Volume 2 — Kansas Reports

Quo Warranto. Tlie facts in tbe case were agreed upon substantially as follows: February 14, 1862. Held: and still doth use and exercise the office of Auditor of the State of Kansas without lawful warrant or authority therefor: That the said Hillyer was impeached by the House of Eepresentatives on the 14th day of February, A. D., 1862, by articles duly presented to the Senate, and that on the 16th day of June thereafter the Senate,…

Quo Warrmito. This was an information in tlio nature of a Quo Warranto, inquiring of the defendant by what authority he held and exercised the office of Chief Justice of the State. The facts in the case were agreed to and are as follows : Hon. Thomas Ewing, jr., was elected Chief Justice for a term of six years from the 29th of January, 1S61, and entered upon the discharge of his official duties.

MoUonfor writ of Mandamus. The facts of the case appear in the opinion of the Court. The writ of mandamus will issue to compel inferior tribunals and public officers to perform positive duties, upon their refusal so to do. The expiration of the time within which a duty is to be performed by public officers without performance, is a refusal to perform.

Error from, Atchison Coimty District CJowrt. The facts of the case sufficiently appear in the subjoined opinion of the Court. 1st. The Court erred in permitting the plaintiff to insert the word “ petition ” in the original pretended petition on file. The Court had the undoubted right to permit the plaintiff to amend his petition. But the amendments cannot be made by interlineation of matter of substance, though clerical errors may thus in some cases be cured.

Error from Douglas Ooimty. This was an action in the usual form on a note, as follows : “ Leoompton, K. T., March 9th, 1858. Twelve' months after date I promise to pay H. G-. Eant or order, for value received, two hundred and fifty dollars, and if not paid at maturity, then to draw interest at the rate of ten per cent, per month until paid. (Signed) T. H. Clemo.” And a mortgage given by Clemo to secure said note.

Tbe facts of the case appear at length in the opinion of the Court. I. The bonds upon which suit was brought in the District Court, are void. They were issued without authority of law, and in contravention of an express provision of statute. These bonds were issued by the Board of County Commissioners of the County of Shawnee to the defendant in error in payment for the construction of a court house at the town of Tecumseh.

Error from, Atchison Covmty. The facts of the case appear in the opinion-of the Court. 1st. It does not appear from the petition that the action is debarred by the statute of limitation, but on the contra-ay it does appear from the petition (and also the answer) that the cause of action accrued against the defendants in the State of Ohio, and while they were out of this State; and by Section 28 of the Code of Civil Procedure; the defendants being out of the State vsdien the…

Error from, Leavenworth County. Judgment was entered in the Court below February 18, 1860, against the defendant below, and in favor of the plaintiff for $3,500.11 and costs, and on the 22d day of February, and during the same term of Court, a decree was entered, that in default of payment an order issue for the appraisement and sale “ of the property described in said plaintiffs petition.” An order of sale was issued March 17th, 1860, an appraisement had and sale…

D. 1863, of tbe Criminal Court of Leavenwortb County, tbe following proceedings were bad, that “Now cometb tbe grand jury in a body into open Court, and through their foreman, H. B. Keller, present to tbe Court six bills of indictment, each endorsed “ a true bill ” and signed H. B. Keller foreman. * * * And that afterwards there was recorded the following, to-wit : Record of indictments February Term, 1863. * * The grand jurors of the State of Kansas and in and of the County…

Error from, Wyamdotte Oounty. The ease was submitted on briefs.

<p> Error from Wyandotte County. </p> <p>This case was submitted on the same briefs and arguments made in Robinson v. Lois ICinney.</p>

<p> Error from Douglas County. </p> <p>The facts of the case appear in the subjoined opinion of the Court.</p>

<p> Error from Atchison Cmmt/y. </p> <p>A statement of the facts of the case appears in the opinion of the Court.</p> <p>•1st.’ The Court erred in not confirming the sale made to Challis of the N£ of lot 9 in block 19.</p> <p>The proceedings under the order of sale are all regular. This is admitted. The Court then could only confirm or set aside the sale. See code, Sec. 449.</p> <p>2d. The Court erred in admitting the testimony offered by the defendants in error. It was trying the title to the premises on a motion to confirm a sale. The Court could not thus try this title. The party is entitled to a jury o'n the trial of title of real estate.</p> <p>In this case the Court, notwithstanding the objections of the plaintiff in error, tried the title to the land in controversy, giving the plaintiff in error no chance to be heard before a jury. Code, Sec. 214.</p> <p>The Court could hear only such testimony as proved or disproved the legality of the sale. Code, Sec. 449.</p> <p>The Court erred in ordering a deed to be made to Wise & Crookham.</p> <p>The subject matter of the motion was res adjuddcata. The judgment of Challiss v. Headley & Carr and Wise & Crookham, enjoined Wise & Crookham from setting up or claiming any interest in or to the premises in controversy.</p> <p>The right of Wise & Crookham in the premises, had been' passed upon and settled, and so remains till that judgment is set aside or reversed.</p> <p>The following authorities settle this question in favor of the plaintiff in error:</p> <p>2 Parsons on Contracts, 234; Grant v. Pamsey, 7, O. S. P., 157; Simmons v. Dunn, 4 O. S. P., 680; 2d Phil, Ev., (3d Ed. 1849,) 4-5-9-13; Phil. Ev. Vol. 4, Note 13, p. 13, ei seq.; Gardner v. Buckhall, 3d Cow. 120; Broom’s Legal Maxims, 243-131; Doty v. Brown, ComstocFs P., Vol. 4, 71; Smith’s Leading Cases, (esiopple by record, 667,) and cases cited; Eversol v. Plank, 17 O. P., 61; George v. Gillespie, :1 Iowa, 421; Chase v. Walker, 20 Pep., 555; 10 O. P. 300; 9 O. P., 67; Young v. Black, 7 Cranch, 565; Hites v. Enos, 13 O. S. R., Mss.</p> <p>Plaintiff was not entitled to confirmation asked for.</p> <p>I. lie had no legal judgment against Headley & Carr.</p> <p>II. Defendants were not legally notified of his suit, being misled by the summons, 2d, There was no prayer for relief against them in plaintiff’s petition. Nash, Note B and D, Addenda, p. 781; Seney, p. 78, Note B and C\ Nash,p. 54; Civil Code, Sec. 94, p. 139.</p> <p>III. Defendants were not notified of appraisement made by plaintiff, and hence, the sale was illegal as to them. Chap. 172, y>.’773; 2 O. S. R., 406.</p> <p>IY. After the property had been sold to defendants, it could not be sold to plaintiff, and hence there was no sale to confirm.</p> <p>But one sale of same property could be made upon process against same defendants. Nash, 607; 5 O. P., 522.</p> <p>Plaintiffs execution was void because it did not follow judgment. Nash, p. 589; see Transcript,p. 9-</p> <p> Defendantd confirmation legal. </p> <p>He had a valid judgment. His lien became fixed by-levy of execution several months before plaintiffs mortgage, and having no interest in said land, except such as might remain after defendants lien was satisfied. See Statute, p. 862, See. M3 Cimil Oode,p. 194.</p> <p>Their sale was regular. Plaintiffs lien being subsequent to defendants said levy, was not entitled to notice of appraisement.</p> <p>Defendants lien not foreclosed by plaintiff, 1st. Because not notified of suit. 2d. Because it was a prior right and not affected by proceedings upon rights accruing subsequently. Civil Code, See. 426. See Smey, 360, Note G\ 17 O. B., 578; 14 O. B., 318; 16 O. B., 533.</p> <p>Only when judgment becomes dormant, does lien cease. Seney, 342, Note B; 10 O. B., 403.</p> <p>The Court did right in examining the proceedings to ascertain if there was a legal foundation for the execution upon which the sale was made. If not, no sale was made,</p> <p>If the Court could not go behind the Sheriff’s return, plaintiff could not show that defendant was foreclosed.</p> <p>Defendant having an interest in the property was entitled to be heard on plaintiffs motion to confirm.</p> <p>It is a principle well settled, that a Court in reviewing errors, will go back to the first error committed, and if upon examination it be found that the party complaining has not been injured, the judgment will not be disturbed.</p> <p>The plaintiff not having a legal .judgment’, the defendant having had no notice of appraisement, and such property not having been legally sold ' on plaintiffs process, same being on a lien subsequent to that of another process to sell at same time, in hands of Sheriff, plaintiff could not be entitled to a deed, and hence his rights were not affected by the judgment of the Court below.</p> <p>Judgment below should be affirmed.</p>

Error from Wya/ndotte County. The record shows that on the 16th day of June, A. D, 1862, the defendant in error filed his amended petition in the Court below, setting forth, 1st. That hé was the owner in fee of the lands on both sides of the Kansas river, at its junction with the Missouri, and for some distance up said river; that he owned the land on the south side of said river by virtue of a patent from the United States to him, dated 13th July, 1857, issued in pursuance…

Error from Shawnee Coimty, On January 19th, 1860, defendant Stees executed his note and mortgage to plaintiffs on land described therein, as the E. & of S. E. Sec. 14, T. 13, R. 14, May 14th, 1862, plaintiffs commenced action to foreclose the mortgage, setting forth a mistake in. the description of the land, in this, that it should have been the E. i of N. E. J of said Section, and asked a reformation of the mortgage.

Error from Shawnee County. The facts of the case sufficiently appear in the opinion of the Court. By the 6th Article of the Treaty between the United States and Kansas Tribe of Indians of June 3d, 1825, (7, U. S. Slat, at Large, 244-5,) certain reservations are made one mile square, to certain half-breed Indians named. The defendant in error was entitled to one of said reserves, to be located on the north side of the Kansas river, numbered in the order named in the Treaty.

Hrror from Lemenworth County. This was an action for malicious 'prosecution, brought in the District Court of Leavenworth County by defendant in error… Held: that' if the party, no matter however honestly he did it, withheld from, or omitted to state'to the counsel any material fact in the case, the defense that the prosecution was commenced under advice' of counsel, failed, and amounted'to nothing. In this the Court erred. The law only requires a party to act in good faith.

Error from Atchison County. An action in the nature of ejectment brought by the State of Kansas against the defendant in District Court of Atchison County, to recover the possession of a part of the… Held: that Greene’s rights attached from, the day- of the grant, and that nothing remained but to determine the exact location of his tract, in order to make his title to such tract perfect from the day of the grant. Wherein does that decision affect the case at bar?

Error from Shawnee County. Motion for Writ of Mandamus. The facts of the case appear fully in the opinion of the Court. Case and Elmore argued the case for relator on the following points: The whole proceedings in contested elections are statutory, and we must look to the statute alone. Section 13, page 508, Compiled Laws, determines and fixes the Court having jurisdiction in cases of contested elections of county officers.

Error from, Shawnee County. The petition in the case below contained a cause of action for $200, the value of a carriage sold by plaintiff below (defendant in error,) to defendant below, (plaintiff in error).

Error from Donophan County. The facts of the case appear sufficiently full to present the points decided, in the opinion of the Court. 1st. The acceptance of the note by plaintiff below, operated as a bond for a deed. Plaintiff in error was to have a deed when he paid the note, and defendant in error was to give a deed when the note was paid. Neither party could seek the courts to enforce the contract until he had performed on his part, respectively.

Error from Shawnee County: The facts, of the case sufficiently appear to present the points determined by the Court, in its opinion.

Mrror from, Leavenworth Oounty. Replevin was brought by defendant in error in tlie Court below. .Plaintiff in error justified his possession of the property by. pleading, that he was Sheriff of Leavenworth County; that he had the property in his possession by virtue of an attachment issued in a case wherein Adam Jacobs was plaintiff and Louis A- Welton, defendant.

Error from Leavenworth County. The record discloses no instructions of the Court, and does not purport to give all the evidence, only such portions of it as were necessary to show the connection of that specially excepted to, and that which was so specially excepted to. This appears sufficiently full in the opinion of the Court.

Error from Leavenworth County. This action was tried by a jury in the District Court for Leavenworth County.

Error from, Leaweivworih County. The facts of the case, sufficient for the presentation of the points decided, appear in the opinion of the Court. Held: that tbe effect of this provision of tbe code Was to leave tbe right of set-off unaffected, and that tbe case was to be decided according to tbe law of seboff, as established by tbe revised statutes; that tbe only change made was in tbe form of tbe action.

Error from Shawnee County. Tho facts of the case appear in tlio opinion of the Court sufficiently to present the points therein decided. 1st. Tho note sued upon was entitled to days of grace, and the Court should have so charged. 2d. Tlie Court erred in charging the-jury that the plaintiff’s right of action Avas barred by the limitation of two years. AvM c& Auld v. Putoher do Putoher, Mss., Sup.

Error from Marshall County. The “ petition on appeal ” filed in the District Court on the appeal of this case by plaintiff, set forth: “ The said plaintiff, George Needy, complains of Mary Miller, Peter Gift, and A. Taught, for that on the 21st day of February, A. D. 1863, they executed their certain bond in an action of replevin then pending before William P. Hess, a justice of the peace for Marysville township, Marshall County, Kansas, in an action of replevin, wherein…

This case was commenced in the District Court in Leavenworth County. The facts sufficiently appeal* in the opinion of the Court. I. The officer levying execution upon lands must cause the same to be appraised (Corny. I., 198, Sec. 44); and that no such lands shall be sold for less than two-thirds of the appraised value thereof. (Id., Sec. 46, yy 198-9.) 1. What is the effect of a sale without observing these requirements ?

This case arose in Donophan County, The facts therein, súfficient for the presentation o'f the points decided} appear in the opinion of thd Court. ' 1st. The Court erred in holding that, Wm. Kirby was a competent juror. The Constitution Sec. 10, Bill of Rights, provides the trial shall be by an impartial jury. The Code of Criminal Procedure, Sec. 181, is in conflict with the spirit and the lettér of the constitution.

Error from Brown County. Action below by defendant in error on a note and mortgage against the maker, plaintiff in error, and Thomas Hartwell, trustee in the mortgage for plaintiff below, and George B. Lyon and wife, 'subsequent purchasers, praying for judgment and decree of foreclosure and sale of mortgaged premises. Petition filed April 4th, 1863.

<p> Appeal from Wymdotte County. </p> <p>The note sued on was drawn payable to Eliza Brown or order. The defendant below offered to prove that the note was actually the property of Isaac W. Brown, husband of the said Eliza, and that the defendant below had paid the money due on the note as a garnishee in an action against said Isaac "W\ Brown. The evidence was rejected, by the Court below, and defendant below duly excepted and brought the ease up on a bill of exceptions.-</p> <p>Several specific questions of the admissibility of evidence were shown by the bill of exceptions, but the Court decided the case on the general principle enunciated in the opinion.</p> <p>1st. The plaintiff in error (defendant below,) ought to have been permitted to show that the note was the property of Isaac 'W.- Brown, and that he (defendant below,) was compelled to pay it as garnishee, while the note was the property of Isaac.</p> <p>The simple fact that the note was drawn to “ Eliza Brown or order,” does not make it her property. Defendant claimed the right to show that this was done to defraud creditors. 17 Mass. R., 552-558.</p> <p>2d. There is no provision in our statute for a claimant of funds in the hands of the garnishee being made a party to the suit, to conclude his rights.</p> <p>3d. The question whether the fund in the garnishee’s hands is defendant’s or not, may be determined. Comp. B., 623, Sec. 42.</p> <p>If the garnishee discloses fairly, the payee of the note, though not a party to the suit, will be bound. Seward v. Heflin, 20 Vt. R., 144; Spafford v. Page, 15 id. 490.</p> <p>4th. Gilliford, plaintiff in the suit against Isaac W. Brown, in which case defendant below was garnisheed, had a right to show that the note was' given for Isaac W. Brown’s property and made payable to his • wife as a cover to prevent a garnishee process. Camp v. Scott and Ciarle, Trustee, 14 Vt. R., 387; Marsh v. Davis, 24 Vt. R., 363.</p> <p>5th. Plaintiff in error might prove any defense in this case that Gilliford could in a suit against Brown to charge the plaintiff in error as garnishee of Brown on account of this note. Comp. L., 624, Sec. 42.</p> <p>6th. The evidence was admissablo under .the pleadings to disprove ownership in the subject-matter of the suit.</p> <p>7th. A fraudulent transaction may always be impeached by creditors.</p>

At the spring term A. D. 1863, of the District Court for Chase County, the plaintiff in error, John S. Wise, was indicted for murder for the killing of Robert Bailie in Marrion County, Kansas, on the 4th of July, A. D. 1862,—Mai'-rion County being attached to Chase County for judicial purposes. At the same term the case was transferred to Lyon County for trial.

Criminal Appeal from Shawnee County. Facts in tlie case relative to the points decided appear in the opinion of the Court. In addition to the facts therein contained the copy of the indictment following is inserted: “In the District Court Third Judicial District, State of Kansas, sitting in and for the County of Shawnee in said State of Kansas, of the November Term, in the year of our Lord one thousand eight hundred and sixty-two. “The State oe Kansas vs. Jas.

This was an action brought in the First District Court for Leavenworth County by the defendant in error to recover a balance alleged to be due from plaintiffs in error, as bankers to him, for money by him deposited with said plaintiffs in erroi\ The answer to the original petition after setting up the true state of the account for a second cause of defense, alleged that the actual balance due from these plaintiffs to this defendant was, after the commencement of the action…

<p>This was an action brought by the Hoard of County Commissioners of Jackson County, against Albert Fuller and Ills sureties on his bond as Treasurer of that County. The petition set forth the bond, its execution, delivery and approval according to law, tbe entering upon tbe duties of tbe office under it, the collection of moneys for tbe county by him as such Treasurer, a settlement after several unsuccessful attempts between him and tbe board, sets forth tbe account in fall with all the items showing a balance due with all tbe acts of the board- thereon a demand of payment, and of a delivery of the Treasurer’s books and refusal to pay or deliver -to liis successor. The condition of the bond is as follows:</p> <p>' “ If the said Albert Fuller and bis deputy and all other persons employed in bis office shall faithfully execute tbe duties of said office, and if the said Albert Puller shall pay according to law all moneys which shall come to his hands as Treasurer, and will render a just and true account thereof whenever required by said Board of Supervisors or by any provision of law, and shall deliver over to his successor in office or to any other person authorized by law to. receive the same—all moneys, books, papers and other things appertaining or belonging to his said office, then the above obligation to be void, otherwise to be in full force and effect.</p> <p>The answer contained three counts, two of which are as follows:</p> <p>“ 1st. That said plaintiff ought not to have or maintain his aforesaid action thereof against them, because they say that they deny each and every allegation in said petition alleged against them, and every part and parcel thereof, and of this they put themselves upon the country.</p> <p>{i2d. And for further answer thereto, the said defendants say that they do not owe nor are they jointly or severaally indebted to the said plaintiff in the sum of five hundred and fifty-two dollars and eighty-one cents, (552.81,) or any part or portion thereof, nor are they indebted to the plaintiff as aforesaid in any sum of money whatever, and of this they put themselves upon the country.”</p> <p>The third count was held to be insufficient on demurrer, to which ruling no exception appears of record.</p> <p>Several exceptions were taken on the trial, the facts pertaining to which together with other facts in the case appear in the opinion of the Court.</p> <p>Judgment below was rendered for plaintiffs. The defendants below bring the case up on a bill of exceptions.</p> <p>1st. The Court below ought to have permitted the defendant there to disprove the items contained in account. The Court erred in holding that this statement of the County Clerk had become a record and could not therefore ' be disproved by parole. The Clerk had no legal authority to settle with Puller,—only the Board could do this. The mere fact that this report was spread out upon the journal of the proceedings of the Board did not make it conclusive upon the defendant. The original paper itself if introduced in evidence, was not conclusive upon any body, much less would a copy of it spread out upon the journal be conclusive. This report was nothing more than an opinion or declaration of the County Clerk. The original paper not being admissible in evidence, how could a copy of it spread upon the county records without any authority of law be conclusive evidence?</p> <p>The County Board had no power to make a judicial record. The Organic Act declared that the judicial power .of the Territory should be vested in certain courts, naming them, but the Board of County Commissioners is not mentioned among them. See Organic Act, Sec. 27.</p> <p>This section prohibited by implication the exercise of “judicial power ” in any tribunal except such as are enumerated in this section. But the spreading of this report on the journal could not have given it the character of a judicial record if the Board had been invested with ever so full judicial authority.</p> <p>It did not show any adjudication with Fuller. The Board could not delegate their powers to the Clerk. The Board, alone could settle with the Treasurer. Comp. Laws, 430, Sec. 111.</p> <p>2d. But if this report of the County Clerk had imported a settlement between Fuller and the Board, and if such settlement had the full force and effect of a judgment against him, yet the other defendants as Fuller’s sureties would not thereby be precluded from showing the fact, that Puller did not actually owe the Commissioners anything at the time of the settlement. The sureties had no opportunity to be heard until they were in Court. Douglas v, Smiland, 24 Wend., 35, and cases cited; 4 Sill, 522.</p> <p>1st. The Court did not err in “ruling out” the testimony of Puller to disprove certain items in the account. By the act of (1859 p. 430,) the Commissioners of the County were vested with the power to settle with the County Treasurer, to allow or disallow any items of the account, and Sec. 26, (p. 414,) provides for an appeal from the decision of the Board. This is a peculiar special provision introduced into our public system and is the only manner in which a party agrieved by the act of the County Commissioners can have their acts reviewed; there was ample remedy for the defendants in this way and failing to avail themselves of the only way laid down in the law, they can not now complain of the consequences of their own laches; besides, even if they were not concluded by the' statute referred to, the records of the County Commissioners office are made evidence by law, and facts proved by records are not to be contradicted by parole evidence.</p> <p>2d. The allegation in the petition as to the settlement is, that an accounting was had between the Treasurer and the County and a balance struct, which allegation is denied by the answer. Now, the plaintiff having proved that there was an accounting and settlement, the only evidence that the defendants could introduce under their answer, was evidence tending to deny the fact of settlement, and hence the testimony offered by the defendants “ to disprove certain items in the account,” was improper under the pleadings, was not testimony tending to disprove any allegation in the petition, and therefore was properly excluded by the Court below.</p> <p>But further as to this point, the bill of exceptions does not show to this Court, nor does the record anywhere,disclose what the record marked “ G ” was introduced in evidence to prove, it may have been introduced to prove the fact of settlement, which was a necessary fact to be proved in the case. If it was read for this purpose, the testimony offered by the defendants “ to disprove certain items in the record “ G,” was no reply to that proof, and on that ground was properly excluded by the Court. The record “ G ’’ may have been introduced to prove the date of the settlement, which it was competent to do, and “ to disprove certain items in the account,” was no answer to that evidence. If the exhibit was read to prove the items therein contained, the bill of exceptions should have shown to this Court that such was the fact. This Court can not suppose that such was the case, and upon a mere supposition proceed to overrule the judgment of the Court below. Every intendment of law is in favor of the propriety of the proceedings, and the legality of the judgments of the lower Courts, and if judgments are to be set aside it must be clearly and distinctly shown that error has been committed. An Appellate Court will not suppose error and then act as if error was actually shown by the record. Upon all these grounds then the judgment of the Court on the question of admitting the defendant’s testimony must be sustained, to-wit:</p> <p>The defendants should have appealed from the County . Board.</p> <p>Parole testimony can not eontradict a record.</p> <p>Defendants answer only denied the. fact of settlement, not the correctness of items in the settlement.</p> <p>The record fails to.show what the exhibit was introduced to prove, and it should show affirmatively that it was to prove the items before the testimony offered could be admitted.</p>

Error from Atchison Covmty. A writ of error from a decision of the Court dissolving a temporary injunction theretofore issued in an action brought by plaintiff in error to restrain the collection of taxes on lots in the City of Atchison, levied under the charter and ordinances of that city.

Error from Bhcmnee County. Case obtained judgment against Dickey before Eeuben Stees, justice of the peace in Shawnee County, and had execution issued and a levy made on an iron safe, which was thereunder sold and bid in by Case. Hannahs after-wards attached a safe in the hands of plaintiff as the'property of Dickey. Case brought an action in District Court to recover the safe as his own property. A jury was empanneled and sworn in the case.

Error from Douglas County. This was áü action instituted by Firman, plaintiff below, on a promissory note, of which the following is a copy: “ $500;00. Held: even that the “agreement” implies both promise and consideration, and that the change in the phraseology of the statute has not changed the rule of decision. Rogers v. Kneeland, 10 Wend., 218; Bennett & Pratt 4 Den., 271.