the platting of the appellees' tract before granting the application for a change of zoning and that the dedication of a ten foot strip to be added to the existing right of way where necessary to maintain uniformity in a service or frontage street as a prerequisite to approval of the plat was not arbitrary or unreasonable.\\nWhat has been said renders unnecessary the discussion of appellees' right to attorney fees as presented in their cross-appeal.\\nWe further conclude that the appellees' right of access to and from Kellogg Street was not before the trial court for consideration. If and when the City of Wichita attempts to take appellees access rights, the question of damages, if any, will be a matter for consideration.\\nThe judgment is reversed.\\nAPPROVED BY THE COURT.\"}"
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+"{\"id\": \"550166\", \"name\": \"State of Kansas, Appellee, v. Howard B. Robertson, Appellant\", \"name_abbreviation\": \"State v. Robertson\", \"decision_date\": \"1969-06-14\", \"docket_number\": \"No. 45,401\", \"first_page\": 647, \"last_page\": \"651\", \"citations\": \"203 Kan. 647\", \"volume\": \"203\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:34:03.928362+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Kansas, Appellee, v. Howard B. Robertson, Appellant.\", \"head_matter\": \"No. 45,401\\nState of Kansas, Appellee, v. Howard B. Robertson, Appellant.\\n(455 P. 2d 570)\\nOpinion filed June 14, 1969.\\nRichard A. Benjes, of Hutchinson, argued the cause, and D. C. Martindell, W. D. P. Carey, J. Richards Hunter, Harry H. Dunn, Robert C. Martindell, William B. Swearer and Elwin F. Cabbage, all of Hutchinson, were with him on the brief for appellant.\\nRaymond F. Berkley, County Attorney, argued the cause and Kerry J. Granger, Assistant County Attorney, was with him on the brief for appellee.\", \"word_count\": \"1624\", \"char_count\": \"9367\", \"text\": \"The opinion of the court was delivered by\\nFromme, J.:\\nHoward B. Robertson appeals from a conviction, judgment and sentence in the District Court of Reno County, Kansas, for robbery in the first degree. (K. S. A. 21-527.) He was sentenced as an habitual criminal for a period of not less than thirty years. (K. S. A. 21-107a.) Defendant had three prior felony convictions in Reno county.\\nDefendant-appellant's first specification of error is that the bail required was unjustified and excessive. The record from the district court affords this court little opportunity to evaluate such a claim. The amount of bail was fixed by the magistrate at $25,000. No proceedings to obtain a reduction of bail appear in the record. It does appear, however, the defendant has committed three previous felonies in Reno county.\\nThe amount of bail rests in the sound discretion of the presiding magistrate. The purpose of bail is to insure the presence of the prisoner at a future hearing. In fixing the amount a magistrate should be guided by a consideration of the nature of the offense as shown by the proof thereof. He may consider the propensity of the defendant for crime as indicated by his previous convictions. The magistrate must consider the probability of escape. No hard and fast rule can be laid down for fixing the amount of bail on a criminal charge. Each case must be governed by its own facts and circumstances. An appellate court should not interfere with the decision of the magistrate except where a clear abuse of discretion is shown affecting substantial rights and denying due process of the law. (8 C. J. S. Bail \\u00a7 48b; 8 Am. Jur. 2d, Bail and Recognizance, \\u00a7 39; Craig v. State, 198 Kan. 39, 41, 422 P. 2d 955.)\\nNo abuse of discretion is shown in the present case.\\nDefendant next specifies that the trial court erred in allowing the prosecution to endorse additional witnesses on the information and to introduce their testimony at the trial.\\nThe prosecuting attorney is required to endorse on the information the names of witnesses known to him at the time of filing. He may thereafter endorse the names of additional witnesses as may afterward be known to him if he obtains permission from the court. (K. S. A. 62-802; State v. Poulos, 196 Kan. 287, 290, 411 P. 2d 689; State v. Zimmer, 198 Kan. 479, 484, 426 P. 2d 267; State v. Davis, 199 Kan. 33, 37, 427 P. 2d 606.)\\nSubsequent endorsement and use of witnesses must be left to the sound discretion of the trial court as the interest of justice may require. The exercise of this judicial discretion is not without limitation. When it is shown the use of such witnesses will result in surprise and material prejudice preventing a fair preparation for defense the granting of such permission constitutes an abuse of judicial discretion. (State v. Eidson, 143 Kan. 300, 307, 54 P. 2d 977.)\\nThis requirement of endorsement of witnesses is a safeguard extended to a defendant to prevent surprise and give him an opportunity to examine the witnesses for the state in advance of trial. (Pyle v. Amrine, 159 Kan. 458, 474, 156 P. 2d 509.)\\nIn the present case the two witnesses endorsed late were accomplices who took part in the crime. The defendant had issued subpoenas before trial to secure their testimony. We assume defendant was familiar with their knowledge of the crime before he issued the subpoenas.\\nWhen the prosecuting attorney sought permission to endorse the names of the accomplices as witnesses he informed the court of the reasons for his original omission of their names. They were sepa rately charged with this crime. They were hostile to the prosecution. They were entitled to claim a privilege not to testify under the 5th Amendment to the Constitution of the United States. While the jury was being impaneled these accomplices indicated to the law officers a desire to testify against the defendant. This information was relayed to the county attorney and he sought verification and confirmation from their legal counsel. The following morning before any testimony was introduced the county attorney sought and obtained permission to endorse their names as witnesses. Defendant made objection but he did not ask for a continuance to ascertain the nature of their testimony. He already was advised of their knowledge of the crime. The testimony did not change the theory of the prosecution. It merely bolstered the case of the prosecution.\\nUnder these circumstances there was no surprise or change in theory which would result in prejudice or deny defendant a fair and impartial trial. No abuse of judicial discretion occurred in permitting the endorsement and use of these witnesses under the circumstances shown by the record.\\nThe final specification of error concerns alleged misconduct by the county attorney while the trial was in progress but during a noon recess. It is charged the county attorney intimidated one of defendant's witnesses and the witness did not testify.\\nMisconduct is not confined to occurrences while the case is being heard. It can occur before or during the trial and may be outside the hearing of the jury if the conduct results in loss of a witness's testimony which testimony would lend substantial support to the theory of a party. (Phares v. Krhut, 76 Kan. 238, 91 Pac. 52.)\\nThe witness, a Mr. Castor, was approached by the county attorney during a noon recess. Both sides had issued subpoenas for this witness. The county attorney and Mr. Castor were standing near the railing which separates the courtroom. They were in a public-place and in the presence of several people. The defendant was one of those present. Mr. Castor, the defendant and another bystander testified on the motion for mistrial.\\nAdditional background information is necessary to understand what transpired. The defendant and his two accomplices stayed at Mr. Castor's home the night before the robbery. The robbery-occurred around 8:00 a. m. The robbers returned to Mr. Castor's-place with the fruits of the crime, $1205. The three robbers were- picked up at Mr. Castor's place several hours after the robbery took place. Some of the money was not recovered by the police.\\nOn the motion of mistrial Mr. Castor was questioned by the county attorney and testified as follows:\\n\\\"Q. And would you relate to the court what that conversation was as close as you can verbatim?\\n\\\"A. You asked me, you said 'Castor, there is $800.00 missing and what did you do with the money,' and you said 'You have got the money, there is $400.00 in the couch and $400.00 in the attic and you took it and you better come up with it.'\\n\\\"Q. Is that the extent of our conversation?\\n\\\"A. No, I told you I didn't have it.\\n\\\"Q. And what else did you tell me about that.\\n\\\"A. I said there is a lot of people that had already been in the house before I got there, that I didn't know nothing about this until about 11:00 o'clock the next day after it happened.\\n\\\"Q. And we had some conversation, I believe, about this couch, and you had indicated what, concerning this couch?\\n\\\"A. That it has already been searched by the detectives.\\n\\\"Q. In relation to our conversation concerning this money that was supposed to be in the house, will you state to the Court whether there was any mention concerning your testimony in any respect, either for the state or for the defense?\\n\\\"A. You mean to testify for the defendant?\\n\\\"Q. Was there any talk except the fact that I told you I wasn't going to use you about testifying in this case?\\n\\\"A. You said 1 might not use you.'\\n\\\"Q. Any other conversation between you and I about your testimony?\\n\\\"A. No, other than you said I took the money.\\n\\\"Q. But about the testimony, this is what I am relating to.\\n\\\"A. No, nothing at all, nothing that I recall.\\n\\\"Q. Were any threats made?\\n\\\"A. No.\\\"\\nThe testimony of the other witnesses did not change the substance of this testimony.\\nThe defendant contends this conversation by the county attorney constitutes misconduct because it resulted in the loss of vital testimony in support of the defense.\\nMr. Castor was present during the trial but he was not called to the stand by either party. The record does not indicate he refused to testify. There is no showing made as to what his testimony would have been, if called. There is no showing, except the absence of his testimony, that the conversation with the county attorney resulted in loss of his testimony. As we view the conversation set forth in the record no misconduct is shown. The conversation merely indicates a desire by the county attorney to recover the fruits of the crime. It did not relate to trial testimony. It is difficult to read, into it an intent to prevent the witness from testifying. It took place at a time and place where such an intent was improbable. It was. not in the presence of the jury and no prejudicial error appears in. the record.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"60829\", \"name\": \"P. R. Sanford, et al., v. Jacob Willetts\", \"name_abbreviation\": \"Sanford v. Willetts\", \"decision_date\": \"1883-01\", \"docket_number\": \"\", \"first_page\": 647, \"last_page\": \"649\", \"citations\": \"29 Kan. 647\", \"volume\": \"29\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:58:26.936107+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"P. R. Sanford, et al., v. Jacob Willetts.\", \"head_matter\": \"P. R. Sanford, et al., v. Jacob Willetts.\\n1. Petition, Considered Amended. Where a petition is filed claiming damages on account of the wrongful seizure, under attachment process, of a certain mare named \\u201cJane,\\u201d and on the trial it appears that the animal seized was in fact named \\u201cIona,\\u201d and upon application leave is given to amend the petition in one sentence by a change from \\u201cJane\\u201d to \\u201cIona,\\u201d held, that although such name appears twice in the petition, and although the application referred to but a single paragraph and sentence, it will be considered in this court as a mere oversight of counsel, and the petition as amended wherever the name \\u201cJane\\u201d appears in it.\\n2. Wrongful Attachment; Measure of Damages. In an action on an attachment bond for a wrongful attachment, the measure of damages is the injury to the property attached caused by the attachment, and the expenses and value of the time and labor expended in obtaining a dissolution of the attachment.\\nError from Shawnee District Court.\\nAction brought by Willetts against Sanford and two others, to recover damages for a wrongful attachment. At the January Term, 1882, of the district court, plaintiff recovered a judgment for $240 and costs against defendants, who bring the case here. The opinion contains a sufficient statement of the facts.\\nCase & Curtis, and H. Safford, for plaintiffs in error.\\nVance & Crumrine, for defendant in error.\", \"word_count\": \"655\", \"char_count\": \"3811\", \"text\": \"The opinion of the court was delivered by\\nBrewer, J.:\\nThis was an action on an attachment bond, to recover damages for a wrongful attachment. Two questions are presented:\\nFirst, It was alleged in the petition that the property attached was a mare named \\\"Jane.\\\" This name appears twice in the petition: first, where it alleges ownership of the property of the plaintiff; and second, where it alleges seizure by the deputy constable. On the trial it appeared that the name of the animal was \\\"Iona\\\" instead of \\\"Jane,\\\" and on application of the plaintiff, leave was given to amend the petition by changing the name from \\\"Jane\\\" to \\\"Iona.\\\" In the first of the two places in which it appeared, the amendment was so made, and upon the amendment the petition remains as alleging the ownership of a mare named \\\"Iona,\\\" and the seizure of one named \\\"Jane.\\\" Upon this apparent contradiction defendant claims that the judgment against him should not be permitted to stand. This is altogether too technical. But a single animal was referred to in the testimony ; but a single animal was attached; and while the name of the animal was given originally in the petition as \\\"Jane,\\\" yet the testimony showed that its name was \\\"Iona.\\\" This mere matter of name is trifling, and while of course there was an omission of counsel in failing to notice the fact that the name was twice used, yet such omission ought not to prejudice the rights of the plaintiff. The error is not one which goes to substantial rights. When it appeared that the name of the animal attached was \\\"Iona\\\" instead of \\\"Jane,\\\" and leave was given to amend, the amendment should be considered as running to every place in the petition in which the name of \\\"Jane\\\" appeared. A failure to make the change in any particular instance must be regarded as a mere clerical omission on the part of the counsel.\\nSecond, The only other question is, as to the measure of damages. The court charged this to be the expense incurred and the value of the time and' trouble expended in obtaining a release of the property from the attachment, as well as any injury done to the property by means of the wrongful seizure. This is the mere actual damage, and that which is recoverable. (Drake on Attachment, \\u00a7175; Campbell v. Chamberlain, 10 Iowa, 337.) The instruction was right.\\nThere being no other question, the'judgment will be affirmed.\\nAll the Justices concurring.\"}"
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+"{\"id\": \"701686\", \"name\": \"In the Matter of Fred W. Rausch, Jr., Respondent\", \"name_abbreviation\": \"In re Rausch\", \"decision_date\": \"2001-10-19\", \"docket_number\": \"No. 86,887\", \"first_page\": 308, \"last_page\": \"330\", \"citations\": \"272 Kan. 308\", \"volume\": \"272\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:06:29.340486+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Fred W. Rausch, Jr., Respondent.\", \"head_matter\": \"No. 86,887\\nIn the Matter of Fred W. Rausch, Jr., Respondent.\\n(32 P.3d 1181)\\nOpinion filed October 19, 2001.\\nAlexander M. Walczak, deputy disciplinary administrator, argued the cause and was on the brief for petitioner.\\nCharles D. McAtee, of Topeka, argued the cause and was on the brief for respondent, and Fred W. Rausch, Jr., respondent, argued the cause pro se.\", \"word_count\": \"8843\", \"char_count\": \"54875\", \"text\": \"Per Curiam:\\nThis is a contested attorney discipline case filed by the office of the Disciplinary Administrator against the respondent, Fred W. Rausch, Jr., an attorney admitted to the practice of law in the State of Kansas. The hearing panel concluded that the respondent violated KRPC 1.15 (2000 Kan. Ct. R. Annot. 360) (procedures and requirements for maintaining an attorney trust account), KRPC 4.1 (2000 Kan. Ct. R. Annot. 398) (truthfulness in statements to others), KRPC 8.4(b) (2000 Kan. Ct. R. Annot. 420) (misconduct, commit a criminal act), KRPC 8.4(c) (conduct involving dishonesty), KRPC 8.4(d) (conduct prejudicial to administration of justice), and KRPC 8.4(g) (other conduct that adversely reflects on the lawyer's fitness to practice law), and recommended suspension for 2 years.\\nThe respondent asserts that the discipline recommended by the hearing panel is excessive. According to respondent, either published censure or the alternative of 1-year supervised probation under respondent's proposed plan is the appropriate discipline.\\nIn addressing discipline, we discuss respondent's claims that the panel erred by: (1) granting the Disciplinary Administrator's motion in hmine and (2) concluding that a civil judgment against respondent entered by a federal district court in Virginia, affirmed on appeal, was based on clear and convincing evidence.\\nWe agree with the hearing panel's recommendation and suspend respondent from the practice of law for a period of 2 years from October 19, 2001, the date of our opinion. The respondent has filed exceptions to some of the panel's findings. We have marked the exceptions with an asterisk:\\nThe Hearing Panel's Findings\\n\\\"1. . . . The Respondent was admitted to the practice of law on September 28, 1949.\\n5\\\"2. In March, 1994, the Respondent established a new trust account with Bank IV (now called Bank of America). The account was titled: The Kansas Bar Foundation, Fred W. Rausch, Jr. IOLTA Account . . . .\\\"\\nAlthough the respondent takes exception, arguing that the account was opened in February 1994, he admitted to the March 1994 date in his answer to the Disciplinary Administrator's complaint. At the disciplinary hearing, the respondent testified that the Interest on Lawyer Trust Account (IOLTA) account was opened before Deerfield Holding Company, Inc., (Deerfield) was actually incorporated, but no date was given.\\nIOLTA accounts for clients' funds are established by the Rules of this court. KRPC 1.15(d)(3)(iii). Interest or dividends on the account are remitted by the financial institution to the Kansas Bar Foundation, Inc. KRPC 1.15(d)(3)(iii)(aa). IOLTA trust accounts are designed for funds of clients or third persons (1) that are nominal in amount, (2) that are expected to be held for a short period of time, and (3) on which interest is not paid to the client or third persons. KRPC 1.15(d)(3).\\nThe record reflects that the IOLTA account contained the respondent's initial $500 deposit, investment funds from the Methodist Church in South Africa, and funds from Deerfield investors. Sometimes money was transferred to the Deerfield accounts or to Cecil P. Jones. Sometimes the respondent wrote checks to himself as payee out of the IOLTA account.\\n\\\"3. On March 8, 1994, the Respondent filed the necessary papers with die Kansas Secretary of State's office, and incorporated Deerfield Holding Company, Inc. (hereinafter 'Deerfield'). Deerfield's office address was die same [as] the Respondent's law office address . Additionally, die Respondent was listed as the Registered Agent of Deerfield.\\n\\\"4. Thereafter, on March 9,1994, the Respondent, Cecil P. Jones, and Deborah L. [Gardner-Jones] held die organizational meeting for Deerfield. At that time, 100 shares of stock were issued to die Respondent, and 100 shares of stock were issued to Mr. Jones. The three individuals present voted that they should each be elected to serve as the Board of Directors of Deerfield. Thereafter, Mr. Jones was elected Chairman of the Board of Directors and President of Deerfield; Ms. Gardner-Jones was elected Vice Chairman of die Board of Directors and Vice President of Deerfield, and finally, the Respondent was elected as Secretary of die Board of Directors and Secretary/Treasurer of Deerfield.\\n\\\"5. At a subsequent meeting of the Board of Directors, held on July 1, 1995, the members of die Board of Directors agreed to redesignate the shares of the corporation. At that time, Mr. Jones became owner of 150 shares of stock. The Respondent's ownership in the corporation was reduced to 50 shares of stock.\\n*\\\"6. Complaint of Pieter M. Van der Spuy\\\"\\nWe note that Van der Spuy filed a civil complaint grounded in fraud in the United States District Court for the Eastern District of Virginia, not a Kansas disciplinary complaint.\\n\\\"a. During October, 1995, Pieter M. Van der Spuy, a citizen of Soudi Africa who now resides in Virginia Beach, Virginia, from Erich Otto, also a citizen of South Africa, learned of 'high-yield foreign investment' programs operated by Deerfield. Mr. Otto indicated that he was scheduled to meet with Andiony H. Adams about investing in Deerfield. Mr. Otto told Mr. Van der Spuy that, if he was also interested, then he would ask Mr. Adams to forward information concerning die program to Mr. Van der Spuy's attention.\\n\\\"b. Mr. Van der Spuy contacted Mr. Otto indicating that he would like to have additional information regarding the investment programs. Mr. Otto provided Mr. Van der Spuy with Mr. Adams' address and telephone number. Thereafter, Mr. Van der Spuy contacted Mr. Adams by telephone. Mr. Adams provided information regarding the investment program available through Deerfield. In part, Mr. Adams assured Mr. Van der Spuy that die investment principal was fully secured against loss widi letters of guarantee and that the program required the letters of guarantee to be in die possession of the trust before any monies could be released by the trustee.\\n\\\"c. Later, Mr. Otto informed Mr. Van der Spuy diat the Mediodist Church of Soudi Africa had invested hundreds of millions of dollars with Mr. Jones and die Respondent through Deerfield. In order to ensure die accuracy of die information that he was receiving, Mr. Van der Spuy contacted Colin Woolacott. Mr. Woolacott, die Chief Executive Officer for the Mediodist Church of South Africa, assured Mr. Van der Spuy that Mr. Jones had been appointed the church's chief investment officer and that Mr. Jones was handling all of the church's investments.\\n\\\"d. In deciding whedier to invest widi Deerfield, Mr. Van der Spuy 'investigated' the Respondent. Mr. Van der Spuy contacted bar officials in die state of Kansas. Mr. Van der Spuy was informed diat the Respondent had been practicing law for approximately 40 years and had a 'clean record.'\\n*\\\"e. On October 27,1995, Mr. Van der Spuy-telephoned die Respondent. The Respondent informed Mr. Van der Spuy diat die funds would be secured by a pledge of securities before die funds were transferred from die trust to Deerfield.\\\"\\nThe record conflicts here. Apparently Van der Spuy told Steve Hulsopple, of the Kansas Securities Commission, that he spoke to the respondent in October. However, at trial, Van der Spuy testified that the first time he spoke to the respondent was November 13 or 14, when he was preparing to wire the $100,000. The respondent assured him that he had known Jones for some time and that Jones was experienced in \\\"this type of thing.\\\" Van der Spuy signed the documents received from Deerfield on November 13. At the disciplinary hearing, Van der Spuy agreed that the respondent did not personally make representations to him about a trading program.\\n*\\\"\\u00a3 As a result of the various conversations, Mr. Van der Spuy decided to invest $100,000 in Deerfield's investment program. Subsequently, Mr. Jones and the Respondent forwarded documents to Mr. Van der Spuy's attention. The documents included a Tower of Attorney,' a 'Trust Agreement,' and an 'Authorization to Transfer Funds.' After a careful review of the documents, Mr. Van der Spuy executed die documents and returned the same to Deerfield.\\\"\\nThe bulk of the documents were originally sent to Van der Spuy from Jones. After signing the documents, Van der Spuy sent them to Deerfield. First, Van der Spuy testified that he sent the documents to the Deerfield address at the respondent's law office, but then he testified that he thought he sent the documents to the Deerfield address in Georgia. He also faxed them to the Deerfield office in Georgia. Copies of the signed agreements were then sent back to Van der Spuy by Jones or the Respondent.\\n*\\\"g. Thereafter, on November 14,1995, Mr. Van der Spuy caused $100,000 to be wire transferred to the Respondent's trust account. Pursuant to instructions from Mr. Jones, on November 17,1995, the Respondent transferred Mr. Van der Spuy's $100,000 to Deerfield . Then, again, pursuant to instructions from Mr. Jones, on November 22, 1995, the Respondent wire transferred Mr. Van der Spuy's $100,000 from the Deerfield account to the personal account of Linda Flores at the National Westminister Bank in England.\\\"\\nThe transfer was to \\\"E.F.S., Inc. Linda Flores.\\\" The findings in paragraph g as modified are supported in the record.\\n*\\\"h. At no time did the Respondent or Mr. Jones receive a letter of guarantee or a pledge of securities to protect Mr. Van der Spuy's $100,000 investment as required by the documents. Additionally, Mr. Van der Spuy's $100,000 was never placed in a 'trading program' as die documents required.\\\"\\nThe record shows no evidence of a letter of guarantee or pledge of securities, nor is there evidence that Van der Spuy's money was placed in a trading program. Van der Spuy's money was transferred from the IOLTA account to a Deerfield account and then to an account in England (Linda Flores). The money was lost. At trial, the respondent acknowledged that he received no documentation in return for the funds he sent out in November 1995. In addition, the record shows that there apparently had been an agreement between Jones and Adams involving the transfer of Van der Spuy's money to the bank account of Linda Flores, the president of EFS, Inc.\\n\\\"i. On February, 12,1996, Mr. Van der Spuy received a return of $2,000 of his investment funds.\\n4\\\"j. In March, 1996, Mr. Van der Spuy wrote three letters to Mr. Jones and the Respondent requesting information regarding his investment. In response to Mr. Van der Spuy's letters, the Respondent telephoned Mr. Van der Spuy and indicated that he would contact Mr. Jones. Mr. Jones failed to respond to the requests for information.\\\"\\nThese facts are supported in the record.\\n*\\\"k. On July 2, 1996, counsel for Mr. Van der Spuy contacted the Respondent requesting information regarding Mr. Van der Spuy's investment. The Respondent replied, disclaiming knowledge of Mr. Jones' activities and stating that all investors' monies were in the process of being returned.\\\"\\nVan der Spuy told this to Steve Hulsopple of the Kansas Securities Commission. The respondent acknowledged that he received inquiries from investors wanting to know where their money was.\\n\\\"1. On December 26, 1996, Mr. Van der Spuy filed a complaint in the United States District Court for the Eastern District of Virginia, alleging that the Respondent, Deerfield, Mr. Jones, and Ms. Gardner-Jones engaged in fraud, breach of contract, and breach of fiduciary duty.\\n\\\"m. On July 10,1997, judgment was entered against Deerfield, Mr. Jones, and Ms. Gardner-Jones.\\n\\u00b0\\\"n. On Januaiy 6, 1998, after a trial to the court, the Respondent was found civilly liable for committing federal common law fraud, Virginia common law fraud, federal mail fraud, and breach of contact. Additionally, the Respondent was ordered to pay $98,000.00, plus interest to Mr. Van der Spuy. Mr. Van der Spuy requested that die court order the Respondent to pay attorney fees incurred in die action. The following are exceipts from die findings of die United States District Court for the Eastern District of Virginia:\\n\\\". . . So we have a scheme to defraud. The scheme is to get people to believe that the Kansas Bar Association, through diis wonderful trust agreement widi Fred W. Rausch, Jr. \\u2014 and it doesn't say trust with Mr. Rausch. It keeps constantly referring to die Kansas Bar Association, as if it were overseeing diis diing.\\n\\\"[The wording in Deerfield's documents was c]learly designed to place trust in Mr. Rausch and cloak him widi die authority of die Kansas Bar Association, clearly designed, and the instruments refer to that. And so I find that that was part of a scheme to defraud participants into believing that this particular money was going to be in trust under specific purposes widi an overseer of die Kansas Bar Association.\\n\\\"This agreement was drawn by Mr. Rausch, who is an attorney. It was designed to defraud people into believing that the Kansas Bar Association was a participant. And I'm looking at the trust agreement diat has Mr. Rausch's initials below it and his signature on it. He knew exactly what he was doing.\\n\\\". . . The trust agreement should have been between you as trustee and the individual for whom you were acting. The Kansas Bar Association was no part of any trust agreement. The account may have listed Kansas Bar Association, but this was specifically designed, and I find it was designed by you, to defraud, mislead, and deceive anybody who saw this agreement. . . .\\n\\\"... Clearly under Virginia law it is common-law fraud. Punitive damages won't serve to do much, although I think that you have some connection with this money somewhere and that you probably could put your hands on a portion of it, Mr. Rausch, because you are the only person that transferred it. I don't know where it is. It may be all gone.\\n\\\"I find that you are the person who probably designed all these documents, but have no direct evidence that you designed all the instruments. I have no doubts, and no other conclusion could rationally be drawn in this case other than that these documents represent a gigantic scheme to defraud as they were carried out. They were intended to mislead a person into believing that he was making an ironclad investment overseen by the Kansas Bar Association and that the money would only be transferred under a custodial arrangement whereby it would be for his benefit, when instead, it was anything but.\\n\\\"... I think it was willful and wanton fraud.\\\"\\nThe Virginia trial transcript was included in the record. The transcript did not explain why respondent defended at a bench trial, as opposed to a jury trial. At the disciplinary hearing, the respondent denied preparing the trust agreement and other documents. Also, at the disciplinary hearing, James Litfin, retired vice-president of Bank IV, testified that to the best of his knowledge, the bank captioned all of the attorney accounts as \\\"Kansas Bar Foundation\\\" accounts. The respondent acknowledged that in some of his business literature, the word \\\"Foundation\\\" was incorrectly interchanged with the word \\\"Association.\\\"\\n\\\"o. Before the court ruled on the request for attorney fees, on February 3, 1998, the Respondent filed a notice of appeal. Subsequently, on August 22,1998, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's judgment in an unpublished decision. The Respondent filed a petition for rehearing and suggestion for rehearing en banc. The Respondent's petition was denied.\\n\\\"p. Later, Mr. Van der Spuy renewed his request for attorney fees. On December 4, 1998, the District Court for the Eastern District of Virginia ordered that the Respondent pay Mr. Van der Spuy's reasonable attorney fees. Thereafter, January 15, 1999, the Respondent filed a second notice of appeal to the United States Court of Appeals for the F ourth Circuit. However, the Respondent's second appeal was dismissed on the Respondent's own motion on May 25, 1999.\\n\\\"q. At some point, the Respondent and counsel for Mr. Van der Spuy agreed to reduce the judgment owed by the Respondent. As a result, the Respondent paid a total of $65,000 to Mr. Van der Spuy and his attorneys.\\n\\\"7. Complaint of Clive U. Fisher\\n4\\\"a. Clive U. Fisher also became acquainted with the Respondent, Mr. Jones, and Deerfield through Mr. Adams. Mr. Fisher agreed to invest $100,000 through Deerfield. Thereafter, on October 3,1995, in order to effectuate the investment, Mr. Fisher provided a power of attorney to Mr. Adams. After obtaining the power of attorney, Mr. Adams signed certain documents, in [sic] behalf of Mr. Fisher, regarding Mr. Fisher's investment with Deerfield. The documents included a 'Letter of Intent,' 'Authorization to Transfer Funds,' 'and 'Agreement.' \\\"\\nThese facts are verified in the record.\\n*\\\"b. The 'Letter of Intent' included the following:\\n'During the Program period (one (1) year and one (1) day), the funds cannot and will not be hypothecated or invaded or put at risk in any manner whatsoever without an approved principal guarantee being substituted for the funds in accordance with approved procedures, and in the approved format(s) to be defined in the Proposed Agreement, in which case the funds can be released upon [Deerfieldfs instructions.' \\\"\\nThe language is supported in the record.\\n*\\\"c. In four wire transfers, Mr. Fisher transferred approximately $105,000 to the Respondent's trust account for investment in Deerfield's investment program. The wire transfers occurred on October 11,1995, October 13,1995, October 17, 1995, and October 20, 1995. Thereafter, on October 25, 1995, the Respondent, pursuant to directions by Mr. Jones, transferred $100,050 of Mr. Fisher's investment funds to Deerfield. Then, on November 13, 1995, again, pursuant to Mr. Jones' directions, the Respondent transferred Mr. Fisher's investment monies to the personal account of M.P.H. Williams at the Midland Rank PLC in England. [The record reflects the account was 'M.P.H. Williams, trustee, West Pacific Holdings, Ltd.']\\\"\\nAt the disciplinary hearing, the respondent testified that Adams collected a total of $300,000 from several investors, one of whom was Fisher. $35,609.10 was transferred from Barclays Bank by order of John Fitzpatrick; separate transfers of $30,000, $17,000, and $23,000 were transferred from the Standard Bank of South Africa by Casey Trading PVT Ltd. The connection between Fisher, Fitzgerald, and Casey Trading is unclear, but Fisher claimed that these monies were his personal funds.\\nAt the disciplinary hearing, the respondent acknowledged that the $300,000 included Fisher s $100,000. $5609 was for expenses, and $100,000 was for investment. In the Authorization to Transfer Funds, which was signed by Adams, $100,000 was designated for investment. The funds were transferred from the respondent's IOLTA account to a Deerfield account and then to the Midland Bank account of M.P.H. Williams (in England), as trustee of West Pacific Holdings, Ltd. The President of West Pacific, William Frattalone, wrote Jones a letter in which he said they were delayed in placing the investments into a trading program. Apparently Jones later asked for a return of the total $300,000 investment, and Frattalone assured him that the funds would be returned. However, according to letters written by Deborah Gardner-Jones, Frattalone moved the funds to an alternate bank undisclosed to Deerfield. The respondent acknowledges that the money has never been returned.\\ne\\\"d. At no time did die Respondent or Mr. Jones receive a letter of guarantee or a pledge of securities to protect Mr. Fisher's investment as required by die documents. Additionally, Mr. Fisher's investment was never placed in a 'trading program' as the documents required.\\\"\\nThe money was transferred to the IOLTA account, to a Deer-field account, and then to an account in England. No guarantees were received by the respondent.\\n\\\"e. After the contractual period of one year and one day ended, Mr. Fisher sought the return of his initial investment and the profits made during the year. Deerfield, die Respondent, and Mr. Jones failed to return Mr. Fisher's investment and profits. Thereafter, Mr. Fisher complained to die Office of die Disciplinary Administrator, the Office of the Securities Commissioner, and die Client Protection Fund.\\n*\\\"8. From on or about October, 1995, through on or about January 24, 1996, approximately $721,435.23 was received by die Respondent and deposited in the 'Kansas Bar Foundation, Fred W. Rausch, Jr., IOLTA Trust Account . . .' as investment for Deerfield which was intended for investment in 'high-yield foreign investment' programs. At the hearing on this matter, die Respondent agreed that he had a fiduciary duty to protect and preserve die investment monies contained in his trust account and the Deerfield accounts.\\\"\\nThese facts are supported in the record.\\n*\\\"9. During that period of time, the Respondent wired the monies to various personal accounts as instructed by Mr. Jones. Having failed to receive a letter of guarantee or pledge of securities following the first and second wire transfers, the Respondent continued to wire transfer investor monies to personal accounts, as instructed by Mr. Jones. Due to several nefarious individuals involved, all of the investor monies were lost in various fraudulent schemes.\\\"\\nVan der Spuy's money was wired to the account of E.F.S., Inc.Linda Flores, a supposed trader with Westminster Bank in London. Flores' corporation, a California corporation, was dissolved during the period that Flores was involved in an unrelated case involving fraudulent investments in 1996. It is unclear whether Flores' corporation was defunct during her dealings with Deer-field. In the pretrial order in the Virginia federal district court case, the parties stipulated that the respondent transferred the $100,000 to the Westminster Bank account for the benefit of Flores.\\nFisher's money was wired to the account of M.P.H. Williams, trustee for West Pacific Holdings, Inc.\\n*\\\"10. For at least two years before the Respondent had taken any investment monies into his possession, he knew that Mr. Jones and Ms. Gardner-Jones were persons of questionable financial means. In fact, at points in time, the couple had been evicted from their apartment and did not have sufficient credit to purchase or lease an automobile. On multiple occasions, the Respondent made loans to the couple to keep them financially afloat. Despite those warning signs, the Respondent continued to act upon the mere assurances of Mr. Jones and completely failed in his duty to protect the investors' monies.\\\"\\nThe respondent loaned money to Jones for several years. It appears that he began loaning money to Jones in 1993.\\n*\\\"11. On August 7, 2000, in the District Court of Shawnee County, Kansas, die Respondent was charged with having committed deceptive commercial practices, a class B misdemeanor, in violation of K.S.A. 21-4403. Thereafter, on September 28, 2000, die Respondent entered a nolo contendere plea to diat charge. On November 28, 2000, the District Court sentenced the Respondent to serve six mondis in die county jail. The District Court did not remand die Respondent to jail. Radier, the District Court placed die Respondent on supervised probation for 24 months. The District Court also ordered diat die Respondent pay court costs in die amount of $103.50, a fine of $1,000, and restitution of $65,000 (to Mr. Fisher). Finally, the District Court ordered diat the Respondent perform 200 hours of community service work.\\\"\\nIn his exceptions, the respondent noted that he pled nolo contendere to one count of committing deceptive commercial practices.\\nThe Hearing Panel's Conclusions of Law\\nBased on these findings, the panel came to the following conclusions as to violations (those to which the respondent has filed exceptions are marked with an asterisk):\\n*\\\"1. KRPC 1.15 establishes the procedures and requirements of maintaining an attorney trust account. Specifically, diat rule provides:\\n'(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from die lawyer's own property. Funds shall be kept in a separate account maintained in the state of Kansas . . . .'\\nAs emphasized above, attorneys are limited in using their trust accounts for monies received in connection with 'a representation.' By using his attorney trust account as a 'mere conduit' to filter the investment money through to Deerfield, die Respondent violated KRPC 1.15(a).\\n\\\"2. The Hearing Panel also concludes that the Respondent violated KRPC 4.1(b). That rule provides that:\\n'In die course of representing a client a lawyer shall not knowingly:\\n'(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by or made discretionary under Rule 1.6.'\\nIn diis case, die Respondent played many roles in die investment program. The Respondent served (1) as attorney for Deerfield, (2) as incorporator of Deerfield, (3) as registered agent for Deerfield, (4) as Secretary for the Board of Directors of Deerfield, (5) as Secretary/Treasurer of Deerfield, (6) as a shareholder of Deer-field, and (7) as trustee of the trust which initially held the monies to be invested by Deerfield in [sic] behalf of the investors. The Respondent was die sole signatory on die trust account. Additionally, the Respondent was the sole signatory of one of the Deerfield accounts. Finally, the Respondent was the only person who transferred die investors' money from die trust account to die Deerfield accounts, and from the Deerfield accounts to odier accounts. Because the Respondent failed to disclose to Mr. Van der Spuy and Mr. Fisher that he played various, and at times, conflicting roles in die investment program, and because the investment program was a sham, die Respondent 'fail[ed] to disclose a material fact to [die investors] when disclosure [was] necessary to avoid assisting . . . criminal or fraudulent act[s] by [Deerfield],' in violation of KRPC 4.1(b).\\n*\\\"3. Kan. Sup. Ct. R. 202 details the 'grounds for discipline,' in pertinent part, as follows:\\n'A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinaiy proceeding instituted against said attorney based upon the conviction or judgment. A diversion agreement, for die purposes of any disciplinaiy proceeding, shall be deemed a conviction of the crimes originally charged. All odier civil judgments shall be prima facie evidence of die findings made dierein and shall raise a presumption as to dieir validity. The burden shall be on die respondent to disprove die findings made in die civil judgment.'\\nIn order to determine whether a civil judgment is deemed 'conclusive' or 'prime facie evidence,' die standard of proof applied in die underlying judgment must be determined.\\n*\\\"4. The United State District Court for die Eastern District of Virginia, found die Respondent civilly liable for committing common law fraud, as defined by the state of Virginia. In Evaluation Research Corp. v. Alequin, 247 Va. 143, 439 S.E. 2d 387 (1994), the Virginia Supreme Court stated:\\n'One who advances a cause of action for actual fraud bears die burden of proving by clear and convincing evidence: (1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.'\\nId. at 148. Thus, the standard of proof required in cases involving common law fraud, as defined by the state of Virginia is clear and convincing evidence. Because the civil judgment entered by the United States District Court for the Eastern District of Virginia and affirmed by the United States Court of Appeals for die Fourth Circuit was based upon clear and convincing evidence, the civil judgment is 'conclusive evidence of die commission of that . . . civil wrong in any disciplinary proceeding instituted against said attorney based upon die . . . [civil] judgment.'\\n*\\\"5. The criminal conviction in die Shawnee County District Court is 'conclusive evidence of the commission of diat crime . . . in any disciplinary proceeding instituted against said attorney based upon the conviction. . . .' Kan. Sup. Ct. R. 202.\\n\\\"6. KRPC 8.4 provides definitions of professional misconduct. In pertinent part, that rule states that it is professional misconduct to:\\n'(b) commit a criminal act diat reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;\\n'(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;\\n'(d) engage in conduct that is prejudicial to the administration of justice;\\n'(g) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.'\\nBased upon the civil judgment of die United States District Court for the Eastern District of Virginia, and based upon the criminal conviction from the District Court of Shawnee County, Kansas, the Hearing Panel concludes diat the Respondent violated KRPC 8.4(b), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g).\\n\\\"7. The Deputy Disciplinary Administrator alleged in the Formal Complaint diat die Respondent also violated KRPC 1.8, KRPC 3.3, and KRPC 7.5(a). The Hearing Panel concludes diat the evidence does not support a finding diat die Respondent violated KRPC 1.8, KRPC 3.3, or KRPC 7.5(a). Therefore, the allegations in the Formal Complaint that the Respondent violated KRPC 1.8, KRPC 3.3, and KRPC 7.5(a) are dismissed.\\\"\\nDISCUSSION\\nThe respondent takes exception to various evidentiary rulings of the hearing panel, all of the panel's substantive conclusions, and some of the panel's findings. The exceptions taken by respondent present three issues for review: (1) Did the panel err by granting the disciplinary administrator's motion in limine? (2) Should we go behind a federal district court civil judgment against respondent grounded in fraud to examine whether the judgment was based on clear and convincing evidence? and (3) Was the panel's recommended discipline excessive?\\nThe applicable standards of review are as follows:\\n\\\" 'In disciplinary matters, we have a duty to examine die evidence and determine for ourselves die judgment to be entered. Although die report of the disciplinary panel is advisory only, it will be given die same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of die evidence, or where the evidence consisted of sharply conflicting testimony. [Citation omitted.] We apply these rules in considering die evidence, the findings of the panel, and die arguments of die parties in making our determination of whedier violations of KRPC exist, and if they do, deciding upon die appropriate discipline to be imposed.\\n\\\" 'Supreme Court Rule 211(f) (1997 Kan. Ct. R. Annot. 224) provides in applicable part: \\\"To warrant a finding of misconduct the charges must be established by clear and convincing evidence.\\\" Clear and convincing evidence is defined in Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816 (1979), to mean \\\"the witnesses to a fact must be found to be credible; die facts to which the witness testifies must be distinctly remembered; the details in connection widi the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and die witnesses must be lacking in confusion as to die facts in issue.\\\" ' \\\" In re Zimmerman, 270 Kan. 855, 858, 19 P.3d 160 (2001) (quoting In re Berg, 264 Kan. 254, 269, 955 P.2d 1240 [1998]).\\nThe Motion in Limine\\nThe respondent contends that he was denied a \\\"full and fair due process hearing\\\" when the panel issued an order in limine preventing him from presenting evidence in \\\"mitigation, extenuation, and explanation\\\" of his conduct. This contention lacks merit.\\nRule 202 (2000 Kan. Ct. R. Annot. 221) says, in part:\\n\\\"A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon die conviction or judgment. A diversion agreement, for the purposes of any disciplinary proceeding, shall be deemed a conviction of die crimes originally charged. All other civil judgments shall be prima facie evidence of the findings made therein and shall raise a presumption as to dieir validity. The burden shall be on the respondent to disprove the findings made in die civil judgment.\\\"\\nThe Disciplinary Administrator aptly notes that the respondent was not prevented from offering mitigating evidence. Rather, the panel's ruling attempted to prevent the respondent from mounting a collateral attack on his previous civil judgment and criminal conviction.\\nThe respondent notes that in the formal complaint, the Disciplinary Administrator referenced the judgment entered in the United States District Court for the Eastern District of Virginia and quoted excerpts from the trial transcript. The respondent's answer to the formal complaint alleged that tire Virginia judgment was erroneous for failure to comply with Fed. R. Civ. Proc. 52(a), which requires that the court make specific findings of fact and conclusions of law. He argued that the \\\"Court's rhetoric and hyperbole do not constitute 'findings of fact' nor are they based on 'clear and convincing evidence.' \\\"\\nThe Disciplinary Administrator filed a motion in limine, in which he requested that the hearing panel prohibit the respondent \\\"from testifying or eliciting testimony, or making argument, in an effort to impeach the civil judgments and decisions by the United States District Court for the Eastern District of Virginia and the United States Court of Appeals for the Fourth Circuit.\\\"\\nIn State v. Russo, 230 Kan. 5, 8, 630 P.2d 711 (1981), Russo contended that he was innocent of the charges against him. We said: \\\"[0]nce that conviction became final, it is conclusive upon this court and this court will not look behind the conviction or attempt to weigh the evidence leading to that conviction.\\\" 230 Kan. at 8.\\nThe record shows that in the Virginia civil case, Pieter M. Van der Spuy v. Deerfield Holding Co., Inc.; Cecil P. Jones; Deborah L. Gardner and Fred W. Rausch, Jr., (Case No. 2:96cv1233), the federal district court for the Eastern District of Virginia used the evidentiary standard of clear and convincing evidence in finding the respondent liable for common-law fraud. The judgment was affirmed by the Fourth Circuit Court of Appeals. (Case Nos. 98-1027 and 98-1182, filed August 12, 1998.)\\nIn its order granting the motion in limine, the panel examined whether a collateral attack of the civil judgment and criminal conviction were admissible. Although the respondent did not specifically challenge the criminal conviction in his answer, the hearing panel addressed that conviction in its order granting the motion in limine. Citing Evaluation Research Corp. v. Alequin, 247 Va. 143, 148, 439 S.E.2d 387 (1994), the panel noted that in Virginia, the standard of proof required in cases involving common-law fraud is clear and convincing evidence. It found that because the civil judgment entered by the United States District Court was based upon clear and convincing evidence, the judgment was conclusive evidence of the commission in the disciplinary proceeding against the respondent under Rule 202. It also found that the criminal conviction in Shawnee County District Court was conclusive evidence of the commission of the criminal wrong in the disciplinary proceeding. Thus, the panel concluded that collateral evidence attacking the conviction and judgment were irrelevant and inadmissible. We agree.\\nThe respondent cites State v. Phelps, 226 Kan. 371, 380, 598 P.2d 180 (1979), cert. denied 444 U.S. 1045 (1980), where we said: \\\"The panel hearing is a type of discovery, with lenient rules to permit respondent to present any defense he might have to the complaint.\\\" However, we rejected Phelps' claim that the panel denied him due process by denying his motion for discovery. We noted with approval Matter of Murray, 266 Ind. 221, 362 N.E.2d 128 (1977), an Indiana case holding denial of discovery in a disciplinary proceeding is not an unconstitutional denial of due process. 226 Kan. at 380.\\nThe respondent also observes that in Russo, we cited In the Matter of Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975), disavowed by Aetna Casualty & Surety Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356 (1985). Alger Hiss petitioned the Massachusetts Supreme Court for reinstatement to the bar. The Hiss court observed that Hiss' conviction and subsequent disbarment were \\\" 'conclusive evidence of his lack of moral character at the time of his removal from office.' \\\" 368 Mass. at 451. However, the Hiss court noted that \\\"in some civil proceedings, we permit retrial of factual issues adjudicated previously in criminal cases,\\\" but it found that the situation was different in Hiss' case. 368 Mass. at 450 (citing Silva v. Silva, 297 Mass. 217, 218, 7 N.E.2d 601 (1937), disavowed by Aetna Casualty & Surety Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356 (1985).) The respondent fails to recognize that Silva and Hiss were reversed by Aetna Casualty & Surety Co. v. Niziolek, 395 Mass. 737, 742, N.E.2d 1356 (1985). Aetna Casualty held that \\\"a party to a civil action against a former criminal defendant may invoke the doctrine of collateral estoppel to preclude the criminal defendant from relitigating an issue decided in the criminal prosecution.\\\" 395 Mass. at 742.\\nThe respondent asks this court to make an exception where an attorney's license to practice law is at stake. He contends that he wanted to provide \\\"evidence byway of mitigation, extenuation, and explanation as to his conduct,\\\" but it appears that he merely attempted to attack the federal civil judgment. Rule 202 and Kansas precedent do not permit us to look behind respondent's criminal conviction and civil judgment. The panel did not err in granting the motion in limine.\\nThe Hearing Panel's Recommendation of a 2-year Suspension\\nThe respondent contends that the hearing panel failed to apply the proper standard for imposing lawyer sanctions in recommending a 2-year suspension. In other words, the respondent argues that the panel's recommended disciplinary action was excessive. We disagree.\\nThe hearing panel made the following recommendation for discipline:\\n\\\"In making tills recommendation for discipline, the Hearing Panel considered die factors outlined by die American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, die factors to be considered are die duty violated, the lawyer's mental state, die potential or actual injury caused by die lawyer's misconduct, and die existence of aggravating or mitigating factors.\\n\\\"Duty Violated. The Respondent violated his duties to die public, to the legal system, and to the legal profession.\\n\\\"Mental State. The Respondent knowingly violated his duties to the public, to die legal system, and to the legal profession.\\n\\\"Injury. The Respondent's misconduct caused actual injury to diird persons.\\n\\\"Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors diat may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, die Hearing Panel, in diis case, found die following aggravating factors present:\\n\\\"Selfish Motive. The Respondent plainly testified that he remained in the Deer-field 'scheme' because he thought that this was a way for him to make a large sum of money while putting forth very little effort.\\n\\\"Pattern of Misconduct. In this case, diere were several separate investors. With regard to each of die investors, die Respondent committed similar misconduct. Accordingly, die Hearing Panel concludes that die Respondent engaged in a pattern of misconduct.\\n\\\"Multiple Offenses. The Respondent violated KRPC 1.15, KRPC 4.1, KRPC 8.4(b), KRPC 8.4(c), KRPC 8.4(d), KRPC 8.4(g). As such, the Hearing Panel concludes that the Respondent engaged in multiple offenses.\\n\\\"Vulnerability of Victim. The victims in this case included elderly investors who were citizens of South Africa.\\n\\\"Substantial Experience in the Practice of Law. The Respondent was licensed to practice law in 1949. At die time he committed the misconduct, die Respondent had been practicing law for 46 years.\\n\\\"Illegal Conduct. The Respondent engaged in illegal conduct, and, as a result, was convicted of deceptive commercial practices, a class B misdemeanor.\\n\\\"Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found die following mitigating circumstances present:\\n\\\"Absence of Prior Disciplinary Record. During the Respondent's legal career, which spans 51 years, die Respondent was never previously disciplined.\\n\\\"Previous Good Character and Reputation in the Community Including Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of die bar in Topeka, Kansas. He enjoys die respect of his peers, clients, and friends, and generally possesses a good character and reputation as evidenced by die testimony presented and by the many letters received by die Hearing Panel regarding die factors in mitigation.\\n\\\"Remorse. The Respondent expressed remorse diat die investors lost dieir money. The Respondent testified diat he has continued to pursue litigation in an attempt to recover the investors' monies.\\\"\\n\\\"In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 5.12. That standard provides, in pertinent part:\\n'Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain die elements in Standard 5.11 and diat seriously adversely reflects on die lawyer's fitness to practice.'\\n\\\"The Hearing Panel unanimously recommends diat Respondent be suspended for a period of two years.\\n\\\"Costs are assessed against die Respondent in an amount to be certified by die Office of the Disciplinary Administrator.\\\"\\nThe dominant question here is whether the recommendation of a 2-year suspension is excessive. The respondent acknowledges that his conduct \\\"appears to be negligent and careless.\\\" However, he contends that the facts show that he was \\\"duped, and did not knowingly or intentionally defraud or deceive anyone.\\\" He argues that the recommendation of a 2-year suspension in inappropriate, even assuming that he committed the violations as found by the panel.\\nThe respondent points out that Van der Spuy did not file a disciplinary claim against him. However, as noted by the hearing panel, Van der Spuy did file a civil complaint against the respondent in the United States District Court for the Eastern District of Virginia. The record shows that judgment, affirmed on appeal, was rendered against respondent in favor of Van der Spuy for federal common law fraud, Virginia common law fraud, federal mail fraud, and breach of contract.\\nThe respondent also recognizes that under KRPC Rule 202 (2000 Kan. Ct. R. Annot. 221), the Virginia civil judgment and his misdemeanor conviction in Shawnee County, Kansas, were to be considered by the hearing panel. However, he questions the appropriateness of the discipline of a 2-year suspension.\\nDisputing that he acted \\\"knowingly\\\" or that his conduct \\\"seriously adversely\\\" reflects on his fitness to practice law, the respondent argues that ABA Standard 5.13 provides a more appropriate form of discipline. Standard 5.13 says:\\n\\\"Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer s fitness to practice law.\\\"\\nThe respondent asserts that his situation is comparable to the one in In re Kershner, 250 Kan. 383, 827 P.2d 1189 (1992). Kershner was convicted of 4 felony violations of the Kansas Securities Act. (2 counts of violating K.S.A. 17-1254 by offering for sale shares of stock of a corporation when he was not registered as a broker-dealer or agent and 2 counts of violating K.S.A. 17-1255 by offering for sale or selling shares of stock in a corporation when such security was not registered). 250 Kan. at 383-84. Kershner also failed to file his attorney registration fees for the years 1985-90; however, the Disciplinary Administrator said that he did not perceive this failure to be a significant issue because Kershner was not practicing law during those years. In addition, Kershner failed to appear before the hearing panel. (He said he never received notice of the hearing.) 250 Kan. at 386.\\nThe Kershner hearing panel recommended disbarment finding that he violated the Model Rules of Professional Conduct (MRPC) 8.4(b), (c), and (g). 250 Kan. at 387. We found that the fact that Kershner was convicted of 4 felony violations of the Kansas Securities Act was sufficient to show a violation of MRPC 8.4(b). Under those facts, we concluded that since there was a violation of 8.4(b), his felony convictions could not also be \\\"other conduct that adversely reflects on his fitness to practice law\\\" and a violation of 8.4(g). We found no violation of 8.4(c). 250 Kan. at 388.\\nWe acknowledged that under the facts, Kershner's convictions were not acts of violence, dishonesty, or a breach of trust or a serious interference with the administration of justice. In addition, the district court found that there were no victims to compensate. Thus, a majority found that disbarment was excessive and, instead, imposed public censure. 250 Kan. at 392.\\nThe Disciplinary Administrator points out that we have said that comparison of past sanctions imposed in disciplinary cases gives little guidance. See In re Bailey, 268 Kan. 63, 64-65, 986 P.2d 1077 (1999). We evaluate each case based on its specific facts and circumstances. 268 Kan. at 65.\\nHere, the panel found that the respondent violated KRPC 8.4(b), (c), (d), and (g), \\\"[b]ased upon die civil judgment of the United States District Court for the Eastern District of Virginia, and based upon the criminal conviction from the District Court of Shawnee County, Kansas.\\\" The respondent asserts that under Kershner, if his convictions are sufficient to show a violation of KRPC 8.4(b), the convictions cannot also be \\\"other conduct\\\" and a violation of KRPC 8.4(g). See 250 Kan. at 388. We agree. The Disciplinary Administrator correctly observes that Kershner does not hold that an attorney can never be found in violation of both 8.4(b) and 8.4(g). However, under the facts here, where the respondent's convictions form the basis for the alleged violations of 8.4(b) and 8.4(g), the respondent cannot be found in violation of both subsections.\\nKRPC 8.4(b)\\nClear and convincing evidence supports the finding that the respondent violated KRPC 8.4(b) (2000 Kan. Ct. R. Annot. 420) (committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer). With respect to KRPC 8.4(b), the respondent does not argue that there is no violation. He merely points out that in pleading nolo contendere, he side-stepped the threat of prosecution for three felony violations of the Kansas Securities Law, K.S.A. 2000 Supp. 17-1253. He notes that he entered a plea to deceptive commercial practice, under K.S.A. 21-4403, a class B misdemeanor in order to avoid trial. The conviction stands. It is well established that \\\"once [a] conviction [becomes] final, it is conclusive upon this court and this court will not look behind the conviction or attempt to weigh the evidence leading to that conviction.\\\" Russo, 230 Kan. at 8. See Kershner, 250 Kan. at 390. There is no question that the civil judgment for fraud against respondent and his criminal conviction for deceptive commercial practice are sufficient to show a violation of KRPC 8.4(b).\\nKRPC 8.4(d)\\nWith respect to KRPC 8.4(d) (2000 Kan. Ct. R. Annot. 420) (engaging in conduct that is prejudicial to the administration of justice), the respondent argues that there is no violation because his conduct did not involve an attorney-client relationship. He provides no authority for this assertion. When a point is incidentally raised but not argued, it is deemed abandoned. McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994).\\nKRPC 1.15\\nThe respondent contends that he did not violate KRPC 1.15 (2000 Kan. Ct. R. Annot. 360) (safekeeping property). The panel found that the respondent violated 1.15(a), which says:\\n\\\"A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state of Kansas.\\\" (Emphasis added.)\\nThe panel noted that in subsection (a), attorneys are limited to using their trust accounts for funds received in connection with \\\" 'a representation.' \\\" It concluded that the respondent violated the subsection because he used his attorney trust account as a \\\" 'mere conduit' to filter the investment money through to Deerfield.\\\"\\nIn his brief, the respondent does not deny that he used his attorney account as such a conduit. Rather, he argues that the investors gave Jones, president of Deerfield, \\\"irrevocable, carte blanche\\\" power of attorney to \\\"direct the disposition of their funds.\\\" The respondent argues that he merely acted under the authority and direction of Jones.\\nThe record shows that the respondent did not have an attorney-client relationship with the investors. Rather, he acted at times as the attorney for Deerfield. In addition, he was aware of Jones' personal financial struggles and had loaned him around $31,000 over a period of at least 2 years. He knew that Woolacott also loaned money to Jones. After not having received guarantees upon transfer of funds, the respondent continued to wire transfer investors' money at the request of Jones. Clear and convincing evidence supports the finding that the respondent violated KRPC 1.15(a).\\nKRPC 4.1\\nThe respondent also contends that he did not violate KRPC 4.1 (2000 Kan. Ct. R. Annot. 398). The panel found that he violated KRPC 4.1(b), which says:\\n\\\"In the course of representing a client a lawyer shall not knowingly:\\n\\\"(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by or made discretionary under Rule 1.6.\\\"\\nThe respondent argues that his actions did not involve client representation and, thus, did not constitute a violation of KRPC 4.1(b). What he fails to note is that he did act as an attorney for Deerfield.\\nAs the panel pointed out, the respondent played many roles in the investment program:\\n\\\"(1) as attorney for Deerfield, (2) as incorporator of Deerfield, (3) as registered agent for Deerfield, (4) as Secretary of the Board of Directors of Deerfield, (5) as Secretary/Treasurer of Deerfield, (6) as a shareholder of Deerfield, and (7) as trustee of the trust which initially held the monies to be invested by Deerfield in [sic] behalf of the investors.\\\"\\nThe respondent was the sole signatory on the trust account. He was also the sole signatory on one of the Deerfield accounts. The respondent was the only person to transfer the investors' funds from the IOLTA account to Deerfield and then transfer them from Deerfield to other accounts. The panel observed that the respondent failed to disclose his various roles to Van der Spuy and Fisher. Clear and convincing evidence supports a finding that the respondent violated KRPC 4.1(b).\\nUnder the facts, unlike the situation in Kershner, the respondent's convictions for fraud and deceptive commercial practice were acts of dishonesty, fraud, or deceit. The convictions also reflected adversely on his honesty and trustworthiness. The record shows that there were victims to compensate because of the illegal acts. See also In re Lucas, 269 Kan. 785, 786-87, 795, 7 P.3d 1186 (2000) (finding 2-year suspension was an appropriate sanction for an attorney who misrepresented to other lawyers in his putative law firm that he had closed a client trust account and then used the account to deposit attorney fees that he had agreed to share with other lawyers in the firm).\\nWe have said: \\\"Misappropriating client funds is one of the gravest offenses against the public trust a lawyer can commit. Suspension is an appropriate discipline.\\\" In re Shumway, 269 Kan. 796, 808, 8 P.3d 735 (2000) (suspending the respondent's law license for 1 year). Here, the victims were not clients. However, the respondent was a trustee for the victims and placed their funds into his IOLTA account. He then transferred the funds to Deerfield, a corporation in which he was an officer and shareholder, and to accounts in England, after which the money was lost. Given the facts of this case, a 2-year suspension is not excessive.\\nThe panel's report is thorough and well reasoned. We find that the panel's findings and conclusions as modified herein are supported by clear and convincing evidence.\\nIt Is Therefore Ordered that Fred W. Rausch, Jr., is hereby suspended from the practice of law in the State of Kansas for a period of 2 years from the date of this opinion.\\nIt Is Further Ordered that respondent shall comply with Supreme Court Rule 218(a) (2000 Kan. Ct. R. Annot. 266), and, at the end of the 2-year suspension, respondent will be reinstated upon furnishing proof of compliance thereof to the Clerk of the Appellate Courts.\\nIt Is Further Ordered that the costs of this proceeding be assessed to the respondent, and that this opinion be published in the official Kansas Reports.\\n\\\"5 The Respondent admitted during his testimony and in previous correspondence that die trust was a 'mere conduit' to filter die investment money through to Deerfield.\\\"\"}"
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+"{\"id\": \"74049\", \"name\": \"Robert C. Postlethwaite, as Administrator, etc., Appellee, v. Frank P. Edson and Jessie L. McCabe, Appellants\", \"name_abbreviation\": \"Postlethwaite v. Edson\", \"decision_date\": \"1917-12-08\", \"docket_number\": \"No. 21,131\", \"first_page\": 104, \"last_page\": \"115\", \"citations\": \"102 Kan. 104\", \"volume\": \"102\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:11:57.277848+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert C. Postlethwaite, as Administrator, etc., Appellee, v. Frank P. Edson and Jessie L. McCabe, Appellants.\", \"head_matter\": \"No. 21,131.\\nRobert C. Postlethwaite, as Administrator, etc., Appellee, v. Frank P. Edson and Jessie L. McCabe, Appellants.\\nSYLLABUS BY THE COURT.\\n1. Construction op Will \\u2014 Life Estate \\u2014 Remainder to Children. The former opinion (Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802) remains as the deliberate holding of this court.\\n2. Same \\u2014 Judgment against Testator \\u2014 Homestead \\u2014 Land Subject to Payment of Testator\\u2019s Debts. A husband and wife mutually willed their property, including a homestead, to their survivor for life with power of disposal, remainder to their children. It was occupied by the devisors, and by the surviving wife until her decease, the children then having homes elsewhere and not occupying the land devised. A judgment obtained against the father was kept alive as to his estate by revivor against his administratrix. Held, that the children took the land freed from its homestead character, and it could by this suit be subjected to the payment of the judgment.\\n3. Same. The homestead character of real estate depends on family occupancy \\u2014 not on the source of title.\\n4. Same \\u2014 Judgment Lien \\u2014 Interest of Judgment Debtor in Land. Only ' the interest of the judgment debtor could be appropriated, and it was error to sustain a demurrer to that part of the amended answer setting up that the homestead was acquired by the joint efforts and money of the husband and wife, and held by them as tenants in common.\\n5. Same \\u2014 Unambiguous Will \\u2014 How Construed. The will not being ambiguous the trial court correctly refused evidence explanatory of the devisor\\u2019s intentions, and properly struck from the answer allegations of what such intentions were.\\n6. Will \\u2014 Not Alienation of Homestead. The will was not an alienation or conveyance of the homestead.\\nAppeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.\\nOpinion filed December 8, 1917.\\nModified.\\nEugene S. Quinton, of Topeka, for the appellants.\\nT. F. Garner, and R. D. Garner, both of Topeka, for the appellee.\", \"word_count\": \"4866\", \"char_count\": \"27469\", \"text\": \"The opinion of the court was delivered b,y\\nWest, J.:\\nWhen this case was here before, it was stated in the brief of the plaintiff: 'Defendants do not claim any homestead rights.\\\" (p. 10.) In the defendants' brief were the following statements:\\n\\\"The appellants claim that the instrument is a joint will by which Mary Edson took a life estate with a remainder to Frank P. Edson and Jessie L. McCabe, and if so the property is subject to be taken in this action.\\n\\\"It is admitted that Frank P. Edson and Jessie L. McCabe . . . had never resided upon or occupied this property as a homestead for a long time prior to all matters herein presented.\\n\\\"If the absolute fee simple title and homestead right did pass, under this mutual will, upon the death of Willis Edson to Mary Edson, the survivor, then it must follow that Frank P. Edson and Jessie L. McCabe inherited that legal title and the property directly and fully and completely, from Mary Edson, against whom there were no claims or debts. From the death of Willis Edson to the death of Mary Edson, this property, as a homestead, remained clear and free from the claims of any creditors or either of them. If so, then the legal title to this homestead having vested upon the death of Willis Edson in Mary Edson, that too must have remained clear and free, with the homestead right, from the claims of creditors, there being no claims or debts of Mary Edson at her death. The same unincumbered title and property must of necessity have passed unincumbered to the heirs, Frank P. Edson and Jessie L. McCabe. This conclusion is inevitable, if, as a matter of law the legal title to this homestead, by virtue of this mutual will, passed unincumbered to Mary Edson.\\n\\\"So, in this case, under the mutual will, the homestead and legal title thereto vested in the survivor clear and free from the debts of the deceased husband. Having once, then, vested free from debts in an innocent party or purchaser, it could not be divested.\\\" (pp. 6, 9\\\"12,17.)\\nThese quotations are made to demonstrate that the controversy when first here centered on the question whether the survivor took a fee or a life estate with power of disposal, remainder to the children, and that it was then insisted that if the former, the homestead character of the land remained even when inherited by the children, who did not claim to occupy it as a homestead. Hence in the opinion (Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802) it was said:\\n\\\"Mary Edson survived her husband, remaining in possession of the homestead during her life. She left the defendants as her sole heirs who claim no homestead rights. The plaintiff takes the position that the will devised a life estate to Mary Edson with full power of disposition, remainder to the defendants, and if this be the proper construction it is conceded that the property is subject to be taken in this action.\\\" (p. 445.)\\nIn the elaborate petition for a rehearing there was no' complaint of this statement.\\nNear the,close of the opinion it was said:\\n\\\"It is fairly clear that the intention was that the survivor should have complete dominion over the estate during her life, including the full power of disposition, but that as she would be likely to retain the estate or portion thereof such portion was to vest personally in the children to take effect at her death, that is, the present estate in such portion was to vest in her for life with the power of disposition, remainder to the children.\\\" (p. 451.)\\nThis conclusion, reached after a painstaking examination and consideration, we are satisfied with and it must remain as the deliberate holding of. this court.\\nThe case was first here on appeal from an order overruling a demurrer to the answer. When it reached the lower court the defendants amended their answer, parts of which were stricken out on motion of the plaintiff and a demurrer to the remainder was sustained, from which orders this appeal is taken. Hence, the question now before us is the claimed error in such ruling. The parts stricken out amounted to an allegation that the Edsons talked over the making of the will and expressed their intentions and desires, counseled with an experienced lawyer who drew the instrument and suggested a certain addition with which the testators were .pleased. In other words, the trial court refused to permit the defendants to go into the conversations and intentions of the makers of the will, on the theory doubtless that it is plain on its face and needs no extrinsic aid for its proper construction. The remainder of the amended answer pleaded the homestead character of the land devised while occupied by the parents or their survivors, the separate homes elsewhere occupied by the defendants, that the homestead was procured by the joint efforts of the devisors and held by them as tenants in common.\\nError is assigned on sustaining a demurrer to all of the remaining answer except the general denial, because the judgment of the plaintiff was never a lien on this property; because the judgment was not against Mary Edson, the joint owner with her husband of the homestead; because the will is ambiguous and susceptible to explanation of the intention of its makers, and because it carried a fee to their survivor. The last reason is disposed of by the former decision. The first may be conceded, this suit being brought for the very purpose of subjecting the land, to the payment of the plaintiff's judgment, which would be idle if it were already a lien thereon. This leaves only the second and third for consideration \\u2014 the effect of the alleged one-half or joint ownership by Mrs. Edson, and the claimed ambiguity of the will.\\nA \\\"partial transcript\\\" before us contains the following:\\n(Counsel for plaintiff): \\\"It is admitted that'the title of record to the lots described in the petition was in Willis Edson at the time of his death and at that time and some time previous said premises had been occupied by Willis Edson and his wife as their residence and homestead.\\n(Counsel for defendants) : \\\"That is all right.\\n(Mr. G.) : \\\"It is further admitted Mary Edson elected to take under the will as probated, and thereafter, in April, 1914, died without having-made any other disposition of said property.\\n(Mr. Q.) : \\\"That last statement in there I want taken out, 'without having made any other disposition of her property.'\\n(Mr. G.) : \\\"I offer in evidence the original answer filed in this case by the defendants, which states some of these facts.\\n\\\"I offer the inventory filed in the probate court by Mary Edson as administratrix of the estate of Willis Edson, deceased.\\n(Mr. Q.) : \\\"I object to it as incompetent, irrelevant and immaterial and not the best evidence.\\n(The Court) : \\\"Overruled.\\n\\\"The inventory in question is in substance as follows, to wit:\\n\\\"I, Mary Edson, residing at Topeka, Kansas, administrator of the estate of Willis Edson, deceased, do hereby make and return upon oath the following inventory of all the moneys of the deceased which are by law to be administered and which has come into my possession or knowledge and also of all the real estate of the deceased. I further declare upon oath that the estate of said deceased consists only of the property herein scheduled and listed, to wit: Except household goods exempt under the law.\\n\\\"Lots 246 and 248 Eighth avenue, Topeka, Shawnee County, Kansas, $3,750.\\\"\\nBut aside from all this, and conceding for the moment only that the property was acquired and owned by the parents as alleged, it was still the subject of their testamentary direction, and as already construed their mutual will gave to the sur vivors a life estate with power of disposal, remainder to the children. True, while the homestead of the devisors or their survivor, it was property towards which the eye of their creditors could be turned in vain, but had it ceased to be such homestead by abandonment it would thereby have become like any other property they may have owned, subject to their debts. While they could not have defrauded their creditors by selling to a stranger, this is because while still occupied by them it was exempt. Again, had the survivor died leaving the children in possession as part of her family, it would still have been exempt, not only from the debts of the devisors, but from the debts of the children so long as they might rightfully continue to occupy the property as their homestead. The entire theory of homestead exemption is the setting apart of real estate free from the claims of creditors, not the giving to any family or heirs the right to have a homestead and claim also as exempt other real estate because inherited from or devised by those whose homestead it was.\\nIt has been held that when a husband with his own money purchases land in his wife's name for the purpose of placing it beyond the reach of his creditors and then makes improvements thereon and occupies it with his family as a homestead, such transactions are not fraudulent as to subsequent creditors of the husband. And that in such case it makes no difference whether the husband or wife owned the money or in whose name (of the two) the title was taken. Hixon v. George, 18 Kan. 253. In Ashton v. Ingle, 20 Kan. 670, it was decided that a judgment against an owner of nonexempt real estate attaches thereto although at the time of the levy it may be occupied as the homestead of the owner. In Dayton v. Donart, 22 Kan. 256, an owner of a homestead died intestate leaving many debts and no personal property with which to pay them, and no other real estate. It was held that the title descended to the widow and children just the same as if it were not occupied as a homestead,\\n\\\"except that it descends to them subject to a certain homestead interest vested in the widow and such of the children as 'occupy the homestead at the time of the intestate's death.\\\" (Syl. \\u00b6 1.)\\nThat if the property be sold while still occupied as a homestead by the widow and one or more of the. children the title passes to the purchaser free from debts, although the property may afterwards be abandoned as a homestead by the widow and children. In the opinion it was said:\\n\\\"But evidently from the statutes they hold the property as their absolute property, free from debts and division only while some of them occupy the same as their homestead. If they all abandon the property as a homestead, it then becomes subject to debts and division the same as though it never was a homestead. This homestead right is probably just like any other homestead-exemption right, except that it is held by the occupants (prior to the widow's marriage, and prior to all the children's reaching their majority) free from division or partition, as well as free from debts; and when it is abandoned as a homestead (if not previously sold), it becomes liable for the intestate's debts.\\\" (p. 270.)\\nStratton, Adm'r, v. McCandliss, 32 Kan. 512, 4 Pac. 1018, was to the effect that a homestead left by the husband and occupied by the widow as a homestead until her decease was thereupon subject to sale for the payment of the owner's debts. In another case the homestead owner died leaving a widow and several children all of whom had reached majority. He had devised one-half to the widow and one-quarter to the son who resided upon the homestead until partition by which the widow was allotted one-half the homestead, the son one-quarter and the remaining one-quarter set off to the other heirs. The widow sold her portion and abandoned the homestead. The heirs to whom the one-quarter was awarded never resided upon the homestead and after the abandonment by the widow their one-quarter was unsold and unoccupied. The personal property left by the deceased was insufficient to pay the debts of the estate, and it was held that the one-quarter last mentioned was subject to sale for the payment of debts and cost of administration. (Barbe v. Hyatt, 50 Kan. 86, 31 Pac. 694.) In the opinion it was said:\\n\\\"It has been settled that the death of the owner of the homestead does not transfer the title absolutely and uncondition\\u00e1lly to the widow and children. It descends to them the same as other real estate owned by the deceased, except that it is subject to the homestead interests.' So long as it retains its homestead character it cannot be sold to pay ordinary debts, nor can there be a compulsory division and distribution. While it is so occupied it may be conveyed by the persons in whom the homestead interests vest, and the title to the property or any interest therein will pass free from any liability for the ordinary debts of the estate. Abandonment by them, however, will destroy the homestead interest, and when it is abandoned it becomes subject to the debts of the estate, the same as other lands which were never impressed with the homestead character.\\\" (p. 89.)\\nIn Allen v. Holtzman, 63 Kan. 40, 64 Pac. 966, the husband died leaving a will devising the property to the wife, who elected to take thereunder and mortgaged the land while occupying it with her children, to secure a personal debt, and it was held that such mortgage was a valid incumbrance. It was said in the opinion:\\n\\\"After the husband's death and the election of the wife to take under th$ will, she took the whole estate. The children got none. Their homestead rights in the Iknd were no greater after the death of their father than before.\\\" (p. 41.)\\nIn Cross v. Benson, 68 Kan. 495, 75 Pac. 558, the widow who continued to occupy the homestead after the death of her husband was held to be entitled to so occupy the land free from forced sale for the payment of the husband's debts, and to so do after electing to take under his will devising the homestead to her. When a wife after the death of her husband occupies the homestead alone it is exempt as to her own creditors, as 'well as those of her husband's estate, regardless of which spouse held the legal title. (Weaver v. Bank, 76 Kan. 540, 94 Pac. 273.)\\nIt is insisted that the land cannot be appropriated to the payment of the judgment because the latter has not been revived against the defendants. It was revived' against Mary Edson, as administratrix, July 8, 1912. She died April 4, 1914, and this suit was begun May 4, 1914. Whatever estate Willis Edson left was, unless exempt, subject to appropriation for the payment of his debts. Mary Edson by his will took the property devised to her thus burdened, unless exempt, and thus subject when such exemption should cease. By the same mutual will the property passed to the children and would have continued exempt from the debts of Willis Edson had it been and continued to be the children's homestead. But as they did not occupy it they took it subject to the debts of their father, the judgment against his estate having been kept alive. The judgment, if not a lien on the land, could be made one because the homestead shield had been lowered by the cessation of homestead occupancy. Had they by the will taken other land on which no claim of homestead could have been made they would, of course, have taken it burdened with liability to appropriation for the payment of his debts. Having taken this land, to which no homestead claim could longer be made, they took it also thus burdened.\\nBut it is urged that this could at most be true only as to such interest as Willis Edson actually owned, and that if he owned but a half interest this is all that could be appropriated; hence, the importance of permitting the defendants to show such half ownership only. It is true that only the actual interest owned by the judgment debtor could be reached. (Hixon v. George, 18 Kan. 253; Holden v. Garrett, 23 Kan. 98; McCalla v. Knight, 77 Kan. 770, 94 Pac. 126; Emery v. Bank, 97 Kan. 231, syl. \\u00b6 3, 155 Pac. 34.)\\nWhile it is vigorously asserted, and as vehemently denied, that evidence as to ownership was received under the general denial, the supplemental abstract contains the statement that none was introduced. The defendants had a right to show if they could that their father owned only one-half the land, for in that event their loss by its appropriation to the payment of his debt would be cut in two.\\nIt was error, therefore, to sustain the demurrer to this part of the amended answer.\\nBut it is insisted that Willis Edson could have deeded the property, freed from its homestead character, and by his will he accomplished the same thing, and, therefore, vested the title in his wife freed from the claims of his creditors; and that the children also took the property thus freed. As counsel says in his brief\\u2014\\n\\\"If the fee title passed to the children and a life estate only to the wife, it still was a 'disposition' of the property while occupied as a homestead, that transferred the fee to the same free from debts of creditors.\\\"\\nIn his reply brief he asserts that\\u2014\\n\\\"The homestead may be transferred to the children by a will, free from debt, the same as it may be made a gift to a stranger.\\\"\\nIn Dayton v. Donart, 22 Kan. 256, it was said:\\n\\\"They say that the first moment of bona fide occupancy by the widow and children so fixed the title in the occupants that no subsequent abandonment by them would have the effect to expose the property to liability for the payment of Church's debts. Now, if mere occupancy alone for any period of time, long or short, could have the effect to so free the land from liability for Church's debts that no subsequent abandonment of the premises would expose them to such liability, we should think that under the statutes a moment's time would be just as good as any longer period of time. But in our opinion no period of time, however long, is sufficient to give absolute title, free from debts, if the debts remain unpaid and not barred by the statute of limitations.\\\" (p. 268.)\\nIn Comstock v. Adams, 23 Kan. 513, the court had under consideration section 8 of the descents and distributions act providing that one-half in value of the husband's estate of which the wife had made no conveyance shall be set apart, etc.\\nIt was argued that the term conveyance should be given its broad and general sense, so as to include the conveyance of the property by will, but the court said:\\n\\\"The word 'conveyance', as used in the proviso of said section 8, clearly does not include a will.- A will is never a conveyance. A conveyance operates in the lifetime of the grantor, while a will does not operate until after the death of the maker. Of course, death transfers all property, and a will says where it shall go; but this does not render a will 'a conveyance,' 'which the husband has made.' It is the death that transfers the property.\\\" (p. 524.)\\nIn Martindale v. Smith, 31 Kan. 270, it was held that a husband could make a valid will giving a homestead to his wife, and that as against an heir who did not occupy the property as a homestead it would take effect immediately after the death of the testator and after the probate of the will, although the- will stated that the testator devised the property to his wife, after paying all his legal debts. In the opinion it was said:\\n\\\"When death occurs, the title to the property of the person dying must be transferred to some person. It cannot remain in the deceased; and the will simply designates where the title shall go.\\\" (p. 273.)\\nThe claim of counsel that the will could not take effect until the payment of the debts was thus disposed of:\\n\\\"As against George Waybright, the heir and his grantees, we think the will took effect immediately after the death of the testator and the probate of the will, and such death and will immediately transferred the title to the property to the testator's wife, subject possibly to the payment of the debts of the deceased, and subject possibly to his wife's homestead interests.\\\" (p. 274.)\\nThe language last quoted leaves the question now before us quite open.\\nIn Vining v. Willis, 40 Kan. 609, 20 Pac. 232, a husband and wife occupied the homestead owned by her, the title being in hex' name, she having no children, and it was held that she eoxxld by will, without her husband's consent, devise a one-half interest to a third person, so that after her death such third person could take such interest. It was argued that the will amounted to an alienation of the estate, which could only be accomplished by the joint consent of the husband.and wife,\\n\\\"We think these views are utterly untenable. A will never divests th\\u00a9 owner of his property or of any interest therein. No interest passes by the will to the intended devisee; nothing that he can sell, or transfer, orincumber; nothing that will pass from him to heirs or that he can devise or bequeath; and the will may be revoked by the testator-immediately after its execution or at any time afterward and before his death. A person might execute a thousand wills for the same property, yet no one of such wills would transfer anything; but when the testator should die the devisee mentioned in the last will executed would, under and by virtue of the statutes, take the property. It would not be the will, however, but death that would take the property from the testator; and it would be death, the statutes, and the will, all operating together, that would confer the property upon the devisee.\\\" (p. 611.)\\nSection 8262 of the General Statutes of 1915 provides that in case any person be imprisoned for life his estate shall be disposed of as if he were naturally dead.\\nIn Smith v. Becker, 62 Kan. 541, the meaning of the words \\\"disposed of\\\" were construed and it was said:\\n\\\"The words 'disposed of' are not in our judgment broad and comprehensive enough to reach to and embrace that act of the law which vests the ownership of property in an heir by inheritance. . . . It is an inapt expression to say that when an estate is cast by descent on .the heir by the death of the owner it has been disposed of.\\\" (pp. 542, 543.)\\nA California decision was cited to the effect that a statute giving the husband absolute power to dispose of community property ought not be extended to a disposition by devise.\\nThe fourth section of the syllabus in Cross v. Benson, 68 Kan. 495, 75 Pac. 558, reads as follows:\\n\\\"Upon the death of her husband a wife may elect to take title under his will to their homestead, which she continues to occupy, without subjecting it to the payment of his debts.\\\" (Syl. \\u00b6 4.)\\nIt was argued that taking under the will necessarily implied taking subject to the debts of the testator, in view of the statute authorizing one to devise his lands subject to the rights of creditors,. but it was held that by the will the title was devised, and she elected to take thereunder; there was no hiatus in her occupation of the premises as a residence and the homestead privilege was not disturbed, any more than it would have been had her husband deeded the lots to her' in his lifetime, while she was occupying them as a homestead.\\n\\\"And since the lots in question were continually impressed with the homestead interest of Sue S. Cross in the lifetime of her husband, at the date of his death and during the following years until her own demise, creditors enjoyed no rights to which such lots were subject or to which the making -of a will of them was subject.\\\" (p. 506.)\\nIn Compton v. Gas Co., 75 Kan. 572, 89 Pac. 1039, holding that the widow owning an undivided half of the homestead may lease her interest subject to the rights of those occupying the premises as a homestead, it was said:\\n\\\"As was held in Gatton v. Tolley, 22 Kan. 678, such sale or alienation is always subject to the right of the heirs to continue to occupy the premises as a homestead until the widow marries, the youngest child becomes of age or the homestead is abandoned.\\\" (p. 575.)\\nIn a note to this decision found in 10 L. R. A., n. s., 787, may be found numerous authorities more or less in point, but, like other decisions from other states, they are so dependent on local statutes as to be of little, if any, assistance.\\nSee Weaver v. Bank, 76 Kan. 540, 94 Pac. 273, already referred to. From these citations it is manifest that there is evolved the settled rule that a will is not a conveyance, and does not effect an alienation of real estate, and is not a disposal of it in the ordinary sense of the term. When, therefore, the widow took under the will, she took subject to the husband's debts, in case they should be kept alive and occupancy as a homestead should cease. When the children took by virtue of the same will, their title was not expanded, increased or enlarged over that which the widow acquired on the death of her husband. While if they had been in occupancy as a homestead, it would have continued free from their father's debts, it was only free while such occupancy should continue and no longer.\\nAs to the claim of ambiguity and the consequent propriety of showing the real intent of the devisors, it must be observed that while, as stated in the former opinion, support could be found for a different legal conclusion touching the meaning of the will as drawn, the document is not ambiguous but clearly within the rule of construction already announced, and hence there was no call and no room for evidence explanatory of intention. (Smith v. Holden, 58 Kan. 535, 50 Pac. 447; Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25; Morse v. Henlon, 97 Kan. 399, 155 Pac. 800.)\\nThe judgment is modified as to the sustaining of the demurrer, and the cause is remanded for further proceedings in accordance herewith.\"}"
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+"{\"id\": \"78376\", \"name\": \"John Maduska, et al., v. Alice A. Thomas\", \"name_abbreviation\": \"Maduska v. Thomas\", \"decision_date\": \"1870-01\", \"docket_number\": \"\", \"first_page\": 153, \"last_page\": \"161\", \"citations\": \"6 Kan. 153\", \"volume\": \"6\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T20:33:01.645313+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"John Maduska, et al., v. Alice A. Thomas.\", \"head_matter\": \"John Maduska, et al., v. Alice A. Thomas.\\n1. Jury Trials \\u2014 Right of \\u2014 Polling Jury \\u2014 Verdict. In an action in which the parties are entitled to a trial by jury, and where the parties have not waived a jury trial, it is error for the court to render a judgment upon the issues therein, except upon the verdict of a jury.\\n2.-When either party demands that the jury shall be polled, it is error for the court to receive the verdict and render judgment upon it, without first polling the jury; and it makes no difference whether the verdict has been rendered without the jury retiring from the court room or not.\\n8.-A verdict of any less number than twelve jurors, is not a verdict of the jury.\\n4. Contract Executed \\u2014 Estoppel. A contract was made for the purchase and sale of certain lots in Leavenworth city, while the title to the lots was still held by the government of the United States in trust for the Delaware Indians. After the vendor and his heir have received all the benefits accruing to them by virtue of said contract, the heir sues the grantee of the vendoe to recover of him. said lots: Held, That the heir is estopped from asserting that said contract is void, and his claim to said lots cannot be maintained.\\nError from Leavenworth District Court\\nEjectment, brought by Alice. A. Thomas, as plaintiff, against John Maduska and Joseph Bazel, to recover the possession of lots 11 and 12, in block 24, in Leavenworth. The case was tried before a court and a jury. The plaintiff below gave in evidence patents for each of the lots from the United States to \\u201c The heirs of Malcolm Clark ,\\u201d by that general description, and proved that Alice A. Thomas, the plaintiff, was the only living child and heir of the said Malcolm Clark. The patents are dated Sept. 15, 1864.\\nThe defendants below gave in evidence a certain instrument, executed by Malcolm Clark in his lifetime, dated April 15, 1855, whereby said Clark sold to one Jacob Sass the lots in question, \\u201cfor the consideration of four hundred dollars, one-half of which said sum is in hand paid, the other half of which said sum is secured to be paid by note, payable so soon as the title to said lots shall be secured to the said Jacob Sass or his assigns, whether by the act of said Clark, or otherwise.\\u201d And the said Clark bound himself, his \\u201c heirs, executors and administrators, to make to said Jacob Sass a quit claim deed for said lots so soon as the said balance of the consideration shall be paid.\\u201d Defendants also proved Sass went into possession of the lots under his purchase; and they also gave in evidence the proceedings of the probate court of Leavenworth county, in which the specific performance of said contract was ordered against the administrator of said Clark, on the payment of the balance of the purchase money, and the deed by the administrator to Sass, and a conveyance by Sass to Maduska, one of the defendants. It was admitted that the lands were in the \\u201cDelaware Trust Cession.\\u201d\\nThe subsequent proceedings are fully stated in the opinion of the court. Judgment was rendered for the plaintiff, and the defendants bring the case here on error.\\nJames McCahan, for plaintiffs in error:\\n1. It was competent for Clark to bind himself to convey lots to which he had, at the time, no title, and when he acquired the title he could not avoid the obligation. Chitty on Con., 275-; Hogg v. Wilkins, 1 Grant\\u2019s Oases, 67; '24 How. U. S., 322; 11 Texas, 2.\\nIt is sufficient that the obligqr- in such a case have a good title when the obligation is sought to be enforced. 2 Johns., 595; 7 Paige, 77.\\nWhen a contract is made for the sale of land, equity considers the' vendor as a trustee. for, the purchaser of .the land sold, and the purchaser \\u00e1s a trustee of the purchase money for the vendojL Sug. on Vend., 226; 2 Story\\u2019s Eq., \\u00a712\\u00cd12; 26 Penn. St., 178;'6 John. Ch., 398; 33 Me., 530, 534.\\n2. The contract of Clark to'-sell\\u2018the , lots to Sass was not void, as being in contravention of the treaty in relation to' the Delaware trust lands. Fackler v. Ford, 24 Howard, 322.' If Clark could not avoid the contract, neither, can the heir. 59 Penn. St'., \\u25a0 286; 2 Watts, 226; 7 Johns., 161. And especially as the heir is named therein. 4 Kent Com., 419; Sug. on Vend., 224; 3 Bibb, 23j 7 Blackf., 373; 1 A. K. Marshall, 363; 2 Hay, 128.\\nThe heir is bound to show a want' of assets to avoid the obligation. 3 Term E.,\\\"685 ;' 59 Penn. St., 281; 3 Chitty PL, 974; 2 Watts, 226; And the heir cannot accept the benefit of the purchase, and repudiate the burdens attached to it by the ancestor; Broom\\u2019s Leg. Max., 174; 3 My. and K., 252.; 4 Buss., 478.\\n3. The refusal of the court to submit the case to the jury was arbitrary, unwarranted, and a palpable violation of law. The evidence of the defense was admitted. It was before the jury. There were several questions of fact to be determined. Among these were, whether the heir had sufficient assets by descent,' and from what source the purchase money of the lots was derived. These were material questions in the case, and they were for the jipy to determine.\\nIt is undoubtedly the province of the court to instruct the jury on questions of law, and if the jury find contrary to law, to set aside the verdict; but it is not within the power of the court to make the jury a mere instrument to register its edicts. The jury is a creature of the law, not of the court. It is a tribunal created by law, with certain defined powers. So is the court. They each have their province, and one cannot invade that of the other. 2 Gra. & Wat., 362, 363, 364; 33 Mo., 202, 482; 26 Mo., 522; 2 Gill., 410; 6 Penn. St., 179.\\n4. The refusal to permit the jury to be polled was also an arbitrary violation of a plain statutory provision, and utterly unjustifiable in any aspect of the case. Code of 1868, \\u00a7\\u00a7283,284; 2 Wend., 619; 3 Cow., 23; 4N.T., 547.\\nThe verdict was incomplete and invalid, and not sufficient to sustain a judgment.\\nThe defendants below established a complete defense, not only in law, but according to every principle of justice and right. This was so evident that, in order to avoid a verdict for the defendants, the court directed the jury to sign a verdict for the plaintiff, and, to smother their dissent, refused to permit them to be polled.\\nIt has been a favorite theory that government is insti\\u201c tuted and courts created to establish justice; but if the proceedings in this case can be sustained, we must conclude that that theory is false, and that courts may establish injustice instead of justice.\\nClough Wheat, for defendant in error:\\n1. Clark\\u2019s contract was made before the government sold the lots composing Leavenworth city under the treaty with the Delawares fuade in May, 1854, and is void.\\nThe sales of the lots in Leavenworth were made in February, 1857, of which'time courts will take judicial notice, as it is a part of the public history of the Territory of Kansas. 4 Kas., 17; 1 Kas.\\u2019, 165; Articles 12 and 16 of Treaty, 10 U. S. St: at; Large, p. 1048, 1049, 1051; 10 Sme. & Marsh., 596; 9.Minn., 259.\\nWhether said contract was void or not, Clark did not thereby bind himself to procure a legal title for Sass^ His contract to convey by quit-claim had reference to the title he then had, and was-not intended to refer to and would not have included a title acquired by himself after the- execution of said contract. 37 Miss., 567; 9 Cowen, 13, 18. Maduska had no right to any after-acquired title. 11 Ohio, 475.\\n2. The evidence showed that plaintiff was the legal owner of the land, and as such entitled to a verdict; and it was the duty of the court to direct a verdict for her; and especially so as a verdict against her would be set aside as contrary to law. 1 Kas., 304; 8 N. Y., 72, 80, and cases cited. 7 Ind., 78; 19 Wis., 24; 40 New York, 181, 473.\\n3.- There was no error in refusing to let the jury be polled.' The legislature has, in effect, said that a party may require a jury to be polled only when the cause has been submitted to them to retire and deliberate upon the .evidence, and they have retired and' returned into court, and then if either juror disagrees, the jury must be sent out again. Code, \\u00a7\\u00a7 278, 282, 283.\\n4. Independent of any and all other reasons, we claim that the case of Stone v. Young, 4 Kas., 17, is in point, and conclusively shows the aforesaid contract to be void; and as that case has been in force several years, it ought, as. a rule of property, to remain undisturbed. If any questions ought, in this State, to be considered settled, we submit the proposition that said contract is void, should be one of them.\", \"word_count\": \"2636\", \"char_count\": \"14431\", \"text\": \"The opinion of the court was delivered by\\nValentine, J.:\\nThe defendant in error, who was plaintiff in the court below, brought his action to recover Lots 11 and 12, in Block 24, in Leavenworth city, in this State. The action was tried before a jury. The record shows the following proceedings at the close of the trial:\\n\\\" The court instructed the jury to find for the plaintiff. The defendants then requested the court to submit the case to the jury, which the court refused to do, to which ruling and decision of the court the defendants at the time excepted. The court then instructed the jury to find a verdict for the plaintiff, to which instruction the defendants at the time excepted. The court then directed the clerk to write out a verdict for the plaintiff, and hand it to the jury to be signed. The clerk drew up a verdict as follows: ' We the jury find for the plaintiff,' and presented it to the jury. Several of the jurors refused to sign it, when Jacob Ketner signed it as foreman, and returned it to the clerk, when it was read to the jury. The defendants then demanded that the jury be polled, which the court refused to permit, to which ruling and decision of the court the defendants at the time excepted.\\n\\\" The jury were then discharged. The defendants moved the court for a new trial for various reasons, which motion the court overruled, and the defendants excepted; and thereupon the court rendered judgment in favor of the plaintiff, and against the defendants for the recovery of the property in controversy, and for costs, to which judgment the defendants at the time excepted.\\\"\\nThis judgment is unquestionably erroneous. In a con tested case, the judgment, to be valid, must be founded uPon the findings of a court, the report of a referee, or the verdict of a jury. It'will not beclaimed that this judgment is founded upon the report of a referee. It will hardly be claimed that it is founded upon the findings of the court; for in a case like this, which can be tried by a jury only, unless the jury is waived, the court has no authority to make any findings. And it cannot be claimed that the judgment.is founded upon a verdict of the jury; for the record does not merely fail to show that the supposed verdict was the verdict of the jury, but it clearly shows that it was not such verdict. The most that can be said in favor of the plaintiff, with reference to said verdict, is, that the jury disagreed.\\nWith all the instructions of the court, only one juror was found to sign the verdict. Several of the jurors refused to sign it; and others expressed no opinion ; and the court refused' to allow the jury to be polled. Here the court erred. The verdict of a jury is the verdict of each, and every juror. The verdict of eleven jurors, or any less number than twelve, is not the verdict of the jury. A party has, in all cases, a right to know whether a supposed verdict is the verdict of each juror, or of only one or more of the jury; and if sections 283 and 284 of the civil code, (Gen. St. 1868, p. 683,) do not apply where the jury decide, without retiring from the jury box, still the common law would give each party the right to know the verdict of each juror.\\nII. It is claimed however, that if the court did err in refusing to submit the case to the jury, in refusing to permit thejury to be polled, and in render-mg a judgment without a proper verdict to sustain it, still the error did not affect the substantial rights of the defendants,xand therefore they have no good reason to complain. \\\"We do not think it is very obvious from the record, that the substantial rights of the defendants were not affected. On the contrary, we think the record tends to show that the substantial rights of the defendants were materially affected by the error of the court.\\nThe facts in the case are not found by the jury, but the evidence tends to show the following facts : On the 19th day'of April, 1855, while the government of the United States still held the title to the lots in dispute, in trust for the Delaware Indians, Malcolm Clark, the ancestor of the plaintiff, sold said lots to Jacob Sass, the grantor of the defendants, for four hundred dollars, and received one-half of the same down, and the other half in a promissory note payable when said Sass should receive the title to said lots; and Clark bound himself, his heirs, executors, and administrators, to make to Sass a quit-claim deed for said lots, when said note should be paid. After-wards Clark died, and his administrator bought said lots of the government at the Delaware land sales, paying therefor five dollars each, from the funds of Clark's estate, and the patent was made to the \\\" heirs\\\" of said Clark. Afterwards, Sass paid the amount of said note to the administrator of Clark's estate, which amount undoubtedly became a part of the assets of the estate, and has in all probability been paid over to the plaintiff who is the sole heir of said Clark. Now, if the proof upon all these points was sufficient, the defendants had a good defense to the plaintiff's action. It cannot be contended for Clark, nor by his heir, that the contract between Clark and Sass is void. (Fackler v. Ford, 24 Howard, 822.) After Clark and his heir have received, by virtue of said contract, four hundred dollars, in the aggregate, \\u00f3f Sass's money, three hundred and ninety dollars more than the lots cost, no rule of law or equity would permit the heir to repudiate her ancestor's contract. She cannot enjoy the benefits of such contract, and at the same time repudiate its burdens. She cannot hold the money, and also hold the lots. The law cannot permit such gross injustice. For authorities we refer to counsels' briefs. \\u2022\\nThe judgment of the court below is reversed, and the case remanded for a new trial.\\nAll the Justices concurring.\"}"
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+"{\"id\": \"87755\", \"name\": \"Lona Hopson, Appellant, v. The Union Traction Company, Appellee\", \"name_abbreviation\": \"Hopson v. Union Traction Co.\", \"decision_date\": \"1917-10-06\", \"docket_number\": \"No. 21,043\", \"first_page\": 499, \"last_page\": \"505\", \"citations\": \"101 Kan. 499\", \"volume\": \"101\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T18:05:38.291739+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lona Hopson, Appellant, v. The Union Traction Company, Appellee.\", \"head_matter\": \"No. 21,043.\\nLona Hopson, Appellant, v. The Union Traction Company, Appellee.\\nSYLLABUS BY THE COURT.\\n1. Personal Injuries \\u2014 Sudden Starting and Stopping of Street Car\\u2014 Special Questions. No material error was committed in refusing to, require more definite answers to certain questions propounded to the jury.\\n2. Same \\u2014 Evidence\\u2014Findings of Jury. The findings of the jury as to the plaintiff\\u2019s claim that she was thrown down in the defendant\\u2019s car, examined and deemed not, sufficiently inconsistent or contradictory to the evidence to warrant a reversal.\\n3. Same \\u2014 Sufficient Instructions. In the instructions given the concrete claims of the plaintiff were sufficiently set forth to give the jury a proper understanding of the isues to be tried, hence it was not error to refuse instructions stating the claimed facts still more in detail. '\\n4. Same \\u2014 Instruction\\u2014Contributory Negligence. An expression in an instruction that where both parties are careless neither can recover from the other on account thereof, construed with the foregoing portion of such instruction and held to mean that the carelessness of the plaintiff in order to preclude recovery must have materially contributed to the injury.\\n5. Same \\u2014 Evidence\\u2014Exclamations of Injured Party. Evidence of exclamations of pain was excluded, but the error, if any, can not be considered because there was no showing on motion for new trial as to what such evidence would have been.\\n6. Same \\u2014 Opinion Evidence \\u2014 Physicians. Certain physicians in testifying concerning examinations of plaintiff made by them and their opinions derived therefrom were permitted to say they believed she was shamming. Held, that 'while such evidence should be viewed' with strictness and caution its reception in this case was not error.\\n7. Same \\u2014 Sudden Starting of Car \\u2014 Negligence Question of Fact. The same rule as to starting or stopping in case of a passenger boarding a street car and reaching a seat does not necessarily apply as in leaving such car. Neither is it necessarily culpable negligence as a matter of law to start a car before a passenger thereon has reached! what is deemed a place of safety, the rule governing such instances being dependent on the facts of each given case.\\nAppeal from Montgomery district court; Thomas J. Flannelly, judge.\\nOpinion filed October 6, 1917.\\nAffirmed.\\nA. D. Neale, of Chetopa, for the appellant.\\nJohn J. Jones, of Chanute, and Chester Stevens, of 'Independence, for the appellee.\", \"word_count\": \"2452\", \"char_count\": \"13498\", \"text\": \"The opinion of the court was delivered by\\nWest, J.:\\nThe plaintiff sued for injuries alleged to have been received from a fall in the defendant's street car. The jury found against her, and she appeals.\\nShe alleged, in substance, that upon entering the car, the rear platform of which was about eight inches lower than the floor so that it was necessary to step up about eight inches to enter the car from the platform, the car was put in motion while she was removing one foot from the lower step, which caused her to be and remain unsteady when she reached the platform. That on reaching the platform she attempted to place her fare in the money box, and while she was so attempt ing and while she was still unsteady on account of the starting of the car, and before she had sufficient time to place her fare in the box or to reach a place of safety in the car the defendant negligently and recklessly caused the car to be suddenly and violently stopped with a lurch, at a place other than a street crossing, thereby throwing the plaintiff down and injuring her. The plaintiff testified that she got both feet on the first step, then put one foot on the top step, that is the platform.\\n\\\"I had my right foot up in the air to put on the top step, when the car started; it started with a little lurch and that got me unsteady; I was holding with my left hand and my nickel in my right hand, and when the car started it got me unsteady, so I grabbed with my right hand and got the rail where I could hold to and climb up on the car; that threw me back against the door, and before I could get steady I walked one step around to the box, and had my hand up to drop the nickel in place, just had it up that way (indicating direction) when the car stopped suddenly, and threw me backwards, and I was struck across the small of the back, struck the step of the car, threw my head between the benches.\\\" .\\nCharles' F. Neale, a witness, testified among other things:\\n\\\"I saw the plaintiff enter the car; the car was in motion when I first saw her in it; I saw her fall; she fell backward, and a little sideways; I got hold of her arm and helped her up; she sat down in a seat and the conductor went to her and talked with her; did not know if she was hurt; she was a large woman; when I first saw her the car was in motion; she then was kind of wobbly; the car then stopped, the conductor having given a signal to stop; the car stopped with a quick jerk; a quicker stop than ordinary; after the car started it went perhaps 20 or 25 feet before it stopped a second time. The car stopped to let this woman on, and then stopped again with a quick jerk before she got seated; it was when it stopped the last time that the woman fell down.\\\" '\\nAnother witness, Mrs. Smith, testified that she was on the car and saw the plaintiff in the aisle about to deposit her fare, the conductor gave the signal to start, and when it had gone 15 or 20 feet he gave another signal to stop, and it stopped. Witness did not see the plaintiff fall or see her on the floor, but saw her rubbing her arm or shoulder. R. B. Whipple, the conductor, testified among other things that the plaintiff was on the car and in the vestibule when he gave the signal to proceed. He looked around and saw a man coming; looked again and saw the plaintiff sitting down in the doorway of the car, her feet in the vestibule; then the car ran 20 or 25 feet after it started before it stopped again. When it stopped the second time he saw the plaintiff on the floor; had some conversation with her when she left the car, said she believed she was hurt, believed she had hurt her arm or strained it. After she got up off the floor someone took her or assisted her to a seat. He remembered stating after the injury that the motorman brought the car to a very quick stop, and that just as he did so Miss Hopson fell down. The jury answered special questions to the effect that the car moved from 5 to 25 feet after the plaintiff boarded it until it came to a stop, and also the following:\\n\\\"Q. 1. Do you find that plaintiff was thrown down by the stopping of the defendant's ear before she reached her seat? A. 1. We don't know.\\n\\\"Q. 3. Do you find that the witness Neale assisted the plaintiff to get up after she had fallen down in the car? A. 3. We find he helped her from a sitting position.\\n\\\"Q. 5. At the time the plaintiff fell, state whether, the car was stopped at a usual stopping place? A. 5. We don't know that she fell.\\n\\\"Q. 6. Do you find that the' plaintiff, Lona Hopson, was guilty of any negligence on her part which contributed to her injury? A. 6. Yes.\\n\\\"Q. 7. If the above question is answered 'Yes' state of what negligence you find Lona Hopson guilty which contributed to her injury? A. 7. By not making an effort to seat herself at once.\\n\\\"Q. 8. Do you find that the defendant through its servants and agents, knew, or ought to have known of the situation of Lona Hopson prior to or at the time she fell? A. 8. He did know.\\\"\\nComplaint is made that answers were not required to be made more full as to the maximum speed of the car, as to whether the plaintiff was thrown down, as to whether the witness Neale assisted her to get up after she had fallen down and whether the car was stopped at a usual stopping place. We find no evidence touching the maximum speed, and there was no dispute as to where the car was stopped. The other matters were sufficiently covered by the answers given.\\nThe jury are criticised for not finding that the plaintiff fell or was thrown down in the car as indicated by their answer to question No. 8. ,But the majority of the court deem it possible that the jury may have concluded that she merely came to a sitting position, and not that she was thrown down prone by the sudden stopping of the car.\\nInstructions were offered embodying in detail the charge of the plaintiff as to the alleged cause of the injury, to the effect that if the jury found such to be the facts the verdict should be for the plaintiff. These were refused. Instead, the court gave instructions covering the duty of the defendant with respect to the plaintiff in view of the charge of starting the car without giving her time to deposit her fare and reach a place of safety, and causing the car to stop suddenly knowing that she had not yet reached a place of safety after boarding the car, and' the jury were advised that the defendant owed her the duty of exercising, the highest degree of care reasonable and practicable in the management of its cars, and for failure to exercise such care would be liable. A careful examination of the instructions given, as well as those refused, leads to the conclusion that no error was committed in respect thereto, those given .being sufficiently concrete to give the jury a proper understanding of the issues to be tried.\\nThe jury were told:\\n\\\"If the injuries complained of by the plaintiff were the joint result of the plaintiff's carelessness and lack of vigilance for her own safety, and of the failure of the defendant's servants in charge of said car to properly manage the same, then this verdict must be for the defendant and against the plaintiff, as, if both parties are careless, neither can recover from the other on account thereof.\\\"\\n.The last clause is assailed as an improper or incomplete statement of the law of contributory negligence, and if taken by itself would be subject to criticism, but, in connection with the former part of the sentence referring to the injury as the joint result of the carelessness of both parties, the idea that the carelessness of the plaintiff must have materially contributed to the injury is conveyed.\\nComplaint is made of refusal to permit testimony of certain witnesses as to exclamations of pain by defendant, but there was no showing on the motion for new trial as to what such evidence would have been and therefore the error, if any, can not be considered. (Civ. Code, \\u00a7 307.)\\nCertain physicians in testifying concerning examinations'of the plaintiff made by them and their opinions derived therefrom were permitted to say that they believed she was sham ming. This is said to have been erroneous and an invasion of the province of the jury who alone were to determine whether or not the plaintiff was injured. It was proper to receive evidence. of the condition of the plaintiff when so examined and the opinion of such witnesses as to whether or not she was then suffering from any injury. But whether she was honest or dishonest, sincere or shamming, in respect to her claims of pain or injury was a matter about which the jury might have drawn their own conclusions from the facts given by the physicians without their opinions. A search for authorities discloses nowever that similar evidence has in some cases been admitted. (Austin & N. W. Ry. Co. v. McElmurry, 33 S. W. (Texas) 249; State v. Hayden, 51 Vt. 296; People v. Koerner, 154 N. Y. 355; Chicago Union Traction Co. v. Fortier, 205 Ill. 305.) (See also Cole v. Railway Co., 95 Mich. 77.) While such evidence should be viewed with strictness and caution its reception in this case was not error.\\nIt is insisted that the same rule applies in boarding a car and reaching a seat as in leaving the car, so far as the duty of the company to refrain from starting or stopping is concerned, and it is urged that the trial court erroneously refused an instruction that it is culpable negligence to start a car before the passenger has reached a place of safety thereon. Authorities on both sides of the question are presented, but we hold that the effect of a sudden start or stop while one is leaving a street car must of necessity in many cases, if not in all, be different from that of such start or stop while one is inside the car in the act of reaching a seat. Neither can it be said as a matter of law that it is culpable negligence to start such car before a passenger thereon has reached what is termed a place of safety. The rule governing such instances must of practical necessity be dependent on the facts of each given case. (See Railway Co. v. Warren, 74 Kan. 248, 89 Pac. 656; Ewing v. Street Railroad Co., 91 Kan. 388, 137 Pac. 940; Helms v. Railroad Co., 96 Kan. 568, 152 Pac. 632.)\\nThe evidence for and against the' plaintiff's claim of injury was such that a verdict .either way would find some support. It is manifest that the jury were not convinced that she was entitled to recover anything. Their general verdict against her would leave her without relief, even if they had found she was thrown down as alleged. The rulings complained of are not found to be such as to warrant us in setting the verdict aside.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"8859060\", \"name\": \"Mary T. Strong, a minor, by B. F. Hendrix, her next friend, v. Edgar H. Marcy\", \"name_abbreviation\": \"Strong ex rel. Hendrix v. Marcy\", \"decision_date\": \"1885-01\", \"docket_number\": \"\", \"first_page\": 109, \"last_page\": \"112\", \"citations\": \"33 Kan. 109\", \"volume\": \"33\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T23:57:22.527965+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"Mary T. Strong, a minor, by B. F. Hendrix, her next friend, v. Edgar H. Marcy.\", \"head_matter\": \"Mary T. Strong, a minor, by B. F. Hendrix, her next friend, v. Edgar H. Marcy.\\nBreach oe Contract, for Support of Minor; Secovery. Where a father, for the benefit of his minor child, enters into a written contract with M. for the education and support of such child during her minority, and relinquishes to M. all control over her, and for some time afterward all parties comply with the terms and provisions of the contract, but afterward M., without any just cause or provocation, refuses to further comply with any of the terms or provisions of the contract, to the injury of the minor child, held, that she may, by her next friend, sue and recover from M. for such injury.\\nError from Osage District Court\\nACTION by Mary T. Strong, a minor, by her next friend, against Edgar H. Marcy, to recover damages for an alleged breach of a certain written contract. At the October Term, 1883, the court sustained the defendant\\u2019s demurrer to the petition, and rendered judgment against plaintiff for costs. The plaintiff brings the case to this court. The opinion states the facts.\\nHughbanlcs & Hendrix, and Wm. Thomson, for plaintiff in error.\\nEllis Lewis, for defendant in error.\", \"word_count\": \"1099\", \"char_count\": \"6145\", \"text\": \"The opinion of the court was delivered by _\\nValentine, J.:\\nThis was an action brought by Mary T. Strong, a minor about fifteen or sixteen years of age, by B. F. Hendrix, her next friend, against Edgar H. Marcy, to recover the sum of three thousand dollars, as damages for an alleged breach of the following written contract, to wit:\\n\\\"Enow all men by these presents, That by mutual agreement between B. F. Strong, party of the first part, of Osage City, Osage county, and the state of Kansas, and Edgar H. Marcy, of Osage county and state of Kansas, party of the second part, the party of the first part consents to give over his minor heir and daughter, Mary T. Strong, to the said party of the second part, to rear and educate and control and provide for, as if by adoption at law, as his own child; and the said party of the second part consents to receive and take full charge of the said minor daughter, namely, Mary T. Strong, to rear and educate and control and provide for, as if by adoption at law, as his own child; and the said party of the first part hereby agrees to, and does hereby, relinquish his entire control over said Mary T. Strong to the said party of the second part.\\n\\\" In witness whereof, the said B. F. Strong and- the said Edgar H. Marcy have hereunto set their hands, this ninth day of March, in the year of our Lord one thousand eight hundred and seventy-eight. B. F. Strong.\\nE. H. Maroy.\\nWitness: B. F. Hendrix.\\\"\\nThe petition of the plaintiff alleges, among other things, that at the time of the making of this contract the plaintiff was about ten years of age; that the contract was made by her father, B. F. Strong, with the defendant, E. H. Marcy, for her sole and separate benefit; that for that purpose her father then and there relinquished all his care, custody and control over the plaintiff to the defendant; that from that time forward up to February, 1883, all parties complied with the terms and provisions of the contract; when the defendant, without any just cause or provocation, drove the plaintiff away from his home and residence, and has ever since refused to provide for her support or education, or to comply with any of the terms or provisions of the aforesaid contract, to her damage in the sum of three thousand dollars. This action was commenced on June 11, 1883. Hence the plaintiff was about that time about fifteen or sixteen years of age.\\nThe defendant demurred to the plaintiff's petition, upon the ground that it did not state facts sufficient to constitute a cause of action against the defendant, and the court below sustained the demurrer; to which ruling the plaintiff excepted, and now brings the case to this court.\\nWe have no means of knowing the exact point upon which the court below sustained the demurrer, as no brief has been filed nor oral argument made for the defendant in this court. It would seem to us that the demurrer should have been overruled. The contract was made by the plaintiff's father solely and exclusively for her benefit, and not for his own; and as a consideration for her nurture, education and support on the part of the defendant, her father, at the time, by implication if not in terms, relinquished to the defendant all custody and control over her, all interest in her services, earnings and and wages, and was never to resume the same again, and never to receive any benefit personally from the same or from the contract; and consequently we would think that for any breaches of the contract by the defendant to the plaintiff's injury, she, the real party in interest, would be a proper person to bring the action therefor, if not the only proper person to bring such an action. It is settled in this state that a person may maintain an action upon a contract made by another for his benefit, although he was not a party to the contract. (Anthony v. Herman, 14 Kas. 494; Harrison v. Simpson, 17 id. 508; Center v. McQuesten, 18 id. 476; K.P. Rly. Co. v. Hopkins, 18 id. 494; Floyd v. Ort, 20 id. 162; Life Assurance Society v. Welch, 26 id. 641, 642; Brenner v. Luth, 28 id. 583.) And where a father has for the benefit of his minor child relinquished all interest in the child's services, earnings and wages, the child himself, by his next friend, may sue and recover for such services, earnings and wages. (Schouler's Domestic Relations, 345, 370, 371.) Of course the relinquishment in this case of the child's custody, control, services, earnings and wages, was not done under the provisions of the statute, (Comp. Laws of 1879, ch. 67, \\u00a7 5,) nor was the child adopted by the defendant as provided by statute. (Comp. Laws of 1879, ch. 67, \\u00a7 6.) But this can make no difference, for the statute does not prohibit such contracts as was made in this case, nor change the rules of law concerning them.\\nThe judgment of the court below will be reversed, and the cause remanded with the order that the demurrer to the petition will be overruled.\\nAll the Justices concurring.\"}"
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+"{\"id\": \"8861434\", \"name\": \"H. W. Cox, as Administrator, etc., Appellee, v. The City of Kansas City, Appellant\", \"name_abbreviation\": \"Cox v. City of Kansas City\", \"decision_date\": \"1912-01-06\", \"docket_number\": \"No. 17,395\", \"first_page\": 298, \"last_page\": \"304\", \"citations\": \"86 Kan. 298\", \"volume\": \"86\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:41:59.453353+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"H. W. Cox, as Administrator, etc., Appellee, v. The City of Kansas City, Appellant.\", \"head_matter\": \"H. W. Cox, as Administrator, etc., Appellee, v. The City of Kansas City, Appellant.\\nNo. 17,395.\\nSYLLABUS BY THE COURT.\\n1. Public Administrator \\u2014 Appointment \\u2014 Collateral Attack. \\u2022 Under a statute providing that before a public administrator shall take charge of an estate he shall make application to the probate court showing certain facts, and shall give bond, and that the court shall thereupon issue him letters of administration, his appointment as administrator is not rendered absolutely void by the omission of the application to set out some jurisdictional fact, where such fact actually exists.\\n2. - Same. Under the statute authorizing the appointment of an administrator where a nonresident has died leav- - ing any estate to be administered in this state, such an appointment is not open to collateral attack by a showing that the intestate left no property in this state excepting the suit of clothes he was wearing, valued at $1.50.\\n3. WRONGFUL Death \\u2014 Who May Bring Action. An action for the wrongful death of a nonresident may still be brought by the Kansas administrator of his estate, under the original act conferring that authority, notwithstanding the passage of the supplemental act authorizing his widow or next of kin to bring the action.\\n4. Verdict \\u2014 Not Excessive. A verdict for $3000 held not to be excessive under the evidence.\\nAppeal from Wyandotte court of common pleas.\\nOpinion filed January 6, 1912.\\nAffirmed.\\nRichard J. .Higgins, and Nathan Cree, for the appellant.\\nJames F. Getty, for the appellee.\", \"word_count\": \"2058\", \"char_count\": \"11870\", \"text\": \"The opinion of the court was delivered by\\nMason, J.:\\nIsrael Saron, a resident of Missouri, was' killed by being thrown from a wagon in Kansas City, Kan. An action was brought against the city by H. W. Cox, as administrator of his estate, on the ground that his death was caused by the defective condition of the street. The plaintiff recovered a judgment and the defendant appeals.\\nThe principal controversy is over the capacity of the plaintiff 'to maintain the action. Cox was the public administrator, under a statute creating that office,for Wyandotte county. (Laws 1903, ch. 199.) That statute provides that letters of administration may be granted to the public administrator upon his making application therefor, showing the existence of certain conditions. The defendant maintains that the appointment of Cox as administrator was wholly void, because his application did not'show all the conditions necessary to confer jurisdiction upon the probate court, even if they in fact existed. We think the better rule is that the appointment of an administrator will not be held void upon a collateral attack, merely because some jurisdictional fact is not affirmatively shown by the record, although the authorities are in conflict on the subject. (Woerner's Am. Law of Adm. \\u00a7 261; 18 Cyc. 122; 19 Encycl. Pl. & Pr. 838.) The statute in question provides in substance that the public administrator shall not take charge of the estate until he has made an application showing the existence of the jurisdictional facts, and given a bond; and .that letters shall then be issued. We do not think this language changes, the general rule.\\nThe argument is made that the powers of the public-administrator are defined by the act creating the office, and do not include the maintaining an action on account of the death of the intestate. However that act may define the duties of the officer, we think he is, within the meaning of the term \\\"personal representative\\\" as used in the statute giving a right of action for a wrongful death, and derives from that source a capacity to maintain the suit.\\nMoreover, we regard the appointment of the administrator as sufficient against a collateral att\\u00e1ck irrespective of the special statute. The circumstance that Cox was the public administrator did not disqualify-him for appointment under the general law, which makes no requirement as to how the probate court shall ascertain the facts necessary to confer jurisdiction. (Brubaker v. Jones, 23 Kan. 411.) The only jurisdictional defect that appears to have been urged upon the trial court was the want of any property in this state to justify the appointment of an administrator. The petition for the appointment of the administrator alleged that the deceased left personal property of about the value of $100. In fact the only property in this state owned by him at the time of' his death was the suit of clothes he was wearing, which was appraised at $1.50. The answer alleged that even this, having been taken to Kansas City, Mo., was brought back into Wyandotte county merely to supply a colorable pretext for the appointment of an administrator to prosecute this action; but this allegation was not supported by the evidence. The defendant maintains that the clothing was practically without value, and that the appointment of the administrator was void because there was really no property in this state to be administered.\\nThe ordinary rule is that the appointment of an administrator is not open to collateral attack by showing the want of some jurisdictional fact, the determination of the probate court in that respect being regarded as conclusive until set aside, unless the lack of jurisdiction affirmatively appears upon .the record. (Ekblad, Adm'r, v. Hanson, 85 Kan. 541, 117 Pac. 1028; Livermore v. Ayres, ante, p. 50, 119 Pac. \\u2014; 19 Encyc. Pl. & Pr. 838; Note, 81 Am. St. Rep. 535; Note, 4 A. & E. Ann. Cas. 1117; Note, 18 L. R. A. 242.) One exception is almost universally recognized \\u2014 it may always be shown that the supposed decedent is not dead. This court has held, contrary to the weight of authority elsewhere, that an appointment may be collaterally attacked by showing that the deceased was not a resident of the county (Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369), or that he left no property there (Perry, Adm'r, v. St. J. & W. Rld. Co., 29 Kan. 420), where those matters are jurisdictional. Our statute (Gen. Stat. 1909, \\u00a7 3436) provides that when any person shall die intestate in any other state, administration shall be granted by the probate court of any county in which there is any. estate to be administered. This requires that there shall be some property within the jurisdiction of the court, but not that it shall be of any specific value. In that situation the fact that the property is of very slight value \\u2014 almost inconsiderable \\u2014 is held not to defeat jurisdiction. (Wheeler, Adm'r, v. St. J. & W. Rld. Co., 31 Kan. 640, 3 Pac. 297; U. P. Rly. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501; City of Horton v. Trompeter, 53 Kan. 150, 35 Pac. 1106; Missouri P. R. Co. v. Bradley, 51 Neb. 596, 71 N. W. 283; 18 Cyc. 71.) In White v. Nelson, (12 N. Y. Surr.) 2 Dem. 265, administration was granted upon the strength of a Japanese folding chair.\\nThe defendant seeks to distinguish the Kansas cases cited, on the ground that in each of them the deceased was a resident of this state. We see no just ground for a distinction in principle. In the Trompeter case a doubt was suggested whether the existence of any property was necessary to the appointment of an administrator, but each of the three cases was decided upon the theory that the existence of some property was essential, and.they must be deemed to establish the principle that the value of the property is a matter of no consequence so far as jurisdiction is concerned. In those cases, as in this one, it was sufficiently obvious that the real purpose of the appointment was to provide a plaintiff for the prosecution of a death claim. The present statute, which allows the beneficiaries to sue for themselves, dispenses with the necessity for such appointment, but does not affect the jurisdictional question. If the presence of' an insignificant amount of' property, coupled with the fact that the intestate was a resident of the county, is enough to authorize the appointment of an administrator where both property and residence are essential, it will by itself be sufficient for the p\\u00far-pose where property is the only jurisdictional-requirement. The defendant places some reliance upon Hoes v. N. Y., N. H. & H. R. R. Co., 173 N. Y. 435, 66 N. E. 119, where the appointment of an administrator was held void, upon a collateral attack, because based upon property fraudulently brought into the state to serve such purpose. If similar facts were shown here a different question would be presented. The New York case, however, turned upon a statute making the. appointment conclusive, when drawn in question collaterally, \\\"in the absence of fraud or collusion.\\\" (p. 439.) The ordinary rule seems to be that even the question of fraud can not be raised upon a collateral attack. (Note, 81 Am. St. Rep. 560, 561.)\\nThe defendant further maintains that under the Kansas statute an action for the wrongful death of a nonresident of the state can only be brought by the widow or next of kin-^not by the administrator. The original act (see Code 1909, \\u00a7 419) conferred the right of recovery, and provided that the action might be brought by the personal representative for the benefit of the widow and children, if any, or next of kin. In 1889 a further act was passed (Laws 1889, ch. 131, \\u00a7 1), described in its title as relating to actions for damages by the widow or next of kin of any deceased person, and \\\"supplemental\\\" to the former act, which reads as follows :\\n\\\"That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 1868, is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section 422 may be brought by the-widow, or where there is no widow, by the next of kin of such deceased.\\\"\\nThis new section is a part of the present code, its language remaining the same, except that the earlier act is referred to as the \\\"preceding section.\\\" (Code 1909, \\u00a7 420.) The defendant interprets the later section as meaning that where the deceased was a resident of this state, the action must be brought by the administrator, if one has been appointed, but where the deceased was a nonresident, it can only be brought by the widow or next of kin. We do not think this the proper interpretation of the statute. The original section authorized the personal representative of the deceased to sue. The later enactment did not purport to amend the earlier one, but to supplement it. \\\"Its purpose was to extend, not to restrict, the remedy.\\\" (Railway Co. v. Fajardo, 74 Kan. 314, 322, 86 Pac. 301.) An action for the death of a nonresident may still be brought by the administrator, in virtue of the original statute; or it may be brought by the widow or next of kin, in virtue of the supplemental legislation. This view has already been stated in another connection in this language:\\n\\\"Said \\u00a7 422a, being \\u00a7 1 of chapter 181, Laws of 1889, . . . is not an amendment of \\u00a7 422. That section is still in full force, and is not repealed, but stands as it did before the act of 1889 was passed. If a personal representative has been appointed, he may still maintain the action, as provided in \\u00a7 422, the same as if the act of 1889 had not passed.\\\" (Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759, 769, 34 Pac. 805.)\\nThe amount of the verdict \\u2014 $3000\\u2014is objected to, but we do not find it excessive, in view of evidence to this effect: Saron was 24 years old, and unmarried. He had been in this country for two years, and was earning $30 a month, besides his board and lodging. The recovery was for the benefit of his parents, aged 58 and 55, living in Russia. He had sent them money at different times, the amounts varying from $25 to $60.\\nFor a collection of cases on the subject, see 18 A. & E. Ann. Cas. 1231.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"8861848\", \"name\": \"Ella M. Ward, Appellee, v. Elmer E. Benner et al. (Estella M. Breon, as Executrix, etc., Appellant)\", \"name_abbreviation\": \"Ward v. Benner\", \"decision_date\": \"1913-04-12\", \"docket_number\": \"No. 18,090\", \"first_page\": 369, \"last_page\": \"373\", \"citations\": \"89 Kan. 369\", \"volume\": \"89\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T19:27:01.014542+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ella M. Ward, Appellee, v. Elmer E. Benner et al. (Estella M. Breon, as Executrix, etc., Appellant).\", \"head_matter\": \"Ella M. Ward, Appellee, v. Elmer E. Benner et al. (Estella M. Breon, as Executrix, etc., Appellant).\\nNo. 18,090.\\nSYLLABUS BY THE COURT.\\n1. Devisee \\u2014 Interest in Real Estate \\u2014 Subject to Attachment. The interest of a devisee in real estate is subject'to attachment although the will directs the executor to sell the property and distribute the proceeds among the devisees.\\n2. Judgment \\u2014 Order Allowing Executor to Sell Attached Property Approved. A clause of a final judgment in an action wherein the interest of a devisee in real estate had been attached, allowing the executor to sell the attached property as directed by the will and providing for the application of the defendant\\u2019s share of the proceeds upon the judgment against him, is approved.\\n3. Attachment \\u2014 Publication Service \\u2014 Jurisdiction over Attached Property Only. Where the interest of a defendant as devisee in real estate is attached and service is made upon him by publication only, the court does not thereby obtain jurisdiction to apply upon the judgment rendered against him his share in the proceeds of personal property in the hands of the executor upon which -the attachment was not levied.\\n4. Injunction \\u2014 Confers no Jurisdiction to Dispose of Property. The issuance of a temporary injunction to restrain the disposition of a defendant\\u2019s interest in personal property, does not give the court authority to apply such property or its proceeds to the payment of the plaintiff\\u2019s claim.\\nAppeal from Doniphan district court.\\nOpinion filed April 12, 1913.\\nModified.\\nArthur G. Bell, of Troy, for the appellant.\\nC. S. Hull, of Atchison, and C. W. Reeder, of Troy, for the appellee.\", \"word_count\": \"1374\", \"char_count\": \"8013\", \"text\": \"The opinion of the court was delivered by\\nBenson, J.:\\nThis is an action upon a judgment of an Indiana court.\\nDefendant Elmer E. Benner and the plaintiff were husband and wife, residing in Vigo county, Indiana, when a judgment was regularly rendered in the superior court of that county in favor of the wife for divorce and for monthly payments to her for the support of their minor children.\\nAt the time this action was commenced the payments due upon the judgment referred to amounted to $1286. An order of attachment was issued, and Benner's interest in real estate in Doniphan county was attached and a temporary injunction was issued restraining defendant Estella M. Breon, as executrix, from distributing or paying over to defendant Benner any money or property in her hands. Service by publication was made upon Benner, who did not appear.\\nThfe petition set out the Indiana judgment and the amount due thereon and alleged that Mary A. Benner, deceased, the mother of Elmer E. Benner, died leaving a will, a copy of which was attached, by which she devised one-fourth of the real estate above referred to and one-fourth of her personal property to her son Elmer, after deducting a specified sum to be paid to his minor children, directing the sale of the real estate and division .of the proceeds among the devisees. The petition also alleged the insolvency of Benner and the probable loss of the claim if the relief should not be granted.\\nThe answer of the executrix admitted the death, the will and probate thereof, and disposition of property thereby as alleged. It also contained a general denial and an allegation that partial distribution had already been made to Elmer E. Benner under an order of the probate court. It challenged the jurisdiction of the district court to interfere with the settlement and distribution of the estate.\\nJudgment was rendered on the pleadings:\\n\\\"That the plaintiff recover of the defendant Elmer E. Benner judgment in rem for the sum of $1286, with interest thereon of 6 per cent from the 20th day of June, 1910, extending only to the property, real and personal, now or hereafter in the hands of said executrix or the proceeds of said property to the extent of said judgment and interest and costs that would otherwise go or belong to said defendant Elmer E. Benner.\\\"\\nIt was further adjudged that the attachment should be dissolved so far that the executrix should be allowed to carry out the terms of the will and make conveyance' of the property as though the attachment had not been levied; and that the executrix should be enjoined from turning over to Elmer E. Benner any property, real or personal, or proceeds of the estate until the judgment is satisfied. It was further ordered that upon final settlement of the estate the executrix should turn over to the clerk of the district court the share of Elmer E. Benner in the proceeds of the estate as found by the probate court, in amount sufficient to satisfy the judgment. Prom this judgment the executrix alone appeals.\\nThe assignments of error are based upon the alleged want of .jurisdiction in the district court to issue the order of attachment and injunction, and to enter judgment on the petition.\\nThe principal defendant was a nonresident of this state, and owned an interest in lands situated in the county. This interest was subject to attachment. (Civ. Code, \\u00a7 53, 78, 190; Gen. Stat. 1909, \\u00a7 9037. subdiv. 8; Bullene v. Hiatt, 12 Kan. 98.)\\nIt is argued that the title to the real estate was in the executrix in trust to execute the power of sale. This, however, is not the fact. The property was not devised to the executrix in trust, but was devised to Elmer E. Benner and others, and only a power of sale was given to the executrix. In such a situation it was held that the interest of a devisee was subject to the lien of a judgment against him. (Bank v. Murray, 86 Kan. 766, 121 Pac. 1117.) Applying the reasoning of the opinion in that case, it must be held that the interest of Benner in the real estate is bound by the attachment, subject to the orders made to preserve control of the proceedings by the probate court until distribution should be ordered.\\nThe provisions in the judgment allowing the sale of the attached property by the executor as provided in the will and the determination of defendant Ben-ner's interest therein by the probate court preserved the jurisdiction of that court, while the application of his share or interest in such real estate, when so determined, to the plaintiff's claim was a proper exercise \\u2022of the jurisdiction of the district court in the situation presented. (People ex rel. Cauffman v. Van Buren et al., 136 N. Y. 252, 32 N. E. 775, 20 L. R. A. 446, and note.)\\nBy the attachment and constructive service the court obtained jurisdiction to appropriate the attached property to the payment of the debt. (National Bank v. Peters, 51 Kan. 62, 32 Pac. 637; Parmenter v. Lomax, 68 Kan. 61, 74 Pac. 634.) The judgment, however, while reciting that it is in rem, purports to adjudicate and appropriate to the payment of the plaintiff's claim not only the defendant's interest in the property at--tached, but also his share in the personal property of the deceased in the hands of the executrix. No authority for this can spring from the attachment of the real estate, and the only suggestion of its source is the injunction. It is true that an injunction may be allowed to prevent the removal or disposition of property with intent to render a judgment ineffectual. (Civ. Code, \\u00a7 250.) The injunction in this case was issued for that purpose and was effectual as to the attached property, but it afforded no authority for the application of the personal property not attached or its proceeds upon the plaintiff's claim. The issuance of an injunction is not a ground for constructive service. Jurisdiction to apply property upon a creditor's claim is not obtained by merely issuing an injunction restraining the disposition of the property.\\nThe judgment appealed from is erroneous in so far as it directs the application of money or property not attached to the payment of plaintiff's claim.\\nThe provisions in the judgment for the application of the proceeds of the personal property not attached must be set aside.\\nThe cause is remanded with directions to modify the judgment in accordance with these views.\"}"
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+"{\"id\": \"8863465\", \"name\": \"The Edinburgh Lombard Investment Company, Limited, v. Emma Cooper et al.\", \"name_abbreviation\": \"Edinburgh Lombard Investment Co. v. Cooper\", \"decision_date\": \"1904-02-06\", \"docket_number\": \"No. 13,488\", \"first_page\": 517, \"last_page\": \"518\", \"citations\": \"68 Kan. 517\", \"volume\": \"68\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:28:47.105658+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"The Edinburgh Lombard Investment Company, Limited, v. Emma Cooper et al.\", \"head_matter\": \"The Edinburgh Lombard Investment Company, Limited, v. Emma Cooper et al.\\nNo. 13,488.\\n(75 Pac. 488.)\\nSYLLABUS BY THE COURT.\\nPractice, Supreme Court \\u2014 Jurisdiction\\u2014Amount in Controversy. Plaintiff recovered from defendants a judgment for . $515.66, with interest at ten per cent, per annum, costs of suit, and foreclosure of its mortgage. Defendants filed a motion to correct the journal entry. The motion was sustained and plaintiff\\u2019s recovery was reduced to the extent of the interest and costs. This proceeding is brought to the supreme court by .plaintiff to review said order. Held, that the amount in controversy was the loss of the interest sustained by plaintiff in the correction of the journal entry, and, being less than $100, the supreme court has no : jurisdiction to review the case.\\nError from Rooks district court; Chas. W. Smith, judge.\\nOpinion filed February 6, 1904.\\nDismissed.\\nCook & Gossett, for plaintiff in error.\\nW. B. Ham, for defendants in error;\", \"word_count\": \"516\", \"char_count\": \"3070\", \"text\": \"The opinion of the court was delivered by\\n.Atkinson, J. :\\nThe Edinburgh Lombard Investment\\nCompany, Limited; filed its petition of foreclosure in the district court of Rooks county on the 11th day of May, 1900, against Emma Cooper et al., to foreclose a mortgage upon land in that county. Defendants answered, claiming a set-off. Upon the trial in the district court defendants were allowed a set-off against the claim of plaintiff, and plaintiff recovered judgment against defendants for the sum of \\u00a7515.66, with interest at ten per cent, per annum, the costs of suit, and foreclosure of the mortgage. Plaintiff prosecuted error to the supreme court and the judgment of the trial court was affirmed. (The Edinburgh Lombard In vestment Company, Limited, v. Emma Cooper et al., 64 Kan. 888, 68 Pac. 1127.)\\nOn June 25, 1902, after the mandate of the supreme court had been filed in the district court, defendants filed their motion to correct the journal entry in said cause. Upon the hearing of this motion it was sustained, and the court made an order correcting the journal entry so as to show that plaintiff did not recover interest and costs on said judgment of $515.66. To the order of the district court correcting the journal entry the plaintiff excepted, and has brought proceedings in error to the supreme court.\\nWe have carefully examined the record filed in this court. ' The amount in controversy, exclusive of costs, would be the amount of loss of interest which plaintiff sustained by the order of the court correcting said journal entry. This amount is less than $100. The appellate jurisdiction of the supreme court can be exercised in civil actions only where the amount or value in controversy, exclusive of costs, exceeds $100, except in certain cases, and the present case does not come within any of the exceptions. (Gen. Stat. 1901, \\u00a7 5019; Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114; Loomis v. Bass, 48 id. 26, 28 Pac. 1012; Skoin v. Limerick, 50 id. 465, 31 Pac. 1051.)\\nAs this court has no jurisdiction to review the case, it will be dismissed.\\nAll the Justices concurring.\"}"
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+"{\"id\": \"8863501\", \"name\": \"Helen G. Hyde, Appellee, v. Alex Hyde, Appellant\", \"name_abbreviation\": \"Hyde v. Hyde\", \"decision_date\": \"1939-04-08\", \"docket_number\": \"No. 34,200\", \"first_page\": 643, \"last_page\": \"646\", \"citations\": \"149 Kan. 643\", \"volume\": \"149\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T20:04:37.966851+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Helen G. Hyde, Appellee, v. Alex Hyde, Appellant.\", \"head_matter\": \"No. 34,200\\nHelen G. Hyde, Appellee, v. Alex Hyde, Appellant.\\n(88 P. 2d 1035)\\nOpinion filed April 8, 1939.\\nRobert C. Foulston, George Siejkin, Sidney L. Foulston, Lester L. Morris, George B. Powers, Carl T. Smith, C. H. Morris and John F. Eberhardt, all of Wichita, for the appellant.\\nDudley W. Eaton, Glenn Porter, Getto McDonald, Dwight S. Wallace and William Tinker, all of Wichita, for the appellee.\", \"word_count\": \"1751\", \"char_count\": \"9837\", \"text\": \"The opinion of the court was delivered by\\nSmith, J.:\\nThis was an action to enforce the provisions of a contract entered into at the time plaintiff and defendant were divorced. This particular proceeding arises out of a motion of defendant to modify the decree that was entered in that action. The trial court denied defendant any relief. He appeals.\\nThe original decree covered many details as to the provisions which defendant was to make for his wife, the defendant in the divorce action. Besides these, there was a provision for payments to be made to the plaintiff for the support of their daughter. It is this provision with which we are concerned at this time. That clause of the decree is as follows:\\n\\\"For the care and maintenance of the child of the parties, namely, Sarah Grace Hyde, the defendant, Alex Hyde, shall pay to the plaintiff, Helen G. Hyde, thirty-six hundred dollars (83,600) per annum, divided into monthly payments of three hundred dollars ($300) each; such payments may be made by the said defendant, Alex Hyde, by depositing the same to the credit of the plaintiff, Helen G. Hyde, in the First National Bank in Wichita, Wichita, Kan., at any time on or before the fifth day of each calendar month; such payments for the care, custody and maintenance of said child shall continue so long as said child shall remain dependent, and this court hereby retains full jurisdiction upon the application of either party to, if in the judgment of this court that should be done, determine whether or not, at the time of such application, such child is still dependent and whether or not the circumstances or situation of the parties to this action justify the amendment or alteration of the terms of this decree with reference to the care and maintenance of said child or the amount to be paid by the defendant therefor.\\\"\\nAt the time of the hearing of this application in the trial court the daughter was attending Leland Stanford University in California during the school year, and spending part of her vacation time with her father in Wichita, and part with her mother.\\nThese parties have been before this court in an appeal from an order denying defendant any relief in a somewhat similar application. (See Hyde v. Hyde, 147 Kan. 134, 75 P. 2d 1023.)\\nThe basis of that motion was that since the daughter was away at school during the school year and with her father during the months of June, July and August, this was such a change of circumstances and situation of the parties as to justify a modification of the terms of the decree with reference to the care and maintenance of the daughter and the amount to be paid for this care and maintenance. In considering this contention, this court examined what was said in an appeal from a former order refusing to modify, but-interpreting, the decree. (See Hyde v. Hyde, 143 Kan. 660, 56 P. 2d 437.) In that action the trial court refused to modify the decree, but did make an order interpreting it to the effect that defendant would not be required to make the payments to plaintiff for the time when the daughter was with him or supported by him. This court held'this was error on the theory that what was intended by the decree was that the plaintiff should maintain a home available for the daughter at all times, whether she happened to be in it at all times or not. This court said:\\n\\\"Appellee rightly contends that a sum decreed to be paid to a mother for the support of a child whose custody is awarded to the mother is a distinct thing from alimony awarded to a wife in a divorce action. From this it does not follow, however, that the sum adjudged to be paid for the maintenance of a child is necessarily limited to cash outlay for bare necessities. In many instances it means the home should be maintained on an entirely different scale than as though the mother were living alone. Apparently such is the purpose in this case. Here was a daughter fourteen years of age at the time the decree in question was entered, of well-to-do parents, no doubt having friends among the same class of people. It costs money to purchase or rent, furnish and maintain a home such as both of the parties apparently wanted this daughter to have. The fact that she was absent and with her father a few days or a few weeks in the summer might not decrease to any great extent the yearly expense of furnishing and maintaining such a home. Perhaps realizing that, the parties made no provision in their agreement and the court made none in its decree for any reduction of payments by reason thereof. The parties also looked forward to the time when they might want their daughter to attend a private school, or a special school of some character. The parties realized that the sum to be paid for the maintenance of the child would not pay the expense of such a school, so they agreed and the court decreed, that defendant 'shall also pay the tuition and schooling expense' of the child. The parties evidently contemplated that even though the daughter were in school a home for her should be maintained by the mother where she could spend as much time as possible and where she could bring her friends. It is an inaccurate interpretation of the decree to say that the amount 83,600, to be paid at $300 per month, was to be reduced by any of those matters.\\\" (p. 665.)\\nIn the consideration of Hyde v. Hyde, 147 Kan. 134, 75 P. 2d 1023, this court set out the above language, and said:\\n\\\"While the conclusion and decision in the former case was that the interpretation was erroneous, it is a necessary and positive conclusion from the language used in the opinion that the absence of the daughter from the home during the summer and while at school was not, in the minds of the parties when making the contract or of the court when entering it as a decree, considered such a change in the circumstances or situation of the parties as to justify a modification of the contract and decree.\\\" (p. 138.)\\nIn the present proceeding the defendant asked that the part of the decree already quoted in this opinion be modified for the reason that the daughter was no longer dependent, there having been established for her a trust fund which would take care of her support and maintenance, and for the further reason that there had been a change in the financial circumstances and situation of the defendant within the meaning of the deeree.\\nTo support the latter reason the defendant testified at the hearing that at the time the decree was entered defendant had an income of between $25,000 and $30,000 yearly, while at the time of the hearing his total income was $982.50 a month, or less than $12,000 a year; that out of this income he had to pay taxes of about $425, partly in real estate, interest on the mortgage of $280; that he had gone into business with a medicine company which obligated him to pay $500 monthly until $6,000 was paid. There was some further testimony by him as to bad investments he had made. He also testified that he had deposited in trust with the First National Bank in Wichita 250 shares of stock of the Mentholatum Company of a value of approximately $50,000; that this was an irrevocable trust under which the principal and interest were to be devoted to the benefit of his daughter.\\nAfter this evidence was introduced the following colloquy occurred between court and counsel:\\n\\\"The Court: What would you suggest should be the modification? To what amount?\\n\\\"Mr. Siefkin: I think certainly it should not exceed the amount which she spends upon the child, and there being no showing that she is spending anything whatever for the child, I see no reason why it should not be entirely eliminated. The position he takes, in a few words, is this: He has no objection to spending every dollar that he has to support this child. He does object to supporting an ex-wife. That, in a few words, sums up the entire controversy.\\\"\\nWe gather from this statement of counsel that the contention at this hearing was not far different from that urged by defendant in Hyde v. Hyde, supra. This court denied defendant any relief in that proceeding. On the appeal here, however, defendant argues that the proof was so ample, convincing and undisputed that there had been a change in the financial condition of defendant that the trial court abused its discretion in refusing to modify the decree.\\nThe parties agreed on the terms of this decree. Wide discretion was given the trial court on the question of whether or not it should be modified on account of a change in the circumstances of the parties. The impelling consideration, no doubt, when the parties agreed to the terms of the decree, was the standard of living of both parties and the standard they wished for their daughter. There is no evidence here that this standard has been lowered for any of the parties. The fact that the payments have become more of a burden for defendant does not constitute such a change in the circumstances or situation as to require the trial court to modify the decree. It was not an abuse of the discretion of the trial court so to hold.\\nDefendant argues that, since the trust fund was created for the benefit of his daughter, she is no longer dependent. We have examined this trust agreement and have concluded that it does not change the situation at all. It is merely a device set up by defendant to enable him to comply with the decree.\\nThe judgment of the trial court is affirmed.\"}"
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+"{\"id\": \"8863819\", \"name\": \"The State of Kansas, Appellee, v. Urban Evans and David Ontjes, Appellants\", \"name_abbreviation\": \"State v. Evans\", \"decision_date\": \"1924-03-06\", \"docket_number\": \"No. 25,361\", \"first_page\": 538, \"last_page\": \"542\", \"citations\": \"115 Kan. 538\", \"volume\": \"115\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T17:34:11.991609+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Kansas, Appellee, v. Urban Evans and David Ontjes, Appellants.\", \"head_matter\": \"No. 25,361.\\nThe State of Kansas, Appellee, v. Urban Evans and David Ontjes, Appellants.\\nSYLLABUS BY THE COURT.\\n1. Criminal Law- \\u2014 Burglary\\u2014Evidence\\u2014Ability o] Bloodhounds to Follow a Human Trail. Evidence concerning the ability of a pair of bloodhounds to follow a human trail is held to have been admissible and sufficient to form a basis for testimony tending to show they had followed a trail from the scene of a burglary to the home of the defendants.\\n2. Same \\u2014 Photographs as Evidence. Where a photograph is offered in evidence it is proper practice to introduce preliminary evidence that it is an accurate representation of the object photographed.\\n3. Same \\u2014 Cross-examination of Defendant Concerning Former Plea of Guilty of Larceny. The striking out of an affirmative answer to the question asked on cross-examination of a defendant in a criminal case whether he had pleaded guilty to a charge of larceny is not prejudicial.\\n4. Same \\u2014 No Error in Instructions Concerning Bloodhounds \\u2014 Evidence. It is held that no material error was committed in the giving and refusal of instructions concerning evidence of the conduct of bloodhounds and circumstantial evidence generally.\\nAppeal from Rice district court; Clyde R. Douglass, judge.\\nOpinion filed March 6, 1924.\\nAffirmed.\\nD. A, Banta, of Great Bend, for the appellants.\\nC. B. Griffith, attorney-general, John F. Rhodes, assistant attorney-general, and Bronce Jackson, county attorney, for the appellee.\", \"word_count\": \"1619\", \"char_count\": \"9559\", \"text\": \"The opinion of the court was delivered by\\nMason, J.:\\nUrban Evans and David Ontjes were convicted of burglary and appeal.\\nThe evidence tended to show these facts: A store was broken into at night and a quantity of clothing stolen. The next day a part of the stolen property was found hidden in a haystack half or three-quarters of a mile from the house where the defendants lived, another sack of clothing being later found at a somewhat greater distance from the house in the opposite direction \\u2014 away from the store. On that day bloodhounds were taken to the window through which the entrance to the store had been made and told to \\\"hunt them up.\\\" They appeared to strike a trail which they followed to and around the stack referred to and then on to the defendants' home, where they ran up to Ontjes, who was coming from a water tank with a bucket in his hand.' The officers then, learning of the finding of the clothing, took the hounds to the place where the second portion referred to had been found, and there gave them the scent of some shirts forming a part of the stolen goods. The hounds again took up the trail and followed it back to the defendants' home. Shoes of the defendants were found to fit footprints near the haystack.\\n1. Complaint is made that the man who handled the bloodhounds was permitted to give his opinion as to their qualifications to follow a trail, instead of stating the facts upon which the jury could form their own judgment of the matter. The witness said he had been training, handling and using bloodhounds for fifteen years; that he knew the qualifications of the two dogs used in this case with reference to following human trails; that the conditions existing were such as to offer \\\"just a medium trail\\\" for the dogs. He was asked what their qualifications were and over objection answered \\\"accurate.\\\" Asked if he knew of any better strain of dog for following human tracks he said they were the best \\u2014 \\\"said to be by old timers.\\\" A motion was made to strike out the quoted words and after a discussion which resulted in a reframing of the question he answered again \\u2014 \\\"They are the best.\\\" The witness having given his opinion that the dogs were of the best strain his statement that old timers had said so was not very important and was practically withdrawn by the court's requirement that the question should be restated. We think there was a substantial compliance with the rule under which evidence of the conduct of bloodhounds is admissible. (The State v. Adams, 85 Kan. 435, 116 Pac. 608.)\\n2. Complaint is made of the admission of testimony that photographs offered by the state were correct, the objection being that they spoke for themselves. The only portion of the appellants' abstract bearing on the matter reads: \\\"The witness F. R. Hays, was permitted, over the objection of the defendants, to look at a picture, and tell whether it was a correct representation of what he saw, stating his conclusions in relation to the matter, instead of requiring him to give a verbal picture of what he witnessed.\\\" Photographs taken in the ordinary way are of course an accurate record of the image cast by the lens upon the plate or film, but as distortion is possible through the manner in which the camera or the negative is used it is common not only to permit but to require evidence that the print is an accurate reproduction of the object photographed. (3 Jones Commentaries on Evidence, \\u00a7 581.)\\n3. One of the defendants was asked on cross-examination whether he had not pleaded guilty to a charge of stealing chickens and been sent to the reform school. He answered, \\\"Yes, sir; and that is the only thing I ever was guilty of.\\\" The state moved to strike out the answer as not responsive to the question and the ruling of the court sustaining the motion is complained of. The latter part of the answer was obviously not responsive, and the striking out of his admission that he had stolen chickens could not well have prejudiced the defendant.\\n4. In an instruction properly stating that \\\"to justify the inference of guilt from circumstantial evidence, the facts proven from which it is asked that the guilt of the defendants be inferred must be consistent with each other and must not only clearly point to their guilt, but must be inconsistent with any other reasonable hypothesis upon which their innocence may be maintained,\\\" the court also included the statement that \\\"when the evidence in a case consists of a chain of well authenticated and proven circumstances it is often more convincing and satisfactory and gives a stronger ground of the assurance of the defendants' guilt than the direct testi mony of witnesses, unconfirmed by circumstances.\\\" The defendants complain of the second of these quotations as untrue and misleading. Manifestly it is literally true, as the trial court substantially told the jury, that an inference drawn from an admitted or established (or as the court said \\\"well authenticated and proven\\\") fact may sometimes be and doubtless often is more convincing than the testimony of witnesses who may not be telling the truth. The statement of such an abstract truism may not have been of any substantial aid to the jury, but we see no probability that it could have misled them. Different opinions have been expressed as to the relative weight of direct and circumstantial evidence (16 C. J. 763), but the material question in the case is whether the evidence was sufficient to convince the jury beyond a reasonable doubt that the defendants were guilty, and we think the instruction given, coupled with one to the effect that the jury were the exclusive judges of all questions of fact, fairly presented that issue. (See 16 C. J. 1012; 8 R. C. L. 226, note 1.)\\n. A request was refused to instruct that the conduct of the dogs could not be relied on as \\\"substantive evidence\\\" upon which a conviction might be had, but might be considered with other evidence as a circumstance. An instruction was given, however, substantially like that approved in The State v. Adams, supra, which we think sufficiently covered the subject.\\nAnother instruction was refused concerning the evidence of the conduct of the bloodhounds. It was substantially like the one the court gave except for an addition to the effect that such evidence should be carefully scrutinized. We think the charge as given sufficiently covered the matter.\\nAn instruction asked and refused, concerning the effect of circumstantial evidence, contained two paragraphs, one covered by the given instructions already referred to and the other reading: \\\"Where circumstantial evidence constituting a single chain is relied on by the state for a conviction, each essential fact in the chain of circumstances must be found to be true by the jury beyond a reasonable doubt.\\\" There is a conflict in the authorities concerning the correctness of such an instruction as that quoted, allied in some degree with a dispute regarding the rival theories of the analogy of circumstantial evidence to a chain on the one hand or to a cable on the other. (See note, 41 L. R. A., n. s., 749.) In the present case the charge did not contain the language asked but did say that in order to convict \\\"the state must prove and establish each one of the material averments of the information by the evidence and beyond a reasonable doubt\\\" and that to justify an inference of guilt from circumstantial evidence alone the proof must be absolutely incompatible with the innocence of the defendants, and incapable of explanation upon any other reasonable hypothesis than that of their guilt. The requested abstract instruction purporting to apply \\\"where circumstantial evidence constituting a single chain is relied on by the state for a conviction\\\" would have been of doubtful value to the jury without further explanation, and its absence is not a sufficient ground for reversal, regardless of whether the chain or cable theory is to be preferred.\\nAnother requested instruction concerning circumstantial evidence was not materially different from the one given.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"8866455\", \"name\": \"John B. Thompson v. Elite Colburn\", \"name_abbreviation\": \"Thompson v. Colburn\", \"decision_date\": \"1904-02-06\", \"docket_number\": \"No. 13,510\", \"first_page\": 819, \"last_page\": \"820\", \"citations\": \"68 Kan. 819\", \"volume\": \"68\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:28:47.105658+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John B. Thompson v. Elite Colburn.\", \"head_matter\": \"John B. Thompson v. Elite Colburn.\\nNo. 13,510.\\n(75 Pac. 508.)\\nError from Woodson district court; L. Stillwell, judge.\\nOpinion filed February 6, 1904.\\nAffirmed.\\nL. W. Galbraith, and S. C. Holmes, for plaintiff in error:\\nA. J. Jones, and Ghaunoey M. Miller, for defendant in error.\", \"word_count\": \"390\", \"char_count\": \"2217\", \"text\": \"Per G-uriam:\\nThis proceeding involves the validity of the title to real estate asserted under tax deeds which have been recorded more than five years and which have been upheld by a prior judgment. It is contended by plaintiffs in error that the deeds are so defective upon their face that they are not sufficient to set the statute of limitations in operation, and that the former judgment is void.\\nAmong the matters relied upon as making the deeds void are the following: The deeds recite the payment by the holder of the certificates on which they are based of the subsequent taxes for three successive years; and show the aggregate amount paid but do not show the amount paid for each year; the amount recited in the deeds as the consideration, preceding the words \\\"taxes, costs and interest due on said land for the years,\\\" etc., is the sum of the face of the amounts paid to the county treasurer, without the addition of interest; the words \\\"an adjourned sale of,\\\" included in the statutory form of a tax deed, with the obvious purpose that they should not be used except when appropriate, were retained. None of these defects is sufficient to prevent the statute from running in favor of the deeds. (Morrill v. Douglass, 14 Kan. 293, 301; Harris v. Curran, 32 id. 580, 4 Pac. 1044; Martin v. Garrett, 49 id. 131, 140, 30 Pac. 168.)\\nA further claim is based upon the supposition that the word \\\"not\\\" was omitted from the recitals of the deeds relative to redemption not having been made. The word, however, appears in the record. It is true that it is interlined in pencil, but so are other obv- as clerical errors. No attack has been made upon the truth of the record thus corrected. The deeds being good upon their face, and having been of record five years without an attack having been made upon them, it is unnecessary to consider the questions presented regarding the former judgment upholding them.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"8866829\", \"name\": \"Donald Rider, Appellee, v. The Kansas City Terminal Railway Company and John Barton Payne, Director-general, et al., Appellants\", \"name_abbreviation\": \"Rider v. Kansas City Terminal Railway Co.\", \"decision_date\": \"1923-02-10\", \"docket_number\": \"No. 24,234\", \"first_page\": 765, \"last_page\": \"770\", \"citations\": \"112 Kan. 765\", \"volume\": \"112\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:11:26.584256+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Donald Rider, Appellee, v. The Kansas City Terminal Railway Company and John Barton Payne, Director-general, et al., Appellants.\", \"head_matter\": \"No. 24,234.\\nDonald Rider, Appellee, v. The Kansas City Terminal Railway Company and John Barton Payne, Director-general, et al., Appellants.\\nSYLLABUS BY THE COURT.\\n1. Master and Servant \\u2014 Personal Injuries to Locomotive Fireman \\u2014 Written Release \\u2014 Mutual Mistake \\u2014 Fact for Jury. Where a locomotive fireman, for the purpose of assisting the crew to take water into the engine, stepped from the cab of his engine onto the covering of a manhole which was defective, and fell astride of the lid into the manhole, suffering injuries to his testicles and groin; was attended by the physician of the company, and . after treatment for a month by the physician, was given a surgeon\\u2019s discharge from treatment to report for duty in one day, and directed by the physician to present the discharge to the claim agent of the railroad company and arrange to go to work, both the fireman and the physician believing the injury was only temporary and that the fireman was cured; and, where the fireman presents the surgeon\\u2019s discharge to the claim agent of the company, makes settlement for an amount about equal to his wages for the time he has been laid up, and is induced to sign a release relieving the company of all liability for such injury; and where it afterwards developed that the injui'y was of a serious and permanent nature preventing him from working for more than a year, and for the cure of which injury he finally underwent an operation, held, that a judgment supporting the general verdict of a jury finding the release to have been executed by mutual mistake of the parties will not be reversed.\\n2. Same. The evidence examined, and held sufficient for submission to the jury on the question of mutual mistake as to the nature and extent of plaintiff\\u2019s injury at the time of the execution of the release.\\n3. Same \\u2014 Proper Instructions. The instructions examined and found to have been justified by the evidence and to fairly present the matters to the jury.\\nAppeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.\\nOpinion filed February 10, 1923.\\nAffirmed.\\nO. L. Miller, of Kansas City, John E. Lathrop and S. W. Sawyer, both of Kansas City, Mo., for the appellants.\\nCharles A. Blair, of Kansas City, for the appellee.\", \"word_count\": \"2391\", \"char_count\": \"13452\", \"text\": \"The opinion of the court was delivered by\\nHopKINS, J.:\\nDefendant appeals from a judgment of $2,800, awarded plaintiff by the district court of Wyandotte county on account of damages sustained through falling into a manhole.\\nTrial was to a jury. The principal question was as to whether or not plaintiff was bound by the release which he executed to the company. Plaintiff was a locomotive fireman for defendant at a salary of about $180 per month. \\u2022 About 9 o'clock in the evening of March. 12, 1919, he stepped from his engine to assist the crew in taking water. He stepped on one edge of the cover or lid of a manhole three or four feet from the track which tipped over and he fell into the hole astraddle of the cover or lid, thereby inflicting the injuries complained of. He was taken to a near-by rest room for a short time and then conveyed' to his home. The next morning he was attended by Dr. Hayward, physician of defendant; was in bed most of the time during the next two days, during which time Dr. Hayward gave him the necessary medical treatment. He was told by Dr. Hayward that as soon as he could walk he should see Dr. Pickard, the main physician of defendant at the Union Station, and on the 17th of March he visited Dr. Pickard and began receiving treatment from him. This treatment continued up until the 8th day of April, when plaintiff was given a surgeon's discharge by Dr. Pickard. Plaintiff testified that Dr. Pickard said to him that, \\\"I was all right and O. K. to go to work; and for me to go in and see Mr. Carlson (defendant's claim agent) and get things straightened up and go to work.\\\" The surgeon's discharge certificate was as follows:\\n\\\"Form 157.\\n\\\"Kansas City Terminal Railway Company,\\nSurgeon's Discharge Certificate.\\n4-8-1919.\\n\\\"To Jno. Carlson:\\n\\\"The bearer, D. A. Rider, occupation, fireman at., has been under my professional care since 3-17-1919, and is hereby discharged from treatment, and may report for duty in 1 days.\\nM. W. Pickard, Surgeon.\\\"\\n\\\"This certificate to be filled out by the surgeon and given to the employe, who will present it in person to his superior officer.\\\"\\nPlaintiff took this certificate to Mr. Carlson and had negotiations for a settlement which were concluded April 14, at which time plain- _ tiff received $180, and signed the release in question. It contained these statements:\\n\\\"I do hereby compromise said claim and do release and forever discharge (naming the director-general, the Kansas City Terminal Railway Company and other railroad companies) from any and all liability for all claims for all injuries, including those that may hereafter develop, as well as those now apparent, and also do release and discharge them from all causes of actions and claims for injuries and damages, which I have, or might have, arising out of such injuries, either to my person or property, and from all claims, demands or causes of action whatsoever which I may have against them, and do hereby acknowledge full satisfaction of all such liability and causes of action, it being the intention of the parties that all matters of difference between them shall be and are hereby compromised and settled.\\n\\\"It is expressly understood and agreed that the above-named sum paid is the sole consideration of this release and the consideration stated herein is contractual and not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein; and no promise or representation is or has been made relative to future employment.\\n\\\"In mailing this settlement I do not rely upon any statement of any doctor, physician or surgeon as to what my physical condition was, is, or will be in the future, as a result of my injuries, and I do not make this settlement because of what anyone has told me about what condition is or will be.\\n\\\"I have read this release. I know that I am settling for everything and that no representations of any kind have been made to me.\\\"\\nAfter executing the release, plaintiff was given a note by Mr. Carlson to the master mechanic, being told by Mr. Carlson to \\\"Take it down to Mr. New and go to work.\\\" He took the note to Mr. New, but was not permitted to resume work. The testimony shows that plaintiff had not recovered. The following appears in the record:\\n\\\"Q. Now, what was your condition- \\u2014 after about the 15th of March up until December? A. Well, at times I was in pretty fair condition, and at other times I was clear down, and wasn't able to get on my feet at all.\\n\\\"Q. Now, what was the condition of jmur testicle with reference to being swollen? A. Well, at times, it would swell up considerably, then it would be lots worse at times than at other times when I was on my feet \\u2014 -just depend on what I done. If I done anything that I strained myself the swelling would come back and would be so bad that I couldn't walk.\\n\\\"Q. Were you confined to your bed any part of that time? A. Yes, sir.\\n\\\"Q. About how much? A. Well, that depends \\u2014 sometimes one day at a time, and other times as high as three weeks at a time.\\n\\\"Q. Who took care of you during that time? A. My wife, mostly.\\\"\\nThe evidence further shows that late in the fall the plaintiff had improved to such an extent that Dr. Pickard, after examining him, again sent him back to work. He worked something like six weeks or two months, when the swelling of the testicle came back and again incapacitated him from work. The company again sent Dr. Hayward out to give him the necessary medical treatment and attention, and the evidence shows that from February until some time in August the plaintiff gradually grew worse. In regard to his condition from February until August, plaintiff testified as follows:\\n\\\"Why, I was getting in worse shape. The swelling seemed to increase and get larger all the time, and the pain was more severe.\\n\\\"Q. How much of the time was you confined to your bed at any time? A. Three weeks was the longest at any one time until I went to the hospital.\\\"\\nPlaintiff was operated upon in August, after the operating surgeon had drained five teacupfuls of pus from his testicle and groin.\\nThese questions were asked and answers given:\\n\\\"Q. Now, Mr. Rider, I will ask you to state if at the time you signed this release dated the 14th of April, 1919, if you had known or believed that you had not recovered from the injury that you received on or about the 12th day of March . . . that you would not be able to work for some time, and that you would have to undergo an operation before you was cured, I will ask you to state whether or not you would have signed that release. A. No, sir. I wouldn't have signed the release if I hadn't thought I was able to go back to work.\\\"\\nIt is contended by the defendant that plaintiff was not acting in good faith; that on the day after the injury, \\\"he went to the office of Dr. Russell (his family physician) for treatment for his injuries and made several visits to him and received treatment; that, as a witness he was evasive in his answers relative to treatments received from Dr. Russell; that, from the time of the injury up until December, when plaintiff resumed 'work with defendant, he was operating a coal yard; that there was doubt as to whether or not there was a formation of pus in the region of the injury,\\\" and other claims of like nature. The defendant, however, produced no testimony to dispute plaintiff's claim. These questions were all considered by the jury under sufficient instructions from the court and decided adversely to defendant's contention. On his part, plaintiff contends that, not only was he mistaken as to the extent of his injury at the time of executing the release, but that defendant's physician who had charge of his case was also mistaken; that it was a mutual mistake of both parties.\\nDefendant complains of the action of the trial court \\u2014 1st. In overruling defendant's demurrer to plaintiff's evidence. 2d. In denying defendant's request for peremptory instruction in favor of the defendants; and 3d. Because of certain instructions given to the jury.\\nAfter the last assignment defendant states: \\\"Our complaint under this assignment is that there was no evidence in the case justifying the court in submitting to the jury any question touching the accident or involving the validity of the release.\\\"\\nIt will be seen that all the assignments of error go directly to the validity or invalidity of the release. In our opinion the instructions given were justified by the evidence and fairly presented the matter to the jury.\\nIn the case of Smith v. Kansas City, 102 Kan. 518, 171 Pac. 9, the court used this language:\\n\\\"Of course, there is the usual dispute as to the extent of the injury, and the \\\"usual conflict in the medical evidence, but these things were for the jury, and there appears in the record sufficient basis for their conclusions.\\\" (p. 521.)\\nIn Miller v. Gas & Fuel Co., 108 Kan. 124, 193 Pac. 896, this court said:\\n\\\"If the plaintiff had been discharged from the hospital with the assurance that he was cured and would soon have normal use of his arm, this court would regard the doctor's statement to that effect as one of fact. (Weathers v. Bridge Co., 99 Kan. 632, 162 Pac. 957; Smith v. Kansas City, 102 Kan. 518, 171 Pac. 9; Wolf v. Packing Co., 105 Kan. 317, 182 Pac. 395.)\\\" (p. 129.)\\nThe evidence was sufficient to take the case to the jury on the question as to whether or not plaintiff and defendant were mutually mistaken as to the nature and extent of plaintiff's injury at the time the release was executed.\\nIn Parrott v. Railway Co., 111 Kan. 375, 207 Pac. 777, this language was used:\\n\\\"It is manifest that the release was executed by the plaintiff in the belief that the injury was slight, and that its effect would pass within a few days. He was induced to think so by the statement of the doctor that the soreness would soon pass away. Plaintiff testified that he had 'implicit faith in Dr. Dingess and believed what he said and believed he wo.uld be well in a few days.' If the statements of the doctor were honestly made heJwas likewise mistaken as to the nature of the injury and it may be inferred that the claim agent who cooperated with the doctor did not understand that it was as serious as it turned out to be. The nominal amounts proposed in settlement of the claim and the amount finally agreed upon tends to show that the claim agent and the doctor both regarded the injury as slight and temporary. The trifling consideration given in payment of a serious and permanent injury argues strongly that there was either a mistake of facts on their part, or that the release was fraudulently procured. Assuming that all were acting in good faith, it is manifest from the evidence that they were mistaken as to the character of the injury, and that under the circumstances the release was not binding.\\\" (p. 377.)\\nThere are numerous authorities which sustain an avoidance of this release on account of the mistake of fact. See Wolf v. Packing Co., 105 Kan. 317, 182 Pac. 395; Crawn v. Packing Co., 111 Kan. 573, 207 Pac. 793; Bertha v. Regal Motor Car Co., 180 Mich. 51, 146 N. W. 389; Great Northern Ry. Co. v. Fowler, 136 Fed. Rep. 118.\\nWe see no reversible error. The judgment is affirmed.\"}"
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+"{\"id\": \"94328\", \"name\": \"Arthur S. Kendall et al. v. D. M. Smith, as Sheriff, et al.\", \"name_abbreviation\": \"Kendall v. Smith\", \"decision_date\": \"1903-05-09\", \"docket_number\": \"No. 13,122\", \"first_page\": 90, \"last_page\": \"94\", \"citations\": \"67 Kan. 90\", \"volume\": \"67\", \"reporter\": \"Kansas Reports\", \"court\": \"Kansas Supreme Court\", \"jurisdiction\": \"Kansas\", \"last_updated\": \"2021-08-10T21:22:59.112936+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concurring.\", \"parties\": \"Arthur S. Kendall et al. v. D. M. Smith, as Sheriff, et al.\", \"head_matter\": \"Arthur S. Kendall et al. v. D. M. Smith, as Sheriff, et al.\\nNo. 13,122.\\n(72 Pac. 543.)\\nSYLLABUS BY THE COURT.\\nInjunction \\u2014 Judgment of Justice \\u2014 Right to Equitable Relief Not Shown. In an action on a money demand, pending before a justice of the peace, judgment was rendered against the defendants after an appearance by both parties. The same day plaintiff filed a motion for a new trial, which the justice set down for hearing fourteen days later, counsel for defendants having notice of the time when the motion would be disposed of. At the time set the motion was sustained, defendants not appearing. The trial was then adjourned to another date, four days thereafter, at which time judgment was rendered against one of the defendants for an amount in excess of the first judgment. Defendants were not present in person or by Oounsel when this judgment was entered against them. In a suit to enjoin the levy of an execution based on the judgment, the defendants (plaintiffs below) did not complain that the judgment was unjust or that the debt on which it was founded Was not a valid demand against them. Held, that the execution debtors had no right to equitable relief; apd held, further, that the entry of judgment without notice was at most a mere irregularity or erroneous act, which did not render the judgment void and subject it to collateral attack.\\nError from Graham district court; Charles W. Smith, judge.\\nOpinion filed May 9, 1903.\\nAffirmed.\\nGeorge W. Jones, for plaintiffs in error.\\nR. V. Wilcox, for defendants in error.\", \"word_count\": \"1135\", \"char_count\": \"6391\", \"text\": \"The opinion of the court was delivered by\\nSmith, J.:\\nThis was a suit against the sheriff to enjoin the levy of an execution. The agreed facts are as follows : On August 24, 1901, an action was tried before a justice of. the peace wherein the Kansas City Pump Company was plaintiff and Arthur S. Kendall and Carrie Kendall were defendants. The respective parties appeared by their counsel. Judgment was rendered against both of the Kendalls for $117.10, and against Arthur S. Kendall for $53.02. The same day plaintiff in the action filed its motion for a new trial, which the justice set down for hearing on September 7. Counsel on both sides received notice that the motion would be taken up at that time. On the last-mentioned date the motion was heard and sustained. Counsel for defendants did not appear. The time for the second trial was then set for September 11, of which the Kendalls and their counsel had no notice. On that date a trial was had. Judgment was rendered against both of the Kendalls for $117.52, and against Arthur S. Kendall for $116.28. There was no appearance on their part. The court below refused to enjoin the levy of an execution based on this judgment, and the Kendalls have come here by proceedings in error.\\nThe petition of the plaintiffs below contains no averment that the judgment was not founded on a just indebtedness. They rest their right to relief on the technical point that the justice of the peace was without power to render the judgment.\\nInvoking the aid of a court of equity, they must arouse the conscience of the court by showing that a wrong has been suffered by them. A party owing a debt is not wronged by the rendition of a judgment against him for the amount, for his obligation is to pay without judgment. For this violated duty the plaintiff's below offered no excuse. Whatever the rights of plaintiff's below may have been in a proceeding at law to vacate or set aside the judgment, in an equitable suit to accomplish the same end their standing depends on their doing, or offering to do, that which is equitable. In Tootle v. Ellis, 63 Kan. 422, 424, 65 Pac. 675, 676, 88 Am. St. Rep. 246, the court said;\\n\\\"Some cases hold that in cases where no process at all has been served on the defendant the collection of the judgment may be enjoined without showing a defense to the original action, but a large preponderance of the authorities hold that, notwithstanding an alleged want of service of process, a court of equity vyill not interfere to set aside a judgment until it appears that the result, upon a subsequent trial, will be other than, or different from, that already reached ; or, in. other words, that there was a defense to the action, either entire or partial. ( Freem. Judg. \\u00a7489, and cases cited.) The general principle, as laid down in High on Injunctions, \\u00a7 114, is that it must be shown to be against good conscience to execute the judgment sought to be enjoined.\\\" (See, also, Knox County v. Harshman, 133 U. S. 152, 10 Sup. Ct. 257, 33 L. Ed. 586, and Texas-Mexican Ry. Co. v. Wright, 88 Tex. 346, 31 L. R. A. 200, and note.)\\nFurthermore, we regard the failure of the justice of the peace to give notice to the defendants in the action of the time when the second trial would be had as a mere irregularity ; at most an erroneous omission. If counsel for the Kendalls had been present on September 7 when the motion for a new trial was sustained, of the hearing of which motion he had notice, he would have been apprised of the date which the justice set for the second trial. The.parties were all before the justice. He had jurisdiction over them and over the subject-matter of the action.\\nThe action of the justice was irregular or erroneous merely, and not destructive of his jurisdiction. In the case of Barnhart & Brother v. Davis, 30 Kan. 520, 2 Pac. 633, the requirements of section 5306, General Statutes of 1901, received consideration in an action like the present. That section deprives a justice of the peace of any discretion to refuse a change of venue when an affidavit is filed with him by either party to the action, stating \\\"that he verily believes that he cannot have a fair and impartial trial before such justice, on account of the bias or prejudice of the said justice against the affiant.\\\" A refusal by a justice of the peace to grant a change of venue after such an affidavit was filed, and judgment for costs confessed, 'was held not to make the judgment rendered t)y him subject to collateral attack by injunction to restrain the levy of an execution issued for its enforcement. The ruling of the justice in denying the change of venue was held to be merely erroneous and the judgment voidable only. To the same effect see Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62.\\nThe judgment of the district court will be affirmed.\\nAll the Justices concurring.\"}"
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