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The opinion of the court was delivered by Hoch, J.: This was an action to recover from county commissioners and their bondsmen for damages which the plaintiff alleged resulted from the wrongful taking and leasing of real estate belonging to him. The appeal is by the plaintiff from an order sustaining defendants’ objection to the introduction of evidence, and from judgment thereupon entered for the defendants. Treating the objection to introduction of evidence as tantamount to a motion for judgment on the pleadings and the opening statement, the question here is whether upon the allegations of the petition and the admissions of the opening statement and of the reply, the plaintiff stated a cause of action. The transactions out of which this action arose were before this court in the recent case of Morris County Comm’rs v. Cunningham, 153 Kan. 340, 110 P. 2d 783. It will be helpful to refer first to the former case before attempting to summarize the rather lengthy pleadings in this case. Plaintiff Cunningham owned several lots in Council Grove, Kan., on which were located a number of buildings. In 1932 the property was advertised and sold for delinquent taxes of 1931 and some prior years, but those taxes were compromised and paid. Taxes for several subsequent years were unpaid, but there was no sale for taxes until 1939, when the property was sold for the delinquent taxes of 1938 and prior years and was bid in by the county. -Shortly thereafter the county commissioners took possession of the property and made various leases to tenants and collected the rent for the purpose of applying such rents upon the delinquent taxes. The commissioners based their right to take possession, hold and lease the property, upon G. S. 1935, 79-2701, which has since been repealed and superseded by G. S. 1941 Supp. 79-2706. (Laws 1941, ch. 375, §§ 30, 35.) Section 79-2701 read as follows: “That in all cases where lands or town lots are sold for delinquent taxes lawfully assessed, and bid in at such tax sale for the county in which they are situated, and held by the county under such tax sale for a period of three years or more from the date of such sale, the board of county commissioners may take possession of and lease the same to the highest bidder therefor, for a period of one year, and to continue to so lease the same until the amount due the county for taxes thereon shall be fully paid.” (Italics supplied.) Upon refusal of one of the holdover tenants to pay rent to the county or to vacate the premises, the commissioners brought action for rents and for forcible detainer.' From a judgment in favor of the plaintiffs the defendant tenant appealed to this court, where the judgment was reversed. We held that while there was no evidence of bad faith, the commissioners had acted without lawful authority; that they had taken possession of the property for leasing purposes within a few months after it had been bid in by the county, contrary to the plain provision of the statute that such action could not be taken until three years had elapsed after the property had been bid in by the county at sale for delinquent taxes. We said that compliance with the conditions of the statute constituted a condition precedent to the exercise of any jurisdiction in the matter by the commissioners. Upon reversal of the judgment, the possession of the property was returned, in due course, to the owner, together with the net rentals collected by the commissioners. The instant action followed. In his amended petition in this action, the owner, Cunningham, alleged that the commissioners took possession of the property- on December 15, 1939, without any lawful right or authority and from that date until May 1, 1941— “Forcibly and unlawfully held possession of the said property and 'deprived the plaintiff of the possession thereof, disorganized it; that is, suffered the loss of the tenants therein and removed the tenants therefrom, allowed the property to deteriorate and become and remain in bad repair, namely the roof to become damaged and leak, plaster to become knocked off, doors to be knocked down and damaged, windows broken and not repaired and general depreciation of the bindings and their equipment, greatly and seriously damaging the plaintiff in matters -more fully hereinafter set out.” Following these general allegations, the petition set out various items of alleged loss and damage, not necessary to recite here in detail. They included alleged loss of rentals aggregating $3,245; “destruction of the said business to which said buildings were adapted and used,” with damage amounting to $5,500; various injuries to roof, floors, doors, windows, plaster, etc., through lack of care, failure to make repairs when needed, etc., in a total amount of approximately $800; trial expenses, attorneys’ fees, etc., in the former litigation, about $500. The concluding paragraph of the petition alleged: “That the said defendants jointly and successively in ea;ch, every and all acts done by the said defendants in depriving plaintiff of her property as aforesaid, neither well, faithfully, nor correctly performed or executed their duties as county commissioners of Morris county, Kansas, but in all that the said defendants did as aforesaid, while pretending to. act for Morris county, Kansas, violated their duty to well, faithfully,' and correctly perform their duties as county commissioners of Morris county, Kansas, and acted beyond their duty and" jurisdiction as county commissioners of Morris county, Kansas, to the injury and damage of the plaintiff as aforesaid, and the bondsmen of said defendants respectively and as aforesaid are jointly bound with said defendants Blythe, Brown, Johnson and Lee, to indemnify and recoup the plaintiff for her loss and damages sustained by reason of the acts of the defendants as aforesaid.” The prayer was for judgment “against the defendants and each of them” in the sum of $10,026.43. The answer of the commissioners alleged that “they acted as the board of county commissioners of Morris county, Kansas, under section 79-2701 and companion sections of the Revised Statutes of Kansas of 1935 in taking over the property for rental and payment of delinquent taxes”; that the taxes on the property were unpaid “for more than three years prior thereto”; that taxes were delinquent each year from 1932 to 1939 in a total amount tif $4,796.23; that the board of county commissioners did— “Before taking over said property, make inquiry of the then county treasurer of Morris county, Kansas, to wit, Ethel Colyer, and of the then county clerk of Morris county, Kansas, to wit, W. C. Owen, as to the length of time that taxes were delinquent and the amount of back taxes upon the property involved herein and were advised that it was for the years and in the amounts heretofore set out; that the above information was requested and secured from said county treasurer and said county clerk by the board of county commissioners in the presence of the county attorney of Morris county, Kansas, to wit: Walter E. Hembrow; that the said Walter E. Hembrow, attorney, was fully advised of all of the facts and information which was in the possession of said members'of the board of county commissioners; that said board members requested advice of said county attorney as to what should be done to collect said back taxes and that they were advised by said county attorney to proceed under section 79-2701 of the Revised Statutes of Kansas of 1935 to take, over and rent said property and apply the proceeds therefrom to the payment of the back taxes against the property; that said board of county commissioners followed the advice of the county attorney.” (Italics supplied.) It was further alleged in the answer that leases were made at the best rentals that could be secured, that the net rentals from January 5, 1940, to March 12, 1941, amounting to $1,016.88, were paid over to the plaintiff following the decision in the former case. . Further, that the property was located “in the flood district” of Council Grove, and that during the same period there were many vacancies of other property in Council Grove, and that it “would be grossly in equitable” to permit the plaintiff to recover damages as long as taxes on the property were delinquent in the sum of $6,832.25. Defendants denied that they had failed to keep the property in repair. In a supplemental answer they plead— “That in event plaintiff should be entitled to recover anything in this action, there should be set off against any claim to which she might be entitled the sum of $6,832.25 for taxes due and unpaid.” Plaintiff’s reply was a general denial of all averments which in any way contradicted those of the petition. In his opening statement, counsel for plaintiff said: “As Mr. Crane has said, in this lawsuit their good faith is not questioned; we are not challenging their good faith; we are not alleging that they acted maliciously, but we are alleging that they were guilty of malfeasance. They did that which they had no legal authority whatsoever to do, and if the plaintiff was damaged by reason of their acts we think it is the law of this state and we think it is true under the pleadings as we have them here that they are responsible;” Questions of fact as to whether damage to the property was caused or negligently permitted by defendants, whether avoidable loss of rentals resulted from the way the property was handled by defendants, and many other matters were left in issue. As to these issues of fact, we must, however, here treat the situation as in case of demurrer, and assume the facts to be as alleged, admitted or not 'denied by the plaintiff. What, then, are the essential facts upon which we must determine whether a cause of action was stated? Summarized: that the commissioners took possession of the property when it had not been held for a period of three years after being bid in by the county; that they continued to deprive the plaintiff of the possession and use of the property from about December 15, 1939, to May 1, 1941; that during that period they assumed and exercised full power to lease the property; that loss and damages resulted from failure to make repairs and properly to care for the property as alleged, and that the other allegations of loss and damage suffered were true; that the county commissioners acted in good faith in taking possession and leasing the property; that the commissioners made inquiry of the county treasurer and the county clerk as to the length of time the taxes were delinquent and the amount of such delinquent taxes;that they were advised that taxes were delinquent for the years 1932 to 1939 in a total amount of $4,796.23; that said tax information was secured from the treasurer and clerk “in the presence of” the county attorney, who “was fully advised of all the facts and information” which was in their possession; that they “requested advice of said county attorney as to what should be done to collect said back taxes and that they were advised by said county attorney to proceed under section 79-2701 ... to take over and rent said property and apply the proceeds therefrom to the payment of the back taxes.” We first note a controversy as to whether the commissioners alleged and the reply admitted that in taking over the property without waiting for the three-year period to run, they acted upon the advice of the county attorney. It must be admitted that the allegation of the answer on this point—not denied by the reply—is not clear.. The allegation was that they were advised by the county attorney “to proceed under section 79-B701 ... to take over and rent said property.” Appellant contends that this is simply an allegation that the county attorney advised them to proceed under section 79-2701 and that if they had done so they would have waited for three years as the section requires. We think, however, that the allegation, more'liberally construed, means that the county attorney advised them that they had a right, under the section, to take over the property at that time. This interpretation is fortified by the later statement of the answer that they “followed the advice of the county attorney.” We come to the main issue of whether, under the facts stated, the commissioners were absolved from liability, as a matter of law. In determining that issue we must first consider the nature and extent of their jurisdiction. It is axiomatic that they have only such powers as are conferred by statute. Their general powers are enumerated in G. S. 1935, 19-212. The enumeration includes no general power in connection with the collection of taxes. Their entire lack of such jurisdiction has been declared in numerous decisions. (Brown v. The State, 73 Kan. 69, 72, 76, 84 Pac. 549; The State v. Dickinson County, 77 Kan. 540, 542, 543, 95 Pac. 392; Haucke v. Morris County, 115 Kan. 659, 660, 224 Pac. 64; State, ex rel., v. Sedgwick County Comm’rs, 150 Kan. 143, 91 P. 2d 2.) In these decisions, the fact has been emphasized that the legislature has adopted a complete scheme for property assessment, levy and collection of taxes and that' when the commissioners enter the field of tax collection—except under some special statute empowering them to do so—they invade the duties specifically placed upon other of ficials, and their acts are ultra vires and void. Furthermore, the method prescribed for the recovery of delinquent taxes being purely statutory, no method exists apart from the statute. (Ness County v. Light & Ice Co., 110 Kan. 501, 204 Pac. 536.) Under the complete legislative scheme for securing revenues, different officials are clothed with different duties. The assessors have certain duties, the county clerk has certain duties in preparation of the tax rolls and their certification to the county treasurer, and the commissioners have certain duties with reference to apportionment, levying, and the equalization of valuations and assessments, etc. In this general scheme the tax collecting officer is the county treasurer. (G. S. 1935, 19-515.) And it is the county treasurer, and not the commissioners, whose duty it is to bid in the property for the county in case it is offered at tax sale and no offer for the amount of the taxes is received. (G. S. 1935, 79-2311.) Neither in their answer nor in their argument here do the appellees claim any jurisdiction.over collection of taxes. They only alleged that they acted under G. S. 1935, 79-2701, upon the advice of the county attorney. And since they were wholly without jurisdiction to act at that time under that statute, the conclusion is inescapable that they are in precisely the same situation they would be in if 79-2701 had never been enacted. We are therefore faced squarely with the question of whether in performing acts wholly outside their jurisdiction the commissioners are free from liability because they are public officials and are acting without malice and under the advice of the county attorney. Appellees call attention to the provision of 79-2701 that the commissioners “may take possession of and lease,” etc. They say that the word may implies discretion, and on that basis they invoke the well-established rule—to which much of their brief is devoted—that when acting in a quasi-judicial capacity, public officers generally are entitled to immunity from civil liability to the same extent as are judicial officers. There is no controversy here as to that rule. Also, we may accept the view that the word “may” implies the exercise of judgment or discretion. But the trouble with the argument in this case is that the power to exercise discretion evidenced by the word “may” did not come into existence until three years had elapsed; The commissioners had not yet acquired any jurisdiction within which to exercise discretion. In support of the rule of immunity for quasi-judicial officers, appellees give us quotations from various- textbook writers. The cita tions fully support the well-established rule. But in every one of the passages quoted, the limitation is stated that immunity attaches only where the officers are acting within their jurisdiction. For illustration: “When so acting (as a quasi-judicial officer), he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision, provided the acts complained of are done within the scope of the officer’s authority.” (22 R. C. L. 485.) “The officers of a municipal corporation are not liable for errors or mistakes of judgment in the performance of acts within the scope of their authority as to which they are empowered to exercise judgment and discretion . . .” (1 Dillon, Municipal Corporations, 5th ed., 771.) “The general rule protecting judges from civil liability for acts within the limits of their jurisdiction applies to officers exercising quasi-judicial powers. . . .” (46 C. J. 1043.) “With respect to the liability to a private action of an officer performing a judicial or quasi-judicial act in a case where he has jurisdiction, the rule is forcibly and correctly stated ...” (Throop, Public Officers, 673.) “But in order to render the quasi-judicial officer exempt, he must, like the judicial, keep within the limit, fixed by law, of his jurisdcition, for if he exceeds it, except as the result of a mistake of fact, he will be liable to the party injured.” (Mechem, Public Offices and Officers, p. 427, § 641.) Many additional references might be given to show that the general doctrine of immunity is limited to acts performed within jurisdiction. (See 46 C. J. 1043, ¶ 327, and cases there cited; 22 R. C. L. 479, 485; Mechem’s Public Offices and Officers, 427-430; Waldron v. Berry, 51 N. H. 136; Mygatt v. Washburn, 15 N. Y. 316.) Appellees quote from Mechem, supra, pp. 421 to 424, citing many cases wherein public officers have been held immune, and call our special attention to the case of “county commissioners in deciding upon an application for a permit to sell intoxicating liquors.” (State v. Commissioners, 45 Ind. 501.) But in the Indiana case the commissioners had statutory authority, judicial in character, over issuance of liquor permits and the court simply followed the usual rule in refusing mandamus to control their discretionary power. As to the other illustrative cases listed—insofar as they are at all in point—we think they all involve the exercise of judgment or discretion within the general scope of the officers’ powers. There are many cases, it is true, which hold that immunity applies to mistakes of law as well as to mistakes of fact. Nearly all such decisions deal with situations where general jurisdiction of the subject matter existed but where mistake was made in applying conferred powers to a particular case. (Mechem, Public Offices and Officers, 416, 417.) The situation is very different where no general jurisdiction exists. But what shall be said as to immunity in a case where an officer makes a mistake of law as to his jurisdiction? Appellant does not argue that point and cites no authorities. Appellees give us only one citation and upon analysis we do not find in it any support for immunity in the instant case. Appellees quote from Mechem, supra, 427, 428, as follows: “As to the rule which should apply in the case of a quasi-judicial officer who is called upon to decide from the facts presented to him whether he has jurisdiction or not, and who thereupon erroneously decides in the affirmative, the authorities directly in point are not clear, but upon principle it would seem that the same rule should apply which has been noticed in respect of inferior courts and magistrates—that he is not liable where a case, belonging to a class oj which he has jurisdiction, is by complaint, affidavit, petition or other prescribed kind of proceeding, put at least colorably under his jurisdiction.” (Italics supplied.) It will be noted that Mechem limits a quasi-judicial officer’s immunity—where he mistakenly oversteps jurisdiction—to cases “belonging to a class of which he has jurisdiction,” and which are “put at least colorably under his jurisdiction.” That rule seems to run through the decisions generally. An able and comprehensive discussion of this subject will be found in the case of Broom v. Douglass, 175 Ala. 268, 57 So. 860, extensively annotated in 44 L. R. A., n. s., 164 et seq. Among the principles laid down in the Alabama case is the following: “(3) A jortiori, the judge of a court of inferior or limited jurisdiction is liable when he acts without a general jurisdiction of the subject matter, even though his act involves his decision, made in perfect good faith, that he has such jurisdiction.” (p. 272.) (See, also, 16 R. C. L. 346.) Are the conditions for immunity stated by Mechem, supra, met in the instant case—that is, “belonging to a class” over which the commissioners generally have jurisdiction, and having a “color of jurisdiction”? Clearly not as to the first conditions, because there is no class of properties as to which the commissioners have general power to collect taxes. What about the second test—that is, “color of jurisdiction”? The only statute within our knowledge under which any “color of jurisdiction” might possibly be claimed, though appellees do not invoke it, is the provision giving power to county commissioners “to make orders concerning property belonging to the county.” (G. S. 19-212, First.) But we must conclude that that statute affords no relief. This property did not belong to the county simply because the county treasurer had bid it in. The county had neither title nor possession when the commissioners took it over from the owner and had taken no steps to enforce its lien upon the property. (Smith v. City of Frankfort, 2 Kan. App. 411, 417; Warner v. Pile, 105 Kan. 724, 727, 185 Pac. 1041; Crawford County Comm’rs v. Kurent, 138 Kan. 556, 27 P. 2d 226.) And even if we should go to the extreme length of holding that the property “belonged” to the county within a broad construction of the statute, swpra, the fact would still remain that the commissioners in taking action concerning it invaded •& field which they were without authority to enter. The established rule or principle here adhered to may seem, in cases, to be harsh in its application. It may be thought so in the present case, since it is conceded that the commissioners acted in good faith and reaped no personal advantage from the acts performed outside their jurisdiction. But it is the hard case which often makes bad law. And it would not do to say that no liability can be asserted against public officers for damages resulting from acts performed wholly outside their jurisdiction and without even a “color of jurisdiction,” provided only that they act under advice of counselors and in good faith. Such a rule, while perhaps achieving a just result in some instances, would throw wide the door to countless invasions of private rights and personal liberties. (Mechem, Public Offices and Officers, 428, 429.) It follows from what has been said that the trial court erred in sustaining the objection to admission of evidence and in entering judgment for defendants. Plaintiff was entitled to a trial. Needless to say,- we are in no way passing upon' questions of alleged damage or otherwise upon the merits of the matter. All that is for the trier of facts. One other matter should be mentioned. One of the defendants, Olof Johnson, retired as a commissioner and was succeeded by another of the defendants, John Lee, on January 13, 1941, something more than a year after possession of the property was taken. Whatever question there may be concerning defendant Lee’s status as to this litigation has not been presented, here and we are not passing upon it. 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The opinion of the court was delivered by Allen, J.: This was an action to set aside a judgment. Three separate causes of action were alleged in the petition. The defendants filed separate demurrers to the petition, which were overruled. Motions to strike were filed. The court sustained the motion to strike paragraphs 5 to 14 of the first cause of action. Plaintiffs appeal from this order “as it involves the merits of plaintiffs’ cause of action.” The cross-appeal by defendants is to the order overruling the demurrer to the petition. The action is to set aside the judgment entered in case No. 5047. In that action Mary Bitsko was plaintiff and The Parsons Commercial Bank, Ray E. Bitsko and Helen M. Puckett (nee Helen M. Bitsko) were defendants. The action was to set aside and cancel certain deeds and to quiet title to certain described land. M. K. Bitsko filed an intervening petition. A brief outline of the facts leading to that action and the resulting judgment will be stated. It appears that John Bitsko and Mary Bitsko were the parents of five children (M. K. [Mike] Bitsko, George Bitsko, John Bitsko, Jr., Joe Bitsko and Marie Tallman) and had two grandchildren (Helen Bitsko Puckett and Ray Bitsko). John Bitsko died in April, 1933, testate, and under his will his widow Mary Bitsko became the owner in fee simple of the land in dispute. On May 15, 1936, Mary Bitsko executed various deeds to her children and grandchildren. The deeds were deposited in the Parsons Commercial Bank in escrow, to be delivered to the respective grantees at the death of Mary Bitsko. At the time the deeds were delivered to the bank Mary Bitsko signed and delivered to the bank an escrow agreement which directed the bank to deliver the deeds at her. death and which recited that she surrendered all claims to the possession or right of possession to the deeds. Thereafter Mary Bitsko brought an action to set aside and cancel the deeds to the defendants named above in case No. 5047. She alleged the deeds were executed at the special instance and request of her son M. K. Bitsko (father of Helen Puckett and Ray Bitsko); that she was unaware the escrow agreement contained the clause wherein she surrendered all claim to the possession or the right of possession of the deeds; that from the representations made to her by her son M. K. Bitsko she believed she could at any time demand the return of the deeds to her; that the deeds were executed and deposited in the bank by reason of the representations and deceit of her son M. K. Bitsko; and prayed for-the cancellation of the deeds so executed. To this petition the defendant Parsons Commercial Bank filed an answer stating the facts as to the deposit of the deeds and the escrow agreement. The guardian ad litem of the minor defendant Ray E. Bitsko filed a general denial. The defendant Helen Puckett in her answer alleged that her grandmother, the plaintiff Mary Bitsko, entered into an agreement with defendant that if defendant would quit school and live with her grandmother, assist in caring for her and doing the housework, that at the death of her grandmother defendant Helen was to have the land described in the deed to her; that defendant fully performed her part of the contract, and that by reason thereof she was the owner of such land subject to the life estate of her grandmother. In' the petition of intervention filed by M. K. Bitsko it was alleged that in February, 1933, his parents John and Mary Bitsko resided on a farm near Mound Valley, Kan.; that at that time intervenor was residing, and for ten years had been residing, in Tulsa, Okla.; that he was employed at a salary of $225 per month; that his father wanted him to return to Kansas and wanted intervenor “to move in with him and run the farm” on which his parents resided; t-hat if intervenor would do so he was to have eighty acres of land; that plaintiff accepted such proposal-; that he moved on the farm and complied with the contract so entered into, and that the deed executed to him by his mother after the death of his father was in fulfillment of the agreement. Upon the issues thus joined the case was tried. The trial court made findings of fact and returned conclusions of law-. The conclusions are as follows: “The court concludes, as a matter of law from the facts as hereinabove determined, as follows: “1. That the deeds hereinabove referred to, conveying the land therein described to the grantees therein named, are valid and subsisting instruments. “2. That the escrow agreement hereinabove referred to is a valid and subsisting instrument, and that said escrow agreement is by its terms irrevocable. “3. That the oral agreement entered into between John Bitsko, deceased, and the son, M. K. Bitsko, hereinabove referred to, is not within or governed by the statute of frauds. “4. That the oral agreement entered into between M. K. Bitsko and his mother, Mary Bitsko, hereinabove referred to with reference to the daughter, Helen Bitsko Puckett, living with the plaintiff, Mary Bitsko, is not within or governed by the statute of frauds. “5. That Mary Bitsko made a completed delivery of said deeds to the Parsons Commercial Bank as the agent of the grantees named in said deeds, and that said bank is now holding said deeds under the terms of said escrow agreement as the agent of the respective grantees named in said deeds for delivery to each of said grantees upon the death of the plaintiff, Mary Bitsko. “6. That plaintiff, Mary Bitsko, is not entitled to the relief as prayed for in her petition, and that judgment should be rendered herein in favor of the defendants and the intervenor, M. K. Bitsko, and against plaintiff for the costs of this action.” On April 10, 1940, judgment was entered on the findings and conclusions in favor of defendants. No appeal was taken from this judgment. The present action to set aside the judgment so entered was filed July 7, 1941. The plaintiffs claim under deeds from their mother, Mary Bitsko, dated April 18, 1940, and also under her will. Mary Bitsko died June 16, 1941. In plaintiffs' first cause of action it was alleged that judgment was secured by false testimony in that M. K. Bitsko knowingly, willfully and frauduently testified to certain falsehoods. The petition covers many pages. We insert figures to indicate the paragraphs. The petition alleges that M. K. Bitsko testified falsely (1) that he paid his mother as rent one-half of the hay on 80 acres, (2) as to the date of a certain discussion with his father for the purchase of 80 acres, (3) as to the date he worked in a glass factory, (4) as to the length of time he worked in a glass factory, (5) as to the amount of money he contributed to' the purchase of the 80 acres. We quote the next paragraph (also numbered 5 in the abstract): “5. Said defendants M. K. Bitsko, Helen M. Puckett and Ray Bitsko are not entitled to the equitable protection of this court for the reason the documentary evidence in this case shows that the domestic relation contract alleged to have been made for the benefit of said Helen M. Puckett is unenforceable because it is wholly indefinite in its terms in that it alleges that said Helen M. Puckett was to do ‘the work around the place.’ Said place obviously consisted of one hundred and sixty (160) acres of farm land and it is unreasonable to specify the duties of Helen M. Puckett in such indefinite phrases, and further, the lease executed by Mary Bitsko and Ray Puckett January 23, 1939, provides that said Ray Puckett was to furnish Mary Bitsko ‘room and board’ and said Helen M. Puckett had no liability to said Mary Bitsko whatever by reason of said lease. Said lease affirmatively shows that said Helen M. Puckett had wholly abandoned any domestic duties she had ever professed to perform relative to the care of said Mary Bitsko. “6. Said Helen M. Puckett was the wife of said Ray Puckett and she and her husband have wholly failed in the equities in this case, in that they have never extended to, nor provided for, said Mary Bitsko the value of the room and board which said Ray Puckett agreed to provide for said Mary Bitsko during the term of said lease.” Under paragraph 7, Helen M. Puckett is charged with feeding sheaf oats, whereas the lease provided that the oats should not be fed until threshed. Paragraph 8 charges that the defendants “are without equity in' this cause for the reason that they fraudulently and willfully planned and continuously cooperated to cheat, wrong and defraud said Mary Bitsko, and the objects of her bounty, by arranging to secure for themselves and for each other the deeds involved in this lawsuit.” Paragraph 9 covers several pages. We quote a part thereof: “9. These petitioners allege that on or about January 1, 1934, said M. K. Bitsko, Helen M. Puckett, and Ray Bitsko were in collusion to cheat, wrong and defraud Mary Bitsko, and these petitioners who were the prospective recipients of the bounty of said Mary Bitsko. That September 30, 1939, said M. K. Bitsko, as Michael K. Bitsko, under oath alleged that said Mary Bitsko was indebted to him in the following amounts: “Eleven days painting inside the large house (house on the home place) December 18-30, 1936, $33. These petitioners allege that at that time said M'. K. Bitsko' purchased and applied to said house 1% gallons of casine coating. That a fair and reasonable charge for applying said coating was $5. That said item was false and dishonest in the sum of $28.” Then follows an elaborate recital of similar work done and overcharges made for such work. The last sentence of paragraph 9 reads: "That said false and fraudulent accounts sworn to by said M. K. Bitsko was and is a part of the general scheme and plan followed by said M. K. Bitsko, Helen Puckett, Ray Bitsko and Ray Puckett to cheat, wrong and defraud said Mary Bitsko and to deprive these petitioners of their prospective portion and part in the estate of said Mary Bitsko and to deplete the estate of said Mary Bitsko and absorb for themselves her property.” Paragraph 10 recites that in the year 1933 the defendants began using certain farm machinery belonging to Mary Bitsko; that in September, 1940, Mary Bitsko made demand for this machinery, only a part was returned, and the balance is still -in possession of defendants. Paragraph 11 alleges that M. K. Bitsko is now indebted to the estate of Mary Bitsko in certain sums set out. Paragraph 12 is a recital of a dispute between M. K. Bitsko and his mother concerning a lumber bill. Paragraphs 13 and 14 contain a recital of certain transactions after the date of the judgment which plaintiffs seek to set aside. In paragraphs 2 and 15 plaintiffs claim to own the land in dispute under deeds and the last will of Mary Bitsko. The second cause of action refers to the first cause of action and makes the allegations thereof a part of the second cause. It is then alleged: “2. Plaintiffs respectfully allege that the judgment and decree made and entered in this cause April 10, 1940, was made and entered because of certain mistakes, inadvertences and misapprehensions as follows: “(1) Court and counsel overlooked the force and effect of the rule of law that escrow instruments during the period of their sequestration, are nullities, and are of no force and effect during sequestration. “(2) Court and counsel also overlooked the fact that the doctrine of relation back, as applied to the taking effect of escrow instruments, has no application whatever during the period of escrow, and that the initial point and moment from which the doctrine of relation back applies is the moment of the fulfillment of the unperformed condition involved in the escrow, or the happening of the contingency which vitalizes the escrow and causes it to become operative and effective.” It was further alleged that the court “as a mistake of fact” failed to apprehend that all the facts and circumstances involved proved that at the time the deeds were executed to defendants Mary Bitsko was under the domination of the defendants; that by reason of mistake and inadvertence the court overlooked the fact that the deeds attacked in the original action were testamentary in character. In the third cause of action plaintiffs allege that long prior to and during the trial in the original action the attorney for the plaintiff was in ill health, and that by reason of his weakened condition he was not able to try the case with the vigor and skill that characterized him in the fullness of health and when free from affliction, and that by reason of the illness of counsel the judgment is the result of unavoidable casualty. Plaintiffs pray that the court make an order setting aside the judgment and that a new trial of the issues involved be granted. Assuming the allegations in the first cause of action charged fraud in the procurement of the judgment, the fraud was clearly intrinsic, not extrinsic, and under the law of this state affords no ground to set aside a solemn judgment entered by the court after a full hearing upon the issues. Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; Miller v. Miller, 89 Kan. 151, 130 Pac. 681; Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306; Potts v. West, 124 Kan. 815, 262 Pac. 569; Putnam v. Putnam, 126 Kan. 479, 268 Pac. 797; Elfert v. Elfert, 132 Kan. 218, 294 Pac. 921; Rogers v. J. R. Oil and Drilling Co., 149 Kan. 807, 89 P. 2d 847. The second cause of action is predicated on the proposition that in the original trial the court overlooked the law applicable to instruments placed in escrow. If that question had been presented to this court upon an appeal from the judgment it would have received consideration. . The naked allegations afford no basis to set aside a judgment duly entered, and from which no appeál was taken. . (See cases above cited.) As a general rule, the only mistake for which equitable relief from a judgment will be granted is a mistake of fact, and not a mistake of law. (31 Am. Jur., Judgments, § 640.) In the third cause of action plaintiffs ask that the judgment be vacated and set aside on account of the illness of the attorney for the plaintiff in the original action. It is not alleged that an application for continuance was made on the ground that counsel was ill and that such application was refused; that plaintiff in the original action used diligence to secure other counsel, or that there was an abuse of discretion on the part of the court in proceeding with the trial during the illness of counsel.' Clearly the alleged cause of action was without merit. As the petition failed to state a cause of action the order and judgment of the trial court in sustaining the motion to strike certain paragraphs from plaintiffs’ first cause of action is affirmed. As the demurrer of defendants should have been sustained as to that part of the petition not stricken, .the judgment of the court in overruling defendants’ demurrer to the petition brought up on the cross appeal is reversed. 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The opinion of the court was delivered by Hoch, J.: This was an action to recover damages for personal injuries suffered in a gas explosion in a hotel room occupied by the plaintiff. The defendants were the hotel operator and the gas company which supplied gas to the hotel. The gas company demurred to the petition. The demurrer was sustained, and plaintiff appeals. The operator of the hotel is not directly involved in the appeal. The sole question is whether the petition stated a cause of action against the gas company. The petition alleged that the defendant, Ralph Johnson, was the lessee, proprietor and operator of certain premises at 528 Kansas avenue, in Topeka, Kan., commonly known as the “Oxford Hotel”; that the hotel consisted of a number of suites of rooms and a number of single rooms, all of which were served with natural or artificial gas through “gas mains and pipes under the sole and exclusive control, supervision and management of the defendant, Johnson, his servants or employees”; that these mains or pipes afforded outlets in the various rooms whereto heating and cooking appliances were connected; that these appliances were installed and connected by the defendant Johnson, his servants, agents or employees by means of connecting tubing of a type commonly known as “flexible connecting tubing” and that at all times involved in the action “said heating appliances and said connecting tubing within said single rooms were under the sole and exclusive control, supervision and management of the defendant, Ralph Johnson, his servants, agents or employees.” Further recital of the allegations as to Johnson is unnecessary. It was alleged that on the day in question large quantities of gas which had escaped and accumulated in the room occupied by the plaintiff exploded and inflicted severe burns upon him. It was alleged that the appellee, the Gas Service Company'—• “knew, or should have known, that the aforementioned flexible connecting tubing was being used as aforesaid within said premises and knew, or should have known, that said type of connecting tubing is a faulty, unsafe, and highly dangerous type of connecting tubing due to the fact that the said gas has a deteriorating effect upon said tubing that results in sudden and dangerous leakage and escape _ of said gas, but that said defendant did, nevertheless, negligently, willfully, unlawfully, and without regard for the health and safety of the occupants of said premises, supply and continue to supply artificial or natural gas to said premises.” and that it “knew or should have known that such use of said tubing was contrary to and in violation of the above stated statute of the state of Kansas and the above stated ordinance of the city of Topeka,” but that it “did, nevertheless, willfully, unlawfully and without regard for the safety and health of the occupants of said premises supply and continue to supply artificial or natural gas to said premises.” Other allegations are not material to the instant issue. There was no allegation that the “flexible connecting tubing” had deteriorated nor was it specifically alleged that the leakage resulted from deterioration or defect in the tubing or from faulty connection of the tubing with the pipe outlet. However, construing the petition most favorably to the plaintiff, we shall disregard any question that might be raised on that point and here assume that the petition sufficiently alleges that the use of the tubing was the cause of the leakage and the accumulation of gas, resulting—in some manner not set forth in the petition—in the explosion. We shall also pass over appellee’s contention that the petition is defective because no actual deterioration in the tubing was alleged. We shall here treat the petition as alleging the use by defendant Johnson of gas connections which were of an unsafe character and of a type specifically prohibited by law for use in hotels or other such public building. What then are the allegations as to the appellee? It is not alleged that “flexible connecting tubing” was used in the hotel rooms at the time the gas company turned gas into the hotel pipes; it is not alleged that at the time of the explosion nor at any other time the appellee knew that such tubing was being used by defendant’ Johnson; it is not alleged that appellee knew that there were any gas leakages in the hotel or that it had received any notice, or was in possession of facts which could be said to put it upon notice that such tubing was being used or that any leakages existed. It is not alleged that the appellee by word, act or conduct, had assumed any responsibility to inspect or supervise the gas appliances or gas connections within the hotel. Boiled down, the allegation is only that the appellee “kneio or should have known” that flexible tubing was being used by defendant Johnson, that such tubing is dangerous in character and that its use by Johnson was unlawful. Appellant’s brief is predicated largely upon the assumption that the petition alleges that the Gas Company “knew” that flexible tubing was being used. But the petition does not so allege. Throughout the petition the allegation is that the appellee “knew or should have known” of the facts or conditions of which complaint is made. Such a pleading, in the alternative or disjunctive, must be given the construction, upon demurrer, least favorable to the pleader, or, as some writers express it, “must be treated by its .weakest link.” The general rule is—to put it another way—that such a pleading is only good as against demurrer if a cause of action is stated against the opposite party under either averment. Where the pleader has no knowledge as to which of two sets of facts exists, a pleading in the alternative may be good provided liability would be stated under either set of facts. (41 Am. Jur. 317, par. 41; 49 C. J. 98.) Under the rule the best that can be said for the petition, as against the gas company, is that it alleges the company “should have known” that Johnson was using flexible tubing. (Greenfield Sav. Bank v. Abercrombie, 211 Mass. 252, 97 N. E. 897, 39 L. R. A., n. s., 172; Cornick v. Weir, 212 Ia. 715, 237 N. W. 245; Daniels v. Berry, 148 So. Car. 446, 146 S. W. 420; Dickason v. Dickason, 84 Mont. 52, 274 Pac. 145.) Obviously a wholly different situation would be presented had actual knowledge by the gas company been pleaded. Such an allegation would have constituted a fact admitted by the demurrer. How, then, are the words “should have known” to be construed? If they represent merely the pleader’s conclusion, then the demurrer, admitting only facts well pleaded, does not admit the validity of the conclusion. As against demurrer the petition can be good only if it can be said, as a matter of law, that the gas company had a duty to know, at all times, whether faulty, dangerous or unlawful appliances or methods of installation were being used by Johnson/ Tn other words, we would have to say that if Johnson at any time installed such appliances or connections, constructive knowledge that he had done so would be immediately imputed to the gas company. But that is not the law. (24 Am. Jur. 686, 687; 28 C. J. 594, 595; 29 C. J. S. 611, ¶ 57; Hoffman v. Power Co., 91 Kan. 450, 461, 138 Pac. 632.) The affirmance of such a rule would impose impossible burdens. It would mean that a public utility company which furnishes gas, electricity or other such commodity or service to a building would be charged with knowledge, at all times, of the appliances or installations used or employed by the occupants. How could it protect itself, under such a responsibility? Even though it attempted the impossible task of inspecting every room, every day, that still would not relieve it from liability, under such a rule. The occupant might change appliances or the connections or alter the installations immediately after the company had made the inspection, and yet without any knowledge of such changes, the company would be liable for Resulting injuries. Instead of supporting the proposition that under the circumstances here involved knowledge would be imputed, the authorities cited by appellant support the view that liability attaches only if the com pany has actual knowledge of defects or leakages, or of the use of dangerous appliances or installations or has undertaken the respon-' sibility of investigation or inspection or is in possession of facts which would suggest to a person of ordinary care and prudence the necessity of making investigation. For instance, appellant quotes from 24 Am. Jur. 686, as follows: “If a gas company knows, at the time it turns on the gas, or after turning on the gas, becomes aware, that there are dejects in the pipes, or if the company is in possession of facts that would suggest to a person of ordinary care and prudence that the pipes in the building are leaking or are otherwise unsafe for the transportation of gas, the company is under a duty to make such an inspection or investigation as a person of ordinary eare and prudence, similarly situated and handling such dangerous agency, would make to ascertain the safety of the pipes, before it furnishes or continues to furnish gas through them.” (Italics ours.) The same rule is stated in 25 A. L. R. 272, cited in Southern Indiana Gas Co. v. Tyner, 49 Ind. App. 475, 97 N. E. 580, and quoted in appellant’s brief, and in 12 R. C. L. p. 909, cited by appellant. Our own cases, cited by appellant, are to the same effect. For instance, appellant cites the following from Swayzee v. City of Augusta, 113 Kan. 658, 216 Pac. 265: “One who applies for gas has the duty to see that his own pipes through which the gas is to be used are in good order, and no general obligation on the part of the company can be inferred to inspect such pipes. But if the company knows at the time it turns on the gas, or after turning on the gas becomes aware that there are defects in the pipes, it then becomes its duty to make a proper inspection to ascertain the safety of the pipes before it furnishes or continues to furnish gas through them.” (Italics ours.) (p. 663.) A like rule is stated as follows in Atkinson v. Wichita Gas Co., 136 Kan. 854, 18 P. 2d 127, cited by appellant: “The handling of gas required prompt action on the part of the gas company, and it devolved upon that company to exercise reasonable care to discover the source of the leak as soon as it received notice that gas was escaping, whether the leak was in the main or service pipes. In a case where notice had been given of such a condition it has been said that ‘It is immaterial in such case that the pipe where the leak occurred was owned by the consumer.’ 28 C. J. 594.” (Italics ours.) (p. 857.) Other cases cited by appellant are to like effect. Needless to say, the rule here followed is in no way in conflict with the many cases—including our own—and which need not be reviewed, wherein a utility company is held to a high degree of accountability for the maintenance and condition of its own wires or pipes, and may be charged with knowledge of defects therein as a matter of law. (See Snook v. City of Winfield, 144 Kan. 375, 381, 61 P. 2d 101; Baker v. Kansas Power & Light Co., 127 Kan. 109, 113, 114, 272 Pac. 101; Jackson v. Kansas Gas & Electric Co., 152 Kan. 90, 95, 96, 102 P. 2d 1038.) No pipes, appliances or connections, owned, installed or inspected by appellee are here involved, and no notice of defects or possession of facts putting the company on such notice is alleged. In his reply brief appellant frankly concedes that he has made no attempt to support the proposition that appellee “should have known,” as a matter of law, of the alleged defects. He urges that the construction to be given the’ words “knew or should have known” was not argued in the trial court and that appellee’s argument in support of the demurrer was based upon wholly different grounds. Here, for the first time, appellant says, did the appellee stress the point that the words “knew or should have known” do not constitute a pleading that it “knew.” However that may be, if no cause of action was stated, the demurrer was properly sustained and it is not material on review what arguments were advanced below. (McKenzie v. New York Life Ins. Co., 153 Kan. 439, 441, 442, 112 P. 2d 86, and cases therein cited.) Ag,ain, appellant says in his reply brief that if a motion to strike the words “or should have known” had been made by appellee, those words would have been stricken. But the words were not stricken, and we cannot here exclude issues that are raised by the demurrer. Furthermore, the record discloses that appellant asked to have the journal entry sustaining the demurrer amended by inserting a statement that “the court finds that the plaintife elects to stand upon his petition.” While the amendment was not allowed, the motion indicates appellant’s position, sustained by the record, that he did, for purposes of this appeal, at least, stand upon the petition and he did not ask leave to file an amended petition. Appellant further complains of not being given adequate opportunity, in the court below, for oral argument on the demurrer, though he admits that his brief submitted below “was late, perhaps unduly late.” No purpose would be served by going into that matter. In no event could it determine the only issue here presented. For reasons stated we find that the petition stated no cause of action against the appellee and that the demurrer was properly sustained. The judgment is affirmed.	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The opinion of the court was delivered by Wedell, J.: This was an action to foreclose a real-estate mortgage. Judgment was for plaintiff, and certain defendants appeal. On June 1, 1937, W.' J. Criswell, his wife Clara Criswell, and William Swinton,. grandfather of W. J. Criswell, executed and delivered to plaintiff, the State Bank of Downs, their promissory note in the sum of $2,500, together with a real-estate mortgage on a quarter section of land in Mitchell county to secure the note. The note was signed by all three parties. The land was owned by William Swinton, and he alone signed the mortgage. W. J. Criswell had borrowed money from the plaintiff bank since 1930. On those loans the bank had always required and obtained the signature of his grandfather as additional security. The notes were renewed from time to time. The instant note represented another renewal but also included an additional loan in the sum of $600. That amount was used by the grandfather in order to take up and cancel an old note and mortgage of his own which he had executed and delivered to the First Loan & Trust Company of Beloit. That mortgage was paid off in order to clear the title on the land before the instant mortgage thereon was accepted by the plaintiff bank. William Swinton died in December, 1939, when about 80 years of age. Riley Swinton, one of his sons, was appointed administrator of his estate. The administrator, W. J. Criswell, and his wife and all heirs at law of William Swinton, deceased, were made parties defendant in the foreclosure action. W. J. Criswell and his wife, two signers of the note, and all other parties defendant except Riley Swinton, an individual, and Riley Swinton, administrator, defaulted. The two lastonamed persons filed a joint answer, and plaintiff filed its reply thereto. A personal judgment was rendered against W. J. Criswell and his wife at the beginning of the foreclosure action for the amount of the note and interest. It appears the time within which to file a demand against decedent’s estate in the probate court had expired, and no personal judgment was rendered against the administrator for the amount due on the mortgage note. The court found the mortgage was given to secure the note.' The mortgage was decreed to be a first, prior and paramount lien on the land. A decree of foreclosure was rendered and the land was ordered sold to satisfy the lien. Nelson Swinton, and .Riley Swinton, heirs, and Riley Swinton, administrator, have appealed. The first complaint is that a request for a trial by jury was denied. The record discloses the trial court examined the pleadings before ruling on that request. Appellants do not seriously contend that the answer, in the manner verified, put in issue the execution of the note and mortgage, as required by G. S. 1935, 60-729, and indeed it did not. The execution, of the note and mortgage was admitted by. the pleadings. Their execution was also conceded by defendants’ evidence and we need give that subject no further consideration. The only question which, thereafter, remained for adjudication was whether the mortgage should be foreclosed. That presented purely an equitable issue which the court was authorized to try without a jury. (G. S. 1935, 60-2903; Morgan v. Field, 35 Kan. 162, 10 Pac. 448; Union State Bank v. Chapman, 124 Kan. 315, 317, 259 Pac. 681; Larrick v. Jacobson, 139 Kan. 522, 529, 32 P. 2d 204; Fidelity Nat. Bank & T. Co. v. Cloninger, 142 Kan. 558, 559, 51 P. 2d 35.) The constitutional guaranty of the 'right of a trial by jury does not apply to suits in equity. (19 Am. Jur., Equity, § 398.) There is no doubt that a court of chancery, by reason of its nature and constitution, has ample power to decide every question of law or fact that comes before it in any suit over which it has jurisdiction. (19 Am. Jur., Equity, § 398.) True, it has the power, if it desires, to order any issue, or issues, to be tried by á jury, but the findings of the jury would be only advisory in character and not conclusive or binding upon the court. In the final analysis the court must assume the duty and responsibility of determining for itself every issue of fact in an equity case. (Cooper v. Cooper, 147 Kan. 256, 258, 76 P. 2d 867.) Appellants maintain the court erred in sustaining appellee’s demurrer to their evidence. They argue that they pleaded and proved William Swinton was mentally incompetent to understand the nature of his acts involved in the execution of the note and mortgage. There was no evidence he had been declared insane or incompetent to transact his own business affairs in any particular. Indeed, it appears he transacted all of his own business affairs, including important affairs with some of appellants’ own witnesses subsequent to the date of the execution of the note and mortgage in question. It is ti’ue there was evidence which established, or tended to establish, appellants’ contention with respect to age and growing infirmity. There was also evidence adduced by both appellee and appellants which proved, or tended to prove, he did understand the nature and significance of his acts at that particular time and also prior and subsequent thereto. The record simply presented another issue of fact which a court of chancery, having assumed jurisdiction, possessed power to decide. It was not the kind of fact which entitled appellants to a trial by jury as a matter of right. In civil actions, under our code, a jury can be demanded as a matter of right, only in actions for the recovery of money or of specific real or personal property. (G. S. 1935, 60-2903; Fisher v. Rakestraw et al., 117 Kan. 441, 445, 232 Pac. 605, and cases therein cited.) See, also, Union State Bank v. Chapman, Larrick v. Jacobson, Fidelity Nat. Bank & T. Co. v. Cloninger, all supra, and Andregg v. Sparrow, 152 Kan. 744, 748, 107 P. 2d 739; 37 Am. Jur., Mortgages, § 568, and 2 Wiltsie on Mortgage Foreclosure, 5th ed., § 636. Assuming, however, the evidence, as contended by appellants, established the incapacity of William Swinton to fully understand the nature and character of his acts in executing the note and mortgage, the demurrer to appellant’s evidence was nevertheless properly sustained for a number of reasons. It will be sufficient to note one of them. As heretofore stated, the only matter remaining before the court for adjudication, namely, the foreclosure of the mortgage, was purely a matter of equitable cognizance. In ordér for appellants to have prevented the foreclosure of the mortgage it was their duty to offer to do equity in the premises. This they did not do in any particular. All moneys which were- obtained from the bank by virtue of the various notes—and there were about ten previous notes—were admittedly obtained upon the credit of William Swinton. Furthermore, as previously shown, William Swinton also benefited personally by the execution of the instant note and mortgage. Appellants did not offer restitution of the money, or any part of the money, with which the bank had parted by reason of the credit and signature of William Swinton on the various notes and the instant mortgage. Subsequent to the execution of the instant note and mortgage the bank was also induced to execute a waiver of its prior mortgage' lien, under certain tenns, in order to enable William Swinton to execute an oil and gas lease on the mortgaged land. The lease is no longer effective and that subject is of no present concern insofar as the bank’s prior lien is concerned. Appellants, in effect, sought to have the mortgage transaction rescinded and canceled in order to defeat the enforcement of the mortgagee lien. Manifestly, they could not do that if they were actually entitled to rescission without offering to make restitution or to sufficiently excuse themselves from that duty. Without such a showing their evidence was demurrable. (Erdley v. Dixon, 127 Kan. 142, 272 Pac. 154, and numerous cases therein cited.) See, also, Gribben, Guardian, v. Maxwell, 34 Kan. 8, 7 Pac. 584; Leavitt, Guardian, v. Files, 38 Kan. 26, 15 Pac. 891; Myers v. Knabe, 51 Kan. 720, 33 Pac. 602; Sluder v. National Americans, 101 Kan. 320, 166 Pac. 482; Annot. 46 A. L. R. 417, 419, 422. In passing we may pause to note that since a demurrer was properly sustained to appellants’ evidence a jury would have had no function to perform, even in an advisory capacity, had a trial by jury been granted. Appellants urge there was .no consideration for the note and mortgage. Obviously, in view of facts previously stated, that contention is not good. Appellants argue the mortgage could not be foreclosed without a personal judgment having been rendered against the personal representative of the decedent. They also contend no judgment in rem was rendered. Clearly they are in error with respect to the last contention. The judgment was expressly made a first, prior and paramount lien on the land to the extent of the indebtedness represented by the note and secured by the mortgage. ' It was not necessary that a personal judgment should also have been rendered on the note against the personal representative of the decedent in order to enforce the security. A mortgage may be given to secure the debt of another. The rule is clearly stated in 41 C. J., as follows: . “As has been noted, the consideration need not move to the mortgagor. Hence, the debt- may be the debt of another and the consideration, for example, may consist in a loan to a third person, or a satisfaction of a debt due the mortgagee from a third person, or in the release of' a mortgage of a third person, or forbearance or extension to a third person debtor.” (p. 387, § 205.) In 36 Am. Jur., Mortgages, § 61, it is said: “Mortgages may be executed to secure the obligations of third persons. An undertaking by the grantor to be personally responsible for the payment of the debt of the third person is not essential to the validity of the mortgage. . . .” (p. 719.) (Emphasis supplied.) In the instant case the debt was due and the mortgage was subject to foreclosure. Decedent’s agreement, the real-estate mortgage, that his land could be subjected to the payment of the debt was enforceable. (Jackson v. Longwell, 63 Kan. 93, 96, 64 Pac. 991; Diehl v. Davis, 75 Kan. 38, 41, 88 Pac. 532; Grieve v. Huber, 41 Wyo. 168, 283 Pac. 1105.) The amount of the mortgage lien was fixed in the decree of foreclosure. Any party entitled to redeem was definitely advised as to the amount required for that purpose. In view of what already has been said we do not deem it necessary to treat other alleged errors. We hake carefully examined all authorities cited by appellants in support of their respective contentions. They do not require and would not justify a reversal. The decree was equitable and just and is affirmed. Hoch, J., not participating.	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The opinion of the court was delivered by Harvey, J.: This was an action to recover rents. The appeal is from an order overruling plaintiff’s demurrer to defendant’s answer. The pleadings may be summarized as follows: Plaintiff alleged that in February, 1939, he was the owner of certain described real property occupied by his tenant, Pansy Burge, at a stipulated monthly rental; that the defendant Norwood, claiming to be entitled to the rents, approached Burge and demanded payment of the rents, and upon Burge’s refusal demanded that no more rents be paid to plaintiff. Uncertain which one to pay, Burge withheld payment until a sum stated had accumulated. Plaintiff prayed judgment against Burge for that sum and that Norwood be adjudged to have no interest in the rents. The plaintiff and the defendants, Burge and Norwood, entered into a written stipulation by which it was agreed that Burge owed $330 for rent on the premises and upon the payment of that sum into court Burge would be relieved of further liability. This was done. The defendant Norwood filed an answer in which he admitted that on February 1, 1939, plaintiff was the owner of the real property described in his petition and that the defendant Burge was the tenant in possession, but alleged such ownership and possession were subject to the balance due (amount unknown) upon a first mortgage executed September 20, 1922,- by plaintiff and his wife to the Aetna Building and Loan Association to secure their note for $2,000, and also subject to a second mortgage, executed January 1, 1937, by plaintiff and his wife to this defendant in the sum of $1,500; that on November 17,1938, in an action against plaintiff and others to foreclose the second mortgage this defendant recovered a judgment against plaintiff and his wife for $1,697 and a decree foreclosing the second mortgage; that on January 9, 1939, at a duly ad vertised sheriff’s sale of the property under that decree, this defendant purchased the property for $1,879.94, the same being the full amount of his judgment against plaintiff and wife, plus interest 'thereon, costs and taxes. It was further alleged that the first mortgagee, the Aetna Building and Loan Association, was not a party to that foreclosure proceeding nor interested therein in any way. Defendant further alleged that on November 8,1932, plaintiff and his wife, for a valuable consideration and as additional security for its mortgage, executed to the Aetna Building and Loan Association their written ¡assignment of the rents of the property, a copy, of which was attached, marked exhibit A, and made a part of the answer, which rent assignment never has been canceled or revoked; that payments on the first mortgage became delinquent in July, 1939, and the mortgage subject to foreclosure; that to prevent the foreclosure of the first mortgage this defendant was compelled to and did purchase the same and pay the balance due thereon, $382.25, and the mortgagee duly assigned the mortgage to this defendant, a copy of which assignment was attached, marked exhibit B, and made a part of the answer; that said mortgage was not merged into defendant’s right, title and interest in the property; that at the same time and for the same consideration the Aetna Building and Loan Association assigned to this defendant all its right, title and interest in the aforesaid rent assignment, a copy of which assignment, marked exhibit C, was attached to the answer and made a part thereof. In his answer defendant admitted he had demanded payment of the rents from the tenant Burge pursuant to the rent assignment, and payment had been refused; alleged plaintiff is insolvent, and that the value of the property mortgaged does not exceed $1,500, and denied all other allegations of the petition, and prayed judgment for $330 paid by Burge into court. Plaintiff demurred to this answer on the grounds it does not state facts sufficient' to constitute a defense, or to constitute a cause of action in favor of defendant, and shows on its face plaintiff is entitled to the relief prayed for in his petition. While not specifically alleged in the answer, counsel for the parties in this court agree that the sheriff’s sale under the decree foreclosing the second mortgage was duly confirmed and the period of redemption fixed at eighteen months, and that all of the rents involved in this controversy are rents which accrued during this eighteen months’ period. Exhibit A, attached to the answer, is entitled “Rent Assignment” and provides: “That Frank O. Mace” and wife “do hereby appoint The Aetna Building and Loan Association, ... or its duly appointed agent, attorney for the undersigned, to rent said premises, and to demand, receive and collect from the tenants ... all rentals now due or which shall become due . . . and to apply such rentals toward repairs and upkeep of the property, and dues, interest, taxes, etc., that may be due ... by reason of a first mortgage. “In case of default in the payment of said rents,” the mortgagee, “thru its duly appointed agent is hereby authorized to take possession of the premises . . . and prosecute such legal proceedings as may be necessary for the collection of said rents. This power is hereby created to terminate only when the first mortgage . . . has been fully paid. “This rent assignment is given ... in consideration of the fact that the said mortgage ... is in default and subject to foreclosure, and the mortgagee “has agreed ... to withhold foreclosure of said mortgage upon the performance of the obligations under said substitution agreement.” Exhibit B is an assignment of the first mortgage by the Aetna Building and Loan Association to the defendant Norwood in consideration of $382.85. Exhibit C is entitled “Assignment of Rent Assignment” and recites: “For value received, the Aetna Building and Loan Association, hereby sell, assign, transfer, set over and convey unto” defendant “all its right, title and interest in and to the within assignment of rents,” identified as “exhibit A.” Appellant argues that by exhibit A the mortgagors did nothing more than appoint the Aetna Building and Loan Association, or its agent, attorney for the mortgagors to collect the rents and apply them as directed; that in collecting such rents and applying them as directed it acted simply as an attorney in fact, or an agent (see 2 C. J. S. 1037) of the mortgagors, and that it had no right or authority to assign the rents it had under exhibit A to the defendant Norwood, or to anyone else. The point is well taken. Where an agency involves duties of personal trust and confidence the agent may not assign his authority to act as agent without the consent of his principal. (2 C. J. B. 1068; 5 C. J. 880.) It is true the Aetna Building and Loan Association could appoint someone as its agent to act as attorney for the mortgagors in collecting and applying the rents, and it might designate different persons from time to time as its agent for that purpose, since the only way a corporation can act is through its agents or some one representing it. But the defendant Norwood was not appointed by the mortgagee as its agent to act as attorney for the mortgagors. Under exhibit C the mortgagee attempted to assign its right to appoint someone as attorney for the mortgagors to collect and apply the rents. We think it had no authority to do this. Appellee quotes from exhibit A: “This power is hereby 'created to terminate only when the first mortgage . . . has been fully paid.” The power referred to in that paragraph is for the mortgagee to take possession of the premises if the tenant defaulted in the payments, and to prosecute legal proceedings to collect the rents. No attempt was made to exercise that power. The last paragraph of exhibit A recites that the 'instrument was given in consideration of the fact that the mortgage was in default and subject to foreclosure, and by it the mortgagee agreed “to withhold foreclosure” upon the performance of the provisions of the instrument. The instrument gave the mortgagee two remedies, if its terms were not complied with: (1) To take possession and to sue the tenant to collect rents, which had not been done, and (2) to cease to withhold foreclosure, or, in other words, to start foreclosure, which has not been done. Had the Aetna Building and Loan Association attempted to foreclose its mortgage when it was in default and subject to foreclosure in July, 1939, exhibit A would not have authorized it to collect rents from the building during the period of redemption from the judicial sale had under such foreclosure. (Capitol B. & L. Ass’n v. Ross, 134 Kan. 441, 7 P. 2d 86.) Appellant further contends that under the statute (G. S. 1935, 17-1011) the Aetna Building and Loan Association was not authorized in July, 1939, to assign its mortgage to defendant Norwood, for the reason he was not then a junior lienholder. He was at that time the holder of, or entitled to have had issued to him, a certificate of purchase under the sheriff’s sale of January 9, 1939, and its confirmation. He was therefore an equitable owner of the real estate, subject to the first mortgage, as distinct from being a second lien-holder. (See Union Central Life Ins. Co. v. Reser, 134 Kan. 876, 880, 8 P. 2d 366, and cases there cited.) Appellant argues that to permit defendant to recover in this case would be to violate the spirit of our mortgage redemption law and the purpose of the legislature in enacting it. We think the point is well taken. The redemption law was designed to protect the debtor by permitting him to redeem at the price at which the property sold. (Fraser v. Seeley, 71 Kan. 169, 172, 79 Pac. 1081.) Any agreement written into a mortgage which attempts to bar the right of the mortgagor to redeem is contrary to the purpose of the act and is invalid. While the- legislature did not specifically legislate against the plan used by defendant to get the rents of the property during the period of redemption fixed upon the foreclosure of his mortgage, we think it is contrary to the fundamental purpose and intent of the statute. The result is the judgment of the court below must be reversed with directions to sustain the demurrer to the answer. It is so ordered. Hoch, J., not participating.	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The opinion of the court was delivered by Harvey, J.: This is a sequel to a case previously decided by this court (Brothers v. Adams, 152 Kan. 675, 107 P. 2d 757). We refer to the opinion in that case for a statement of the preliminary facts. Following our decision in that case Otto A. Adams resigned as executor, filed his final account, and asked for an allowance for his services, expenses and attorneys’ fees. Lucy Brothers, administratrix of the estate of Effie Eyler Brothers, a beneficiary of the estate, opposed the allowances. The probate court accepted the resignation, approved the account and made allowances for the items claimed. Upon an appeal to the district court from the allowances there was a trial de novo by the court, with an advisory jury. The issues were whether Otto A. Adams, while executor, had acted in good faith, and if so, what were reasonable sums to be allowed to him as executor, for expenses and for fees for his attorneys. Answering special questions, the jury found Otto A. Adams had acted in good faith, also found $200 to be a fair and reasonable compensation for him as such executor, $175 for his actual and necessary expenses, $200 for an attorney fee for one attorney and $75 for another, making total allowances of $650. These findings were approved by the trial court. Lucy Brothers, as administratrix, moved to set aside each of the findings, also moved for a new trial. These motions were overruled, and she has appealed. In this court the principal argument on behalf of appellant is in opposition to the finding of the jury and the trial court that Otto A. Adams had acted in good faith. We think the most that can be said for appellant on that point is that there was conflict in the evidence, which was voluminous. We think we are not called upon to set this evidence out at length. We have carefully examined all of it embodied in the abstracts and are confident we are unable to say there was not substantial, competent evidence to support the finding of th,e jury and the court on that question. Appellant also complains of the amount allowed on each of the items. The only one concerning which there could be any question was whether it was reasonably necessary to incur the expenses for which an allowance was made. The jury and the trial court were in much better position to pass on that than we are, and we find no reason to set it aside. There is nothing about the amount of the allowance for this item, or of the amounts of the other allowances, concerning which appellant can complain. In the trial court Otto A. Adams specifically objected to the allowances made by the jury for attorneys’ fees, contended they were less than any sum testified to by any witness, and moved the court to increase those allowances. The trial court denied the motion and approved the allowances found to be reasonable by the jury. From this ruling Adams appealed. . In this court his counsel in oral argument pointed to the fact that the amount of the attorneys’ fees fixed by the advisory jury and approved by the trial court is less than the sum fixed by any of the expert witnesses who were called and testified on that question, and in their brief submit the matter on the record, except to say that they believe every lawyer familiar with the facts shown by the abstract is bound to recognize the compensation fixed by the advisory jury is not fair and just compensation for the services rendered. The trial court really determined this fee, since the findings of the advisory jury were questioned by both parties to the litigation. It is well settled that neither the jury nor the court is bound by the testimony of expert witnesses as to the amount of a reasonable fee under the facts shown. (Epp v. Hinton, 102 Kan. 435, 170 Pac, 987, and the many cases collected in Shouse v. Consolidated Flour Mills Co., 128 Kan. 174, at page 178, 277 Pac. 54.) In 5 Am. Jur. 377 it is said: “The opinion evidence of expert witnesses, as to the value of an attorney’s services, is not conclusive or binding either on the court or on the jury.” The general rule is well stated in 7 C. J. S. 1093, as follows: “The determination of a reasonable attorney’s fee for services rendered, in case of a controversy in regard thereto, is largely within the discretionary power of the court, and it may be fixed either with or without the aid of expert testimony as to value.” In this case, while the opinion of the expert witnesses as to the value of the services would have justified a larger sum for attorneys’ fees than was allowed, and apart from the expert evidence the court might have allowed more upon the record as a whole, we cannot say that the trial court abused its discretion in the allowances made. The judgment of the trial court is affirmed both on the appeal and on the cross-appeal. Hoch, J., not participating.	[ 112, 108, -20, -99, 26, 96, 58, 26, 81, -31, 39, 83, 105, -37, 16, 111, 114, 61, 81, 107, -57, -77, 71, 97, -34, -13, -79, -43, -79, -4, -27, 94, 77, 32, 74, -107, 102, -62, -59, 20, -114, 12, -88, 69, -7, -62, 52, 45, 55, 75, 49, -98, -5, 40, 29, -46, 76, 46, -37, -67, 16, -80, -86, -115, 95, 22, -112, 7, -40, -25, 72, 42, 0, 49, -118, -24, 115, -74, -122, 84, 107, -71, 12, 98, 99, 49, -115, -89, -4, -104, 6, -73, -99, -89, -109, 89, -61, 69, -66, -99, 113, 16, 7, -2, -4, -107, 31, 108, 9, -117, -42, -111, -65, 116, -100, -118, -21, -123, 50, 113, -120, -94, 92, -41, 120, -101, -114, -80 ]
The opinion of the court was delivered by Allen, J.: Plaintiff brought this action to recover as the beneficiary under a certificate issued to her deceased husband under a group life insurance policy. Plaintiff filed a motion for judgment on the pleadings and opening statements of counsel. The motion was sustained and judgment entered for plaintiff. Defendant appealed. On February 20, 1926, the defendant issued a group policy insuring the lives of certain employees of Armour and Company. Frank James was one of the employees whose life was insured, and as evidence of that fact a certificate was issued to him. He died March 4,1932, and at that time was employed by Armour and Company. His widow, beneficiary under the certificate, made claim for the proceeds. Payment was refused on the ground that on October 20, 1931, the employment of James, the insured with Armour and Company, was terminated, and that by the terms of the insurance contract the coverage ceased, and that he was not thereafter rer insured. The action followed. The policy and the certificate issued plaintiff’s husband were attached to the pleadings as exhibits. The policy provided: “The company hereby promises to> pay to the beneficiary, as designated by any such employee, the amount for which such employee is insured in accordance with the formula. . . . FORMULA “All employees of the employer who are not included in the pension fund group, who are actively at work and who completed six months of continuous service shall be eligible to apply for insurance under this policy. “All new employees of the employer who are not included in the pension fund group, and who are actively at work shall be eligible to apply for this insurance upon the completion of six months of continuous service. “The amount of insurance, as to each employee insured hereunder, shall be Male employees-$1,000. “2: Register.—The employer shall keep a register (in card index form), which shall show at all times the names of all employees ever insured hereunder and the amount of insurance in force or previously discontinued on each of such employees, together with the date when any insurance became effective or was discontinued or of any increase or decrease thereof. The employer agrees to allow the company to inspect and audit such register at any time. “6. Insurance to be Discontinued.—-(a) The insurance on any employee insured hereunder who shall have ceased to be in the employ of the employer, shall be discontinued as of the pay day (midnight) next following the date such employee left the employ of the employer. Layoff or leave of absence of two (2) months or less shall not be considered, and retirement on pension shall not be considered, a termination of employment within the meaning of this policy unless notification to the contrary shall have been given by the employer to the company within thirty-one (31) days after the date such layoff, leave of absence or retirement shall have commenced. “(b) The insurance on any employee insured hereunder, who shall have notified the employer, in writing, that his insurance under this policy is to be discontinued, shall cease as of the pay day (midnight) next following the date such notice of discontinuance is received by the employer. “7. Insurance on New Entrants.—(a) Employees not insured on the date of issue of this policy must make written application for insurance hereunder, to the company, on forms furnished by the company, on or before the thirty-first day next following the date when they became eligible under the formula. The insurance on any such employee shall become effective on the pay day (midnight) next following the date of eligibility or next following the date of such written application—whichever is later. “(b) Employees making written application after such thirty-first day and employees reapplying after terminating their insurance for' any reason other than termination of employment, must furnish evidence of insurability satisfactory to the company before they may be insured hereunder. Any such insurance shall become effective on the pay day (midnight) next following the date of the determination by the company of the sufficiency of such evidence of insurability. “10. Certificate of Insurance.—The company will issue to the employer, for delivery to each employee whose life is insured hereunder, an individual certificate setting forth a statement as to the insurance- protection to which such employee is entitled, the beneficiary to whom payable, together with a provision to the effect that in case of the termination of the employment, for any reason whatsoever, such employee shall be entitled, to have issued to him by the company, without evidence of insurability, and upon application made to the company within thirty-one days after such termination and upon the payment of the premium applicable to the class of risk to which he belongs and to the form and amount of the policy at his then-attained age (nearest birthday), a policy of life insurance in any onq of the forms customarily issued by the company (except term insurance) in an amount equal to the amount of his protection under this policy at the time of such termination. Upon termination of employment in the manner referred to in Section 6 (a) hereof, the insurance on any discontinued employee under this policy automatically terminates, and the company shall be released from any further liability of any kind on account of such person unless an individual policy is issued in accordance with the above provision.” Plaintiff alleged in her petition that on February 20, 1926, the defendant issued to her husband, Frank James, its certificate of insurance on the life of Frank James in the sum of $1,000 payable to plaintiff as beneficiary upon the death of the husband while an employee of Armour and Company and while the group policy No. 2893G was in force. It was alleged Frank James died March 4, 1932, while he was an employee of Armour and Company and while the group policy was in force. It was also stated that Frank James during his lifetime, and plaintiff since her husband's death, had performed all the conditions of the certificate of insurance and of the group policy, but that defendant refused to pay the amount of the insurance. The defendant’s answer contained a general denial of the allegations of the petition except as later admitted in the answer. Defendant admitted that the group policy and certificate were issued as alleged in the petition and that the group policy was in force at the time of -Frank James’ death. The defendant set out its interpretation of those provisions of the policy which have been quoted above, and then continued: “6. Defendant states that said Frank James left the employ of Armour and Company on the 20th day of October, 1931, and that by the terms of said certificate attached to plaintiff’s petition as ‘exhibit A,’ and the provisions of said group policy attached hereto as ‘exhibit A,’ such insurance on said Frank James was discontinued and no longer in force or effect from and after midnight of the following Friday, or October 23, 1931. “7. Defendant states that said Frank James was afterwards, and on November 3, 1931, again employed by Armour and Company at its Kansas City, Kansas, plant, and remained in such employment until December 31, 1931. That he again entered such employment on February 6, 1932, and remained in such employment until February 11, 1932. That he again entered such employment on February 27, 1932. “8. Defendant states that under the employments of Frank James with Armour and Company, subsequent to October 20, 1931, his life was not insured under such group policy, as such policy expressly provided that this defendant insured the lives of those employees of Armour and Company who were eligible for insurance under the formula therein contained, and such formula made new employees of the company eligible to apply for such insurance only upon the completion of six months’ continuous service. Defendant states that the insurance on the life of Frank James under the aforesaid group policy and certificate, was discontinued on October 23, 1931, by reason of the termination of the employment of Frank James with Armour and Company on October 20, 1931, and insurance on the said Frank James was thus automatically terminated and this defendant released from any further liability of any kind on account thereof. That said Frank James, never having thereafter completed six months’ continuous service with said Armour and Company, never became eligible for, nor could he be insured under such group policy.” Plaintiff filed a reply which was in effect a denial of the allegations of the answer insofar as the answer differed from the petition. A motion for judgment on the pleadings is in the nature of a demurrer. (Smith v. Lundy, 103 Kan. 207, 173 Pac. 275.) It is in substance both a demurrer and a motion—a demurrer for the reason it attacks the sufficiency of the pleadings, and a motion for the reason it is an application for an order for judgment. (Fielding v. Alkire, 124 Kan. 592, 261 Pac. 597; 49 C. J. 668.) Like a demurrer, the motion admits the truth of all matters well pleaded. Where a pleading sets out or refers to a written instrument such as a contract, and alleges such contract has a certain sense or effect, a demurrer admits the existence of the writing, but does not admit it has the meaning or legal effect ascribed to it by the pleader. (Rettiger v. Dannelly, 91 Kan. 61, 136 Pac. 942; G. S. Johnson Co. v. N. Saure Milling Co., 148 Kan. 861, 84 P. 2d 934; Pennington v. Kross, 154 Kan. 666, 668, 121 P. 2d 273.) A plaintiff is entitled to judgment on the pleadings where his cause of action is admitted and no facts are alleged in the answer which would defeat the admissions. (Nation v. Clay, 125 Kan. 735, 266 Pac. 45; Fenley v. Garvin, 110 Kan. 185, 203 Pac. 301.) Where the answer contains a general denial, a motion for judgment on the pleadings may be sustained if the general denial is overthrown by other statements and admissions in the answer. (Dickinson County Hospital Co. v. Kessinger, 128 Kan. 576, 279 Pac. 7.) Under section 6 (a) of the policy, insurance on any employee will be discontinued when the employee (1) shall have ceased to be in the employ of the employer, and (2) layoff or leave of absence of two months or less shall not be considered a termination of employment unless the employer shall notify the insurance company to the contrary. Under 6 (b) the insurance on any employee may be discontinued if the employee shall in writing notify the employer that he desires the insurance discontinued.' In paragraph 6 of defendant’s answer, it was alleged: “Defendant states that said Frank James left the employ of Armour and Company on the 20th day of October, 1931. . . .” This claus'e seems to be the only direct allegation which attempts to state any change in the relationship between the employer and the employee on the date mentioned. To say that James “left the employ” of Armour and Company at the time stated might mean that such employee took a layoff or a leave of absence. By the express language of 6 (a) of the policy, a layoff or leave of absence of two months or less, in the absence of notice in writing by the employer to the company within thirty-one days after the date of such layoff or leave of absence, would not terminate the employment, and consequently would not discontinue the insurance. In plaintiff’s petition it was alleged that Frank James died while he was an employee of Armour and Company and while the group policy was in force and that all the conditions of the group policy and the certificate had been performed. To raise an issue of fact as to whether the insurance on the life of James was in force at the time of his death it was necessary for the defendant to plead facts showing a termination of the employment of James as specified in 6 (a) of the policy, which would discontinue the insurance, or that the insurance was discontinued by written notice from the employee to the employer as specified in 6 (b). The equivocal allegation that the employee “had left the employ” of Armour and Company falls far short of a denial of the allegations in the petition. The motion for judgment on the pleadings does not admit the meaning or legal effect ascribed to the provisions of the policy of insurance as set forth in the answer. In the opening statement of counsel for defendant it was stated that Armour and Company did send a notice to the defendant insurance company that the employment of J ames with Armour’s had terminated. This notice was dated November 28, 1931. Paragraph 7 of the answer states James was again employed on November 3, 1931, and remained in such employment until December 31, 1931. Not only was James employed on November 28, 1931, when the notice was given, but the notice was not within thirty-one days from the date he stopped work as alleged in the answer. We are not impressed with the theory that/a notice on that date operated to discontinue the insurance. For the reasons stated, we think the order and judgment of the trial court must be affirmed. It is so ordered.	[ -80, 124, -36, -35, -120, -32, -70, -38, 82, -128, 37, 83, -3, -57, 52, 103, -6, 109, 81, 98, -11, -77, 23, -118, -34, 115, -15, -59, 49, 95, -18, -4, 76, 48, 42, -44, -26, -126, -63, 16, -124, 4, -71, -27, -39, 80, 48, 123, -48, 95, 81, -98, -13, 34, 21, -53, 41, 40, 75, -87, -64, -16, -117, -123, -17, 27, -77, 7, -102, 103, -40, 14, 24, 49, -120, -24, 50, -90, -42, 52, 33, -103, 0, 98, 103, 16, 49, -19, -100, -104, 63, -62, -113, -124, -78, 56, -101, 6, -108, -99, 126, 4, -121, 124, -44, -35, 29, 36, 3, -113, -42, -79, -21, 110, -99, -117, -1, 1, -94, 113, -54, -96, 92, 71, 126, 19, -105, -114 ]
The opinion of the court was delivered by Smith, J.: This is a claim for workmen’s compensation. The commissioner of workmen’s compensation made an award 'to the claimant. On appeal this award was approved by the trial court. The respondent owned and operated a gasoline filling station near Atchison, Kan. Robert L. Repstine, husband of claimant, was manager of it. He lived with his family about a mile and a half from the place where the station was located. This filling station was the respondent’s only business in Atchison. All of this equipment and property were at that station. The deceased as manager of the station was responsible for the money taken in at the station. There is no dispute as to this. It was customary for the deceased to take the money of the station home with him and bring it back when he came to work the next day. On the morning of September 29,1940, he was driving from his home to the station by the most direct route. That was on Sunday morning. He had taken, the proceeds of the Saturday’s business, amounting to $198, home with him to keep it safely and was taking it back to the station at that time. On his way from his home to the station the car he was driving collided with a truck and he received injuries from which he died. There was no safe provided by the company at the station for the safekeeping of the proceeds of the business and there was no other means provided for the deceased to take care of this money other than by taking it home and keeping it with him. It was his duty to protect this money at all times. There is no dispute as to the facts in the case. The commissioner of workmen’s compensation heard the evidence and found that the accident happened “in the course of” and arose “out of” the employment of deceased and awarded compensation to the claimant. The district court sustained this award. Hence this appeal. The sole question is whether the accident arose “out of” and happened “in the course of” the employment. The theory of the claimant is that since the deceased was responsible for the money taken in at the station, and no means was provided by the respondent whereby the money might be safely kept at the station or any other place than in the custody of the deceased, and since the deceased had $198 of the company’s money in his custody and was taking it to his place of business, and he had charge of it since he closed the station the preceding night, he was working at his employment at the time his death occurred. At the outset claimant is met with the provisions of G. S. 1935, 44-508 -(h), which provides as follows: “The words ‘arising out of and in the course of employment’ as used in this act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.” Plaintiff meets the above provisions with the argument that deceased, while on his way from his home to his work, was taking care of the company’s money and hence the injury occurred “in the course of” his employment, and that for the same reason the accident arose “out of” the employment because he could not get to his work without traveling along the highway and while he was traveling along the highway he was taking care of the company’s money. It should be stated here that it is not contended that the proximate cause of this accident was the employer’s negligence. Where all of the facts are admitted the question of whether admitted facts justify the conclusion that the injury arose “out of” and occurred “in the course of” the employments a question of law. (See Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542; also Holloway v. Consolidated Gas, Oil & Mfg. Co., 152 Kan. 129, 102 P. 2d 987.) Passing for a moment the question of whether this accident happened “in the course of” the employment we shall consider whether it arose “out of” the employment. This court has held that in order for the claimant to be entitled to compensation the accident must have arisen “out of” the employment and happened “in the course of” the employment. It arises “out of” the employment when it is clear upon consideration of all the circumstances that there was a causal connection between the conditions under which work was required to be performed and the resulting injury. An injury which does not appear to have its origin in a risk connected with the employment, and cannot be shown to have flowed from the source as a natural consequence, does not arise “out .of” the employment. (See Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863; Haas v. Light & Power Co., 109 Kan. 197, 198 Pac. 174; Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19; Gamble v. Board of Public Utilities, 137 Kan. 227, 19 P. 2d 227; Finch v. Galloway, 139 Kan. 173, 29 P. 2d 1091; Rush v. Empire Oil & Refining Co., supra; Schooley v. Swanson, 147 Kan. 758, 78 P. 2d 858; Hudson v. Salina Country Club, 148 Kan. 697, 84 P. 2d 854; and Holloway v. Consolidated Gas, Oil & Mfg. Co., supra.) The fact that the employee happened to be doing something incidental to or in connection with his work does not mean that the accident which happened to him arose “out of” his employment. In Covert v. John Morrell & Co., 138 Kan. 592, 27 P. 2d 553, where a traveling salesman was calling on his customers which necessitated his driving along the highway someone deliberately threw a chunk of mud breaking his windshield and injuring him. This court said: "The compensation act requires that- the injury ‘arise out of and in the course of’ the employment. Both elements must be present to justify a recovery. ‘Arising out of’ means that the accident came out of the employment and makes it- a condition precedent to the right to recover compensation, that the occurrence shall have resulted from the risk reasonably incident to the employment and that there be a causal connection. While not ordinarily essential that it be peculiar to the particular employment in which the workman was engaged at the time of the injury, it must arise out of a risk in some way peculiar to that in which he was engaged and not out of a hazard to which he would be equally exposed outside of the business.” (p. 593.) In Rush v. Empire Oil & Refining Co., supra, the workman was. engaged in working with a team and wagon on the streets of a town which consisted of many houses owned by his employer. While thus engaged a storm came up and he took refuge in a garage. The storm blew the garage down and injured him. This court held that the injury did not arise “out of” his employment. The court said: “The purpose of the workmen’s compensation act is to burden the industry with the economic loss to a workman or his dependents resulting from accidental injury sustained by the workman, not only in the course of his employment, but which was caused by, or arose, out of, his employment. It never was the purpose of the compensation act that the employer should in all respects be an insurer of the employee, but he is such insurer only for those accidental injuries caused or produced in some way by the employment. The statute uses a rather broad term, in the expression “out of” the employment, thereby indicating that the statute should have a liberal interpretation to accomplish its purpose (Roberts v. City of Ottawa, 101 Kan. 228, 165 Pac. 869; Palmer v. Fincke, 122 Kan. 825, 253 Pac. 583), but this does not mean that the act should be construed to include injuries which clearly did not arise out of the employment.” (p. 200.) See, also, Holloway v. Consolidated Gas, Oil & Mfg. Co., supra. In that case deceased lived on an oil and gas leasehold with his family. One morning in lighting the fire in the heating stove his clothing became ignited and he was so severely burned he died. This court reviewed the authorities and said: “The accident must arise ‘out of’ and it must happen ‘in the course of’ the employment in order for the act to apply. Each of these terms has a distinct meaning. ‘In the course of’ employment simply means while the employment was going on. (See Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863.) The words point to the time, place and circumstances under which the accident took place. (See Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542.) “Do the findings of the trial court bring this case within the meaning of this term? The fact that deceased was compelled to live on the lease and to be on duty twenty-four hours a day and to have a warm place to stay, which would necessitate the building of a fire in the heating stove, cannot be held to have this effect. In the first place, the building of this particular fire was as much for the comfort and well-being of the members of the family of deceased as for enabling him to carry on his employment. He would have been compelled to build a fire in a heating stove or furnace no matter where he lived or what had been his employment unless he happened to live in an apartment house where a janitor took care of that duty. The act' of building this fire was no more a part of his employment than the act of helping his wife do the supper dishes would have been. Suppose he had cut his hand on a glass while drying it in the kitchen, would anyone argue that such an accident happened ‘in the course of’ his employment? It has been said many times that workmen’s compensation has been provided so that industry should bear the expense of those injured while engaged in carrying it on. But in order for this theory to apply here we would be compelled to conclude that this man would not have been compelled to build a fire in a heating stove on a cold morning except for the fact that he was employed as a pumper on a lease. We all know such was not the case.” (p. 134.) When we review the above rules in the light of the circumstances of the case we are considering we are impelled to the conclusion that there was no causative connection between the fact that the deceased in this case had the money of his employer on his person when he was killed and his injury or accident would have occurred just the same had the money not been in his possession. The accident cannot be held to have arisen “out of” the employment. It should be observed that there are early decisions of this court which might seem to hold an accident such as we have here to be compensable. We prefer the rule, however, as it has been stated in the authorities cited here. The judgment of the trial court is reversed with directions to enter judgment for the respondent.	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The opinion of the court was delivered by Smith, J.: This is a claim for an attorney’s fee filed in the probate court against an administrator of an estate as administrator and as an individual. The probate court allowed a fee. On appeal the district court allowed a fee. The administrator has' appealed from that judgment. When the appeal was taken from the probate court the district court ordered the parties to file additional pleadings. Accordingly claimants filed a pleading which they have designated a “Bill of Particulars.” In this they alleged as a first cause of action that they had been employed by one Gilbert C. Whitsitt individually and as administrator to perform certain services as his attorneys; that pursuant to this employment they prepared objections t® the admission to probate of the last will and testament of Elizabeth Lewis Whitsitt, the deceased wife of Lewis Whitsitt; that if said instrument should be admitted to probate they were to secure his appointment as administrator, also to enforce the collection of a claim of Elizabeth against the estate of her mother; to bring an action to construe the will if it should be admitted to probate; and to represent Whitsitt in all matters relating to the administration of the estate; that pursuant to this employment the claimants did oppose admission of the will to probate. When it was admitted to probate they secured the appointment of Whitsitt as administrator and they presented a claim of Elizabeth against the estate of Olivia E. Lewis, which was finally settled for the sum of $875; that they secured an order from the probate court authorizing Whitsitt to bring an action to construe the will; that they did bring such action and obtained a judgment, which was affirmed in the supreme court, to the effect that under the terms of Elizabeth’s will Gilbert became the owner in fee simple of all of the property left by Elizabeth; that on the 18th of October, 1940, Whitsitt paid a claim for $200 on expenses; that when notice of appeal of the will-construction case to the supreme court was filed Whitsitt agreed with the claimants that they should proceed to represent him in the action in the supreme court and that he would pay $4,000 therefor and $1,000 of this was paid at that time; that in accordance with the agreement they proceeded to present the appeal to the supreme court and secured an affirmance of the judgment; the bill of .particulars further stated that no claims were ever filed against Elizabeth’s estate and all the legal services performed ,by claimants inured directly to Whitsitt as her only heir; that oral demands had been made upon Whitsitt for the unpaid balance of $3,000; that he refused to pay it. Judgment was requested for that amount. The bill of particulars also contained a second cause of action in which the claimants made the statement of their first cause of action a part. It alleged further that the reasonable and fair value of their services was $4,000 together .with the expenses in the amount of $300; that they had been paid $200 to apply on expenses and $1,000 to apply on the fee. Judgment was prayed in that cause of action for $3,100, with interest. Gilbert Whitsitt filed no pleading as an individual, but as administrator he filed an answer in which he admitted the contract of employment and that the claimants had performed all the services incident to the administration of the estate and the construction of the will and denied all other allegations, especially that the1 reasonable valúe of the services performed by claimants was $4,300 and alleged that $1,200 would be the fair and reasonable value. The administrator also demurred to the first cause of action because it attempted to allege a contract of employment entered into by the administrator, which contract it was alleged would not be binding upon the administrator. At the outset of the trial it was stipulated that the claims of the claimant against Whitsitt as administrator and as an individual be heard together. 'Both of the claimants testified as to the contract of employment; as to the work done in preparing the various matters for trial and giving them the necessary attention in court. In addition to that various reputable and able lawyers testified as to the reasonable value of the services performed by claimants. One lawyer said that the fair and reasonable compensation would be from $4,000 to $5,500. This was a lawyer who had been engaged in some litigation on the other side. Another lawyer said that the amount claimants testified was agreed upon, that is, $4,000, would be reasonable. Another one put the figure from $4,000 to $5,000. Another lawyer, a former distinguished district judge in this state, stated the fair and reasonable fee would be $4,000. The trial court heard all this evidence and other evidence of the claimants and of Whitsitt. There was some testimony as to the contract to pay the $4,000 which claimant claimed had been entered into. The district judge who tried this case was the same district judge before whom the action to construe the will was tried. (See Whitsitt v. Mulkey, 154 Kan. 138, 114 P. 2d 836.) He was familiar to a certain extent with the work that had been involved. The trial court having heard all this evidence, recited the services which had been performed by the claimants, and in ascertaining the reasonable value of the services said that he considered: “(a) The nature of the litigation, the time and labor required, the amount involved and the benefits, if any, resulting to the client from the litigation and services rendered. “(b) The novelty and difficulty of the questions involved and the skill requisite properly to conduct the case, together with the capacity and fitness of the lawyer for the required work. “(c) The customary charges of the Bar for similar services. “(d) The character of the employment—whether casual or for an established client, together with the contingency or certainty of the compensation.” Appellant makes an extended argument in this court on the question of the value of the estate that came to him as a result of the litigation carried on for him by claimants. He argues that the record did not justify a finding that the value of this estate was anywhere near as great as the court held it to be. The value of the property obtained as a result of the services of a, lawyer is not, however, the only criterion as to the value of the services. In 5 Am. Jur. 379, the rule is stated as follows: “In the absence of an express contract of employment between an attorney and his client fixing the amount of the attorney’s compensation, it is generally held that the attorney is entitled to what his services are reasonably worth, or what has usually been paid to others for similar services. The determination of this depends largely upon the circumstances of the particular case. Among other things to be considered are the importance and results of the case, the difficulties thereof, the degree of professional skill and ability required and exercised, the skill, experience, and professional standing of the attorney, and the prominence of character of the parties, where it affects the importance of the litigation, as well as the amount or values involved or recovered. The value of the services of an attorney is necessarily to be determined by many considerations besides the mere time visibly employed in the conduct of a suit, although in the absence of other evidence, the court must be guided in estimating the value of attorney’s services by the time or amount of labor performed as indicated by the record.” See, also, 6 C. J. 748, 9 A. L. R. 239; also Rule 12, Canons of Professional Ethics adopted by the American Bar Association and the Kansas Bar Association. Furthermore, there was substantial evidence to warrant the trial court in making the finding it did make as to the value of the estate and other facts. The trial court applied the above rules to the facts and found that the services of claimants were reasonably worth $3,000, which amount included the necessary expenses. When the $1,200, which had been paid, was deducted from this it left $1,800. Judgment was given for this amount. We find no reason for disturbing this judgment. The claimants have filed a cross appeal in which they contend that they were entitled to the amount of a fee'which they testified was agreed upon. The .trial court heard all the evidence on this point and by its action in fixing the fee on the reasonable value of the services found in effect that the contract had not been made. We are unable to find a basis upon appeal to overturn this conclusion. The judgment of the trial court is affirmed.	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The opinion of the court was delivered by Wedell, J.: This was a suit to quiet title to an oil and gas lease in Stafford county.. Plaintiff prevailed, and defendants appeal. The landowners were not parties to the suit, the controversy being entirely between alleged lease owners. The appeal is only from the., order overruling defendants’ motion for a new trial. The grounds Contained in the motion were: “(1) Accident and surprise which ordinary prudence could not have guarded against. “(2) Erroneous rulings of the court. “(3) The judgment is in whole or in part contrary to the evidence.” In view of the stipulated facts and the total absence of the slight est contention made by appellants in the course of the entire trial, touching the subject of accident and surprise, it is unnecessary to treat the first ground of the motion. Certainly it cannot be said any substantial rights of appellants were affected by accident or surprise, which if it in fact existed, was so slight as not to occasion the remotest complaint or objection during the trial. Moreover, the record rather clearly tends to indicate there was neither accident nor surprise. The second ground of the motion, insofar as admission of evidence is concerned, relates to the first ground. The principal complaint on appeal pertains to the admission of evidence with respect to agency concerning which appellants contend they were surprised. Much of appellants’ brief is devoted to that subject. It involved the question whether under the oral arrangement between the landowners, husband and wife, and a man by the name of Fulks, the latter was required to take the lease in his own name, or whether he was authorized to sell it to some other purchaser in the event he decided not to take the lease himself. The written lease, attached to the petition, was executed by the landowners, George L. Wright and his wife, and the name of the lessee was left blank. While the averments of the petition might have been more definite and certain, they were sufficient, in the absence of a motion to make them so, to support proof on either theory. The second ground of the motion was properly denied by the trial court for another reason. George L. Wright testified positively he had given Fulks authority to insert the name of the person to whom he (Fulks) might sell the lease. We do not find a single objection in the entire record to any testimony pertaining to Fulks’ agency to sell the lease to appellee or to any other person, in the event Fulks decided not to purchase the lease himself. In fact, testimony of Fulks’ agency was introduced by appellants themselves who called Fulks as their own witness. Manifestly, they are in no position to urge the second ground of the motion insofar as the admission of evidence is concerned. This brings us to the third ground of the motion. The trial court made findings of fact and conclusions of law. The findings made clearly support the judgment. Appellants did not move to set aside a single finding of fact on the ground it was unsupported by evidence or for any other reason. They did not move for contrary or additional findings of fact. The findings made support the judgment. No errors of any kind or character were urged until the motion for new trial was presented. One of the specific findings of the trial court was: “The court further finds that, in the arrangement with the said Fulks, it was agreed between the lessors and the said Fulks that said Fulks should either act as broker and secure a purchaser for said mineral rights or he could exercise the election of purchasing said lease for himself.” W. W. Kiskadden, appellee, purchased the lease. The name of appellee was inserted in the lease as the lessee. The consideration for the lease in the sum of $160 was by the landowners assigned to the Federal Land Bank of Wichita, which held a mortgage on the leased premises. In compliance with the assignment appellee paid the consideration for the lease to the Federal Land Bank. Under the testimony and unchallenged findings, appellants clearly understood, at the time they accepted a lease from the landowners, that Fulks had obtained an extension of the original time within which the lease could be purchased or sold by Fulks, that such lease had been delivered to Fulks and that the extension of time had not yet expired. Appellants took their lease with full knowledge of all these facts and the court so found. In view of the condition of the record it is unnecessary to consider the further contention of appellants that there was no consideration for an extention of time, granted by the landowners, within which Fulks might purchase the lease for himself. Fulks did not purchase the lease. With proper authorization from the landowners he sold the lease to appellee. Appellants concede no additional consideration from Fulks was necessary to support the granting of an extention of time within which Fulks might sell the lease to another. In the light of what has already been said, we need not discuss appellants’ further contention that their demurrer to appellee’s evidence should have been sustained. That contention involves the same subjects of agency and want of consideration which have already been considered and determined. The judgment is affirmed.	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The opinion of the court was delivered by Dawson, C. J.: This appeal is concerned with the effect of G. S. 1941 Supp. 59-1701, being section 131 of the probate code of 1939, upon the authority of a foreign corporation to act as testamentary trustee of a trust created by the will of a resident of this state. The late George C. Lowe, a resident of Johnson county, died on April 12, 1940. He was a man of considerable means, and although he had his home in Johnson county, his long business career had been conducted in Kansas City, Mo., just across the Kansas-Missouri state line. Lowe’s will was probated in Johnson county. It had been executed on November 15, 1939, some four and a half months after the new probate code took effect. The testator’s home residence1 in Johnson county, Kansas, and its furnishings and purely personal effects were devised to his widow. In an elaborate trust instrument suitable provision was made for her support and maintenance. His three daughters were likewise provided for, and a half brother and his family were also remembered. His daughter Georgia C. Lowe was named sole executrix without bond. With these details we shall have no serious concern. The legal question which gave rise to this lawsuit grows out of two paragraphs of the testator’s will which deal with the designation of the testamentary trustee, the first of which reads, in part, thus: “4. I give, devise and bequeath all of the rest, residue and remainder of my property and estate, of whatever character, whether real, personal or mixed, and wherever situated, unto Union National Bank in Kansas City, a corporation, of Kansas City, Missouri, its successor or successors, as trustee, to have and to hold the same in trust, with the' powers and authority and subject to the terms, conditions and provisions hereinafter set forth.” This paragraph continues for six pages of instructions as to the duties and powers of the trustee, but these may need no attention. The next paragraph of the will of present concern reads: “6. I desire and direct, and it is my will and intention, that the trust estates created in this, my last will and testament, shall have' their situs solely and exclusively in the state of Missouri and that said trusts be administered by the trustee in said state and in accordance with the laws of said state, and I direct my executrix herein named to deliver the assets comprising the trust estate or estates to my trustee, Union National Bank in Kansas City, or its successor, at its office in Kansas City, Missouri. I relieve and release my trustee from the duty or necessity of filing any and all inventories and accountings with any court, including the probate court in which this, my last will and testament, is admitted to probate.” In due course the executrix filed her final account and applied for an order of distribution of the assets in her hands, which included the sum of $165,023.62 in cash and liquid assets, and which constituted the trust fund created under paragraphs 4 and 6 of the testator’s will. On October 13,1941, the probate court made its order of final distribution, which in part reads: “After due consideration of the arguments presented and briefs filed by counsel with this court on behalf of the executrix concerning the qualifications of the Union National Bank of Kansas City, Missouri, as trustee in this estate, the court being fully advised in the premises, finds: “6. That the said will designates Union National Bank in Kansas City as trustee of the residium of said estate; that said bank is a corporation organized and existing as a national bank and has its banking house and principal place of business in Kansas City, in the state of Missouri and without the state of Kansas and is not located in this state; that said bank is neither a bank or other corporation organized under the laws of and having its principal place of business in this state nor a national bank located in this state; that said bank is neither qualified under the laws of this state to receive said trust estate constituting the residium of this estate from the executrix nor to administer said trust estate because it is a national bank not located in this state as aforesaid ; that the testator has by his will indicated his wish that a corporate fiduciary receive and administer the trust estate created by said will and that by reason of the disqualification of the trustee named, the duty devolves upon this court to designate a trustee qualified to act in order that said trust shall not fail. ■ “7. That the Johnson County National Bank and Trust Company is a national bank located in this county and state, with power to act as trustee and in other fiduciary capacities and is in all respects authorized to act as trustee herein after filing the bond herein required and making the affidavit required by law. “8. That distribution of the remaining assets of the estate of George C. Lowe, deceased, be made as follows, to wit: “To the Johnson County National Bank and Trust Company, all the rest and remainder of the said estate, as trustee, to have and to hold the same in trust with the powers and authority subject to the terms, conditions and provisions of said will.” Then followed the formal order designating and appointing the Johnson County National Bank and Trust Company to receive and administer the trust estate under the terms of the testator’s will, and directing the executrix to deliver to it all the remaining assets of the estate in her hands. This order of the probate court was promptly appealed to the district court and the matter was promptly heard and decided in that court, which held— “That the deceased intended to create and did create a trust estate of said residuary assets having its situs and to be administered in and under the laws of the state of Missouri; that section 131 of the Kansas probate code (section 59-1701, G. iS. 1941 Supp.) merely prohibits a nonresident corporation from acting as trustee in the state of Kansas and does not prohibit a resident decedent of Kansas from making a bequest of personal property to a nonresident corporate trustee to be administered by such trustee at its place of business outside the state of Kansas; that the probate court of Johnson county, Kansas, in its order, judgment, decree and decision 'made and entered in said court in the matter of the estate of George C. Lowe, deceased, on October 13, 1941, erred in disqualifying said Union National Bank in Kansas City from acting as trustee of said trust estate and erred further in appointing the Johnson County National Bank and Trust Company as trustee of said trust estate and in ordering and directing the executrix of said estate to make distribution of the re siduary assets of said estate to said the Johnson County National Bank and Trust Company as such trustee; that section 131 of the Kansas probate code has no application to the facts in this case and that the will, wishes, intention and desires of George C. Lowe, deceased, as expressed by his said last will and testament, should be given full force and effect.” The district court set aside the order of the probate court, and held the Union National Bank of Kansas City, Mo., was qualified to receive the residuary assets of the Lowe estate and directed the executrix to deliver them to it in accordance with the testator’s will. Hence this appeal. The importance of the legal question involved has called forth exhaustive briefs by counsel for appellant and appellees, and we have been favored with briefs by various amici curiae, one of whom was a member of the legislature in the session of 1939 and served on the committee of the House of Representatives which had charge of the bill which constitutes the present Kansas probate code (G. S. 1941 Supp. 59-1a01, Laws 1939, ch. 180; G. S. 1941 Supp. 59-1a01 et seq.). The pertinent section of the hew probate code, around which this lawsuit turns, is section 131 of the new code, being G. S. 1941 Supp. 59-1701, which reads: “No bank or other corporation, unless it is organized under the laws of and has its principal place of business in this state, or is a national bank located in this state, shall be appointed or authorized directly or indirectly to act as a fiduciary in this state, except in ancillary proceedings; and no officer, employee or agent of such bank or corporation shall be permitted to act as a fiduciary in this state, whether such officer, employee or agent is a resident or a nonresident of this state, when in fact such officer, employee or agent is acting as such fiduciary on behalf of such bank or corporation; nor shall any bank or other corporation be appointed guardian of .the person of a ward.” G. S. 1941 Supp. 59-la02, in part, reads: “As used in this act ... (2) the word ‘fiduciary’ includes representatives, trustees, and surviving partners administering their trusts; ...” At the outset, it may shorten our present task to say that the general doctrine which may be gleaned from the wealth of citations and textbook authorities cited by counsel for appellees touching the right of a testator to make any disposition of his property he sees fit, subject only to statutory qualifications on that right, will not be gainsaid'. Indeed this court has emphatically stated the same rule. In Fox v. Eaglin, 132 Kan. 395, 401, 295 Pac. 662, it was said: “Subject to statutory exceptions . . . any person may dispose of his property by deed or devise, by gift or bequest, without let or hindrance, in favor of anybody under the sun. (Citations.) ” In this case, however, we have to consider whether the new statute has not added another exception to those which were casually acknowledged when the rule in Fox v. Eaglin was declared in 1931, eight years before the statute of 1939 was enacted. So our present problem is to decide whether the new statute has abrogated the right of a Kansas resident testator to appoint and authorize a foreign corporation to serve as trustee of a testamentary trust. George C. Lowe died a resident of Johnson county, Kansas, and his will has been probated in this state. Hitherto, since his death and the qualification of his executrix, his estate, both real and personal, has been in custodia legis of the probate court of Johnson county. Now the time has come for that court to order final distribution of Lowe’s estate in accordance with the terms of his will. But that court is brought to a standstill when it comes to make an appropriate order to the executrix to dispose of the residuary assets in her hands. The will directs that they be delivered to a Missouri corporation, which was not organized in Kansas and which does not have its principal place of business in this state. But the statute just quoted says that no such corporation "shall be appointed or authorized ... to act as a fiduciary in this state,” except in ancillary proceedings. How then can the probate court of Johnson county make a legal order directing the executrix to deliver the residuary assets to this Missouri corporate trustee? The statute not only disqualifies the foreign corporation to act, but forbids the very thing the testator undertook to do—to appoint and authorize the Missouri corporation not organized under Kansas law, to serve as trustee. Appellee argues that the statute merely denies nonresident corporations the right to act as a fiduciary in this state. It concedes that under the statute such a corporation could not act as an executor of the will of a resident decedent, and that it could not administer a trust consisting of real estate, but that the statute does not prohibit a resident of this state from bequeathing his personal property to a nonresident legatee, whether the latter be an individual or a corpo ration. Even so, that point hardly gets to the crux of this lawsuit. We discern no intention in the statute to restrict the testator’s right to make an outright devise or bequest of his property to a nonresident corporation. We have no doubt this testator could have made a bequest of a sum of money to the Union National Bank of Kansas City, Mo., if its corporate charter gives it power to accept such a testamentary gift. But this Missouri bank is'not a simple beneficiary under Lowe’s will. (Gilpin v. Burch, 145 Kan. 224, 233, 65 P. 2d 308.) Appellee also argues that the trusteeship imposed by the will will not perform any of its forbidden corporate functions in Kansas. It would have to receive the trust fund at ihe hands of the executrix on the order of the probate court. That would be a corporate act necessary to be performed in Kansas. In Guaranty Trust Co., Petitioner, 248 Mass. 319, 143 N. E. 46, the action was to determine whether the Guaranty Trust Company, a New York corporation, not authorized to do business in Massachusetts, could serve as trustee of a testamentary trust created by the will of a testatrix who had been a -resident of Massachusetts. Because of a statute which declared that “no foreign banking association or corporation shall transact business in this commonwealth until it has received a certificate from the board of bank incorporation authorizing it so to do,” the probate court checked up to the supreme judicial court the question whether the New York corporation could serve as trustee under the circumstances. The court gave a negative answer. The syllabus reads: “If a foreign banking corporation were appointed trustee under the will of a testator, who died leaving property in this commonwealth and whose will had been proved here, it would be engaged in the transaction of business within the commonwealth within the terminology of G. L., c. 167, § 37. “A probate court cannot appoint as a trustee under a will of a testator who died in this commonwealth a foreign banking corporation which -has not received a certificate from the board of bank incorporation under G. L., c. 167, § 37, authorizing it to transact business in this commonwealth.” The opinion, in part, reads: “As trustee under the will of Mrs. Jones, the Guaranty Trust Company would have active duties to perform extending over an uncertain period of time; the funds would have to be cai’ed for and invested, the income paid to the beneficiary for life, accounts rendered, and in the administration of the trust it would be under the direction and supervision of the courts of this commonwealth. The trustee was not called upon to perform a single isolated act of business, but was required to carry on a series of acts during the lifetime of the beneficiary. ... In our opinion if the petitioner were appointed trustee it would be engaged in the transacting of business within the meaning of the statute, which it could not perform without, the certificate required by the statute.” (pp. 321, 322.) In Bank of New York &c. Co. v. Tilton, 82 N. H. 81, 129 Atl. 492, the question requiring determination related to the right of a foreign corporation to be appointed trustee under the provisions of a will naming it for that office. The pertinent New Hampshire statute, enacted in 1919, had substantially restricted the earlier law of that state. It read: “Hereafter any trust company, loan and trust company, loan and banking company, and all other corporations of a similar character, incorporated under the laws of this state, and any national bank being duly authorized and located within the state, may be' appointed trustee in any case where an individual can be appointed, upon the same conditions and subject to the same control, requirements and penalties; but no corporation shall be appointed in any other fiduciary capacity. Every corporation when appointed by any court in such capacity shall give bond of an indemnity company licensed by the insurance commissioner to do business in this state. The exercise of the powers granted herein is limited to the' specified corporations located in this state. (Laws 1919, c. 121, s. 1.)” (p. 82.) In discussing the effect of the statute, the court said: “Taking this enactment as it reads, it is a plain exclusion of foreign corporations from any appointment, by a court to any trusteeship. The arguments against this interpretation are largely based upon the law existing when the statute was enacted, and upon the history of its progress through the legislature. In 1917, provision was made' regulating the appointment of a foreign corporation as a trustee. (Laws 1917, c. 193, s. 1.) It is argued that before that time such corporation could be so appointed. This position may be conceded to be correct, for the purposes of the argument. It was under these circumstances that the act of 1919, above quoted from, was passed. “The legislature evidently understood that it was dealing with the general subject of power to act in such capacity. It is apparent that the legislative understanding was that such power was then granted, and that the limitation above quoted applied to that office generally. “But here the legislature recognized that it was making a change in existing statutory law. The new law was to prevail. All that was inconsistent with it was repealed. “Arguments that the act when construed as heretofore indicated is provincial and an unjust limitation of the power of a testator to provide as to who shall administer trusts created by his will, have not been overlooked. They relate to matters of policy, as to which men may differ in their views. They could not override legislative action, even if they [were] believed to be sound. They are at the most mere aids in the solution of doubts, which do not exist in the present instance.” The case of Will of Risher, 227 Wis. 104, 277 N. W. 160, 115 A. L. R. 790, holds a contrary view. In that case a resident of Wisconsin died testate and his will was probated in Wisconsin. By its terms a trust was created in favor of his wife and children, and the trustee named to execute it was a Pennsylvania corporation not authorized to do business in Wisconsin. The supreme 'court of Wisconsin held the Pennsylvania corporation could serve as trustee, emphasizing the intention of the testator, and declaring that “ ‘courts have no power to frustrate it and substitute a different scheme— there can be no substitute method.’ . . . Anything designed to defeat the intent of the testator is against public policy.” (pp. 110, 111.) Doubtless this decision is a correct statement of Wisconsin law, but it is too broadly stated to conform to Kansas law. With us the intention of the testator will be faithfully carried out unless some rule of public policy forbids. And for the most part the public policy of this.state is declared by the legislature, not by the courts. Moreover, in the Wisconsin case there was no Wisconsin statute which forbade the testator to appoint and authorize the foreign corporation to serve as trustee of the trust created by his will. Our statute forbids that very thing as clearly and explicitly as language can make it. It forbids the testator to appoint and authorize a foreign corporation to serve as trustee and forbids the court to give judicial countenance to such an appointment, or to make any order which would have the effect of flouting the statute. It has always been the law in this state that the expressed wishes of the testator could be overruled when the sound discretion of the court prompted it to hold that the conservation of the estate or the interest, of beneficiaries so required. The most familiar instance of this sort happens when the testator, names an executor to serve without bond. The court may require a bond nevertheless. (In re Estate of Dennis, 146 Kan. 121, 68 P. 2d 1083.) Another instance is where a testator provides that his estate shall be kept intact for thirty years or more, the expressed will of the testator is clear enough, but the rule against perpetuities will require that it be ignored. (Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645; Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146.) The law books are laden with instances where a conflict has arisen between a testator’s intention and positive rules of law, and of course the latter must prevail. Thus in Albee, Administrator, v. Carpenter & Another, 66 Mass. (12 Cush.) 382, 386, the devise provided— “Thirdly. I give and bequeath to Amey Albee, wife of Amory Albee, all the rest, residue, and remainder of my property, of whatever name or nature, to her and her heirs. And if said Amey Albee died, without issue or heirs, it is my will and pleasure that the above-named Noah Carpenter and Ann Eliza Carpenter, should have the last-mentioned property to them and their heirs forever, equally to be divided between them.” The court, speaking by Chief Justice Shaw, said: “We are aware that the intent of the testator is the leading consideration in the construction of a will, and is to govern; but it is with this qualification, that it can be carried into effect, consistently with the rules of law. If it was the intention of the testatrix to give an estate to Mrs. Albee and her issue and descendants, if'she should have any, then it was an estate tail in her as the first taker; and the further intention, that Carpenter and his sister, should have it, after her decease, was contrary to the rules of law, and could not take effect, because it was to limit a gift of personal property to the determination of an estate tail, which the law does not admit.” (p. 388.) See, also, our own recent case of In re Estate of Weeks, 154 Kan. 103, 114 P. 2d 857. Notwithstanding the will relieves and releases the named trustee from the duty of filing inventories and accounting to the probate court, our law is more solicitous about the rights of the benficiaries of a testamentary trust, especially where they are minors. Article 16 of the new probate code (G. S. 1941 Supp. 59-1601 et seq.) provides that the testamentary trustee shall account from time to time to the court where the will was admitted to probate, and prescribes specific details pertaining to the status of the trust property, and various other duties which the testamentary trustee must perform. It is true that section 59-1607 of the statute provides that the settlor of the trust may relieve his trustee from the performance of the duties prescribed by article 16, but there is an important proviso, which reads: “That the court may, upon the application of any beneficiary or some person in his behalf, require the performance ■ of the duties herein otherwise required. No expression of intent by any testator or settlor shall affect the jurisdiction of the courts of this state over inventories and accounts of trustees, insofar as such jurisdiction does not depend upon the provisions of this article.” Moreover, in article 11 of the new code, 59-1104, it is provided that although the testator shall express a wish that a trustee named in his will shall execute a trust created by the will, without giving bond, the probate court in the exercise of its prudent discretion may require such bond to be given at the time the trust res is delivered to the trustee or later on its own motion or on the application of any party interested. By section 59-1106 the probate court may require the fiduciary to file a new or additional bond, or may reduce it, and section 59-1107 provides for the removal of a fiduciary who fails or refuses to comply. Section 59-1711 is to the same effect. Before concluding we feel constrained to say that it is a matter of common knowledge that in the campaign of public education as to the urgent need for a new probate code which culminated in the enactment of 1939, the Kansas legislature, backed by the moral force of the leaders of the Kansas bar, knew exactly what it was about when section 131 was written into the bill and enacted into law. It was intended to put an end for good and all to the practice of letting foreign corporations serve as fiduciaries of the estates of Kansas citizens, and that legislative intention was within its competence absolutely. The judgment of the district court is reversed and the cause remanded to the district court with instructions to set aside its judgment reversing the order of the probate court and to affirm it.	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The opinion of the court was delivered by Hoch, J.: In November, 1940, in the district court of Doniphan county, the appellant was enjoined from the practice of medicine and surgery. Sometime in 1941 complaint was filed charging him with violating the injunction. After trial by the court, the regularity of which is not attacked, he was found guilty of indirect contempt and on January 6,1942, sentenced to pay a fine of $100 and to serve sixty days in jail. From such judgment and sentence he appeals. His main contentions are that the court erred in overruling a motion to strike, in admission of incompetent evidence, and that there was no substantial evidence to support the judgment. The validity of the injunction is not questioned. It is not contended that the appellant’was at any time licensed to practice medicine or surgery or any other of the healing arts in Kansas, although he testified that prior to November, 1940, he had practiced medicine for about twelve years in Troy, Wathena, and other places in this state. He testified that he had taken training in medicine in New York, Chicago, Indiana and other places; that he never went to medical school in New York but took training in a hospital there as a nurse and helper, but that he was never licensed to practice medicine in New York and was not a registered nurse; that he graduated from a school in South Bend, Ind., but could not give the name of the school; that he was given a license to practice in Illinois in 1888 but that he did not know the number of the license and had not kept it up to date; that he always referred to himself as “Dr. E. B. Martin.” Following the injunction, appellant moved to Kansas City, Mo., where he had an office with a Missouri doctor and “saw patients.” He testified that on account of the smoke in Kansas City he suffered from asthma and that he returned to Wathena in April, 1941. He and his wife moved into upstairs rooms where he had previously maintained his office. In an outer or waiting room was a cabinet stocked with packaged remedies or drugs. The accusation, charging the defendant with violating the injunc tion and signed by the county attorney and by the attorney for the Kansas State Boarpl of Medical Registration and Examination, alleged that on June 13 and on October 30, 1941, one W. S. Cordonier, of Wathena, was given medical treatment by the defendant, such treatment consisting of diagnosis and the prescribing of medicine for a fee, and in paragraph 5 it was alleged: “That the defendant, E. B. Martin, since the month of June, 1941, has been engaged in the practice of medicine at and within the city of Wathena, Doniphan county, Kansas, in willful and contemptuous violation of the order of this court. That the relators are at this time unable to give the court the exact names of the patients or the type of medicinal treatment given by the respondent other than as above detailed, and for that reason have not alleged those further contemptuous acts in more detail.” In his answer, the defendant denied, generally and specifically, the allegation that he had practiced medicine or had in any way violated the injunction, and alleged that such drugs and medicine as were sold to Cordonier were sold under the authority of a state license to dispense such drugs and medicines in unbroken packages. At the trial the defendant moved to strike paragraph 5 from the accusation of contempt on the principal ground that it “is irrelevant and indefinite and it does not properly apprise- the defendant of the nature of any charge preferred against him.” The motion was overruled and this is urged as one of the principal specifications of error. At the trial the state relied upon the alleged medical treatment to Cordonier and upon the testimony of Mrs. Nick Gabriel as to treatments given her by the defendant. We first consider appellant’s contention that Mrs. Gabriel’s testimony was inadmissible. He says that in the accusation there was no allegation that medical treatment had been given Mrs. Gabriel and that the only theory upon which her testimony could have been received was that it was covered by the general charge contained in paragraph 5, quoted above, which, he contends, the court erroneously refused to strike. We must here note the situation presented by the record. Apparently no objection was made, at the time, to the admission of Mrs. Gabriel’s testimony, nor was there a motion to strike it out. Furthermore, appellant’s position is not fortified by any showing as to a motion for a new trial. We have appellant’s notice of intention to appeal and to file a motion for a new trial, but we are furnished with no copy of such motion and there is nothing to show, by journal entry or otherwise, what the motion for a new trial, if filed, contained, or whether it was heard or action was taken upon it. Moreover, the notice of appeal to this court makes no reference to any order overruling a motion for a new trial. The appeal here is only from the judgment and sentence. On such a record and with no showing that any alleged trial errors were called to the trial court’s attention Mrs. Gabriel’s testimony will not be excluded from our consideration. (Washburn v. Bank, 86 Kan. 468, 121 Pac. 515; Brick v. Fire Insurance Co., 117 Kan. 44, 230 Pac. 309; Rierson v. Southern Kansas Stage Co., 146 Kan. 30, 32, 69 P. 2d 1; State v. Rafferty, 145 Kan. 795, 798, 67 P. 2d 1111.) Mrs. Gabriel’s testimony was the only evidence which could be said to have been received in support of the general allegation of paragraph 5. There is, accordingly, no occasion for examining further the question of whether paragraph 5 should have been stricken out or whether the alleged error in refusing to do so is here for review. The practice of medicine and surgery—within the meaning of the statutes relating to the examination and registration of doctors of medicine and surgery (G. S. 1935, art. 10, ch. 65)—is defined in section 65-1005. We neéd not quote the section in full. Among the persons regarded as engaging in such practice is included any one “who shall use the words or letters ‘Dr.,’ ‘Doctor,’ ‘M. D.’ or any other title, in connection with his name, which in any way represents him as engaged in the practice of medicine or surgery, or any person ‘attempting to treat the sick or others afflicted with bodily or mental infirmities.” The “practice of medicine,” within the statutory definition above, is not limited to the prescribing of drugs. The diagnosis of a physical ailment and the prescribing for a fee of a treatment for its relief is the practice of medicine even though the prescribed treatment does not include the use of drugs. (Slocum v. City of Fredonia, 134 Kan. 853, 857, 8 P. 2d 332.) In State v. Johnson, 84 Kan. 411, 416, 114 Pac. 390, it was said: “But medicine and surgery, which the appellee is charged with attempting to practice, by common use and adjudged meaning, cover a wide portion of the domain of healing, and may and should be held to cover the case of one who, not claiming to be a physician or surgeon, really practices osteopathy under another guise without possessing the qualifications required of the osteopath.” Our cases are in line with the general rule. The treatment prescribed may be manual manipulation of portions of the body or even the taking of a trip, or sleeping in the open air, etc. (41 Am. Jur. 152, 153; State v. Smith, 233 Mo. 242, 260, 135 S. W. 465.) The remaining question is whether there was any substantial evidence to support the finding of the trial court. This opinion would be.unnecessarily extended by full quotations from the testimony. It would perhaps suffice to say that we have carefully examined the record and find it sufficient to support the judgment. (State v. Rose, 124 Kan. 37, 38, 257 Pac. 731; Newton v. Newton, 127 Kan. 624, 274 Pac. 247; Crawford v. Southern Kansas Stage Lines Co., 145 Kan. 580, 586, 66 P. 2d 601.) However, we may briefly summarize the testimony offered in support of the accusation. Mrs. Gabriel and the defendant both testified that the defendant examined her back and to'ld her that he thought her trouble resulted from “nerve pressure” or “a nerve pinched,” and that he gave her four or five manual treatments or “adjustments.” Each time she was treated she left a dollar on the table as she went out. Appellant made no claim to being an osteopath or a chiropractor. The treatments given to Mrs. Gabriel constituted the practice of medicine, under the statute and the authorities above cited. As to the medicines delivered to Cordonier by appellant, it is true that there was testimony that appellant refused to diagnose Cordonier’s ailment and sent him to Doctor Meluney, but there is no evidence that appellant received any oral prescription direct from Doctor Meluney. What was delivered to Cordonier was characterized as “pills” or “powders” or “tablets” or “herbs” or “parsley roots,” and it was admitted that they were medicines. Cordonier testified that he took the tablets three times a day because that is the way the appellant “prescribed it”; that appellant didn’t tell him what the “powders” or “herbs” were for but told him “they would take care of me.” Appellant testified Cordonier paid 25 cents, the first time, for the medicine. Cordonier said he paid $1.25. Appellant testified that he did a retail business of selling packaged medicines, in unbroken packages, under a license from the State Board of Pharmacy, but that the license was issued to his wife. It is not our function to weigh conflicting evidence or to pass upon the credibility of witnesses (Bullock v. Kendall, 80 Kan. 791, 104 Pac. 568; Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79). The record prevents our saying that the trial court had no substantial evidence upon which to find that the appellant had practiced medicine in violation of the injunction. We note, in conclusion, a matter of procedure. Appellant per fected his appeal under both the criminal and civil codes and asks us to determine what is the proper procedure to follow on appeal from conviction for indirect contempt. The state raises no question about the matter and concedes that appellant is regularly here. The instant proceeding was properly brought under section 20-1204, which prescribes procedure, in cases of indirect contempt, and review is provided for under section 20-1205. We find no need here to discuss further any procedural question not brought in issue. It follows from what has been said that the judgment and sentence must be affirmed. It is so ordered.	[ 16, -22, -15, -3, 10, -63, 42, 26, 114, -95, -75, 115, -19, -111, -123, 105, -126, 45, 80, 121, -9, -73, 70, 73, -46, -45, -37, -43, -71, -49, -12, -35, 77, 56, 10, -99, -122, 66, -57, -36, -114, 4, -119, -46, 80, -128, 48, 63, -40, 11, -79, 31, -29, 42, 30, -57, -87, 44, -53, -68, -127, -79, -112, -107, -51, 20, 33, 6, -100, -121, 88, 126, -104, 17, 113, -68, 115, -10, -126, 117, 71, -19, 36, 102, 98, 49, -99, -19, -24, -88, 63, 60, -115, -89, -101, 72, -22, -127, -98, -71, 116, 120, 15, 120, -28, 21, 95, 40, 14, -113, -76, -79, 31, 49, -100, -20, -21, 103, 33, 81, -43, -74, 93, -121, 123, 27, -70, -108 ]
The opinion of the court was delivered, by Smith, J.: This action originated as an application to probate a will. The will was admitted to probate and certain other proceedings were had. The widow of testator appealed to the district court from various orders of the probate court. She filed a new pleading in the district court which she entitled a statement of position or bill of particulars. The executor of deceased and certain devisees named in the will demurred to that pleading. This demurrer was overruled. They have appealed. For the purpose of this opinion the facts are undisputed. They are as follows: F. M. Hoover entered into a contract with his wife, Alice, on October 22, 1930. This contract contained, amongst other things, the following provision: “Said Alice Hoover further agrees that F. M. Hoover shall have and does have the right to make and execute any last will and testament making disposition of his property, real, personal or mixed and of whatsoever kind and wherever situated, as he may see fit and to whomsoever he may desire and hereby irrevocably consents to the making and execution of such last will and testament.” Hoover died testate on October 9, 1940. In his will after providing for the payment of his debts he left all his property to two- grandsons. On October 11, 1940, a petition asking for the probate of the will and the appointment of an executor was filed. The statutory notice of the time and place of the hearing was given. At the time of the hearing on this petition the contract referred to above was introduced in evidence. On October 25, 1940, the probate court admitted the will to probate and determined that by reason of the contract Alice had conveyed all her interest in the property of Hoover to him and had irrevocably consented for a valuable consideration to the making and execution of the will in question; that no attempt had been made to set this contract aside and that by reason of this contract Alice was estopped from claiming any interest in the estate of Hoover; that she had consented to the making of the will. Judgment was entered in accordance with those findings. On December 16, 1940, Alice filed an application in the probate court as a surviving spouse asking that certain personal property be set off to her and that the court set apart for her that portion of the estate which she was entitled to take under the laws of intestate succession; on the same date she filed a motion to set aside as much of the order of October 25 as related to the contract to which reference has been made on the ground that she had not been notified that matters pertaining to the contract were to be presented to the court and that nothing in the petition to probate gave her any indication that the matter of her election to take under the will would be brought before the court at that time; that such findings were in direct violation of G. S. 1941 Supp. 59-2233; that the contract did not constitute an election and was invalid; that she had never made an election to take under the will; that the contract was not acted upon by the parties; the consideration recited was never paid and she had been led to believe that the contract had been destroyed; that the order attempted to deprive her of statutory allowances which were due her under G. S. 1939 Supp. 59-403; that the order violated the provisions of G. S. 1941 Supp. 59-404 because there was no express waiver of the statutory allowances provided in G.. S. 1941 Supp. 59-404. On April- 28, 1941, the probate court denied Alice’s motion to vacate the order of October 25, 1940, and denied the application for the statutory allowances and her election to take under the law rather than under the will. On May 23, 1941, Alice gave notice of appeal to the district court. This notice recited that the appeal was from the order of October 25,'1940, admitting the will to probate, in which order the court found that Alice was estopped to claim any interest in the estate; that she had consented to the making and execution of the will; that it was not necessary for her to be cited to make an election thereunder; and also the order of April 29, 1941, in which the court refused to vacate a portion of the order of October 25 and refused her application for statutory allowances and denied her election to take under the law. Pursuant to G. S. 1941 Supp. 59-2408, the district court required her to file additional pleadings, whereupon she filed a document which she called appellant’s statement of position or bill of particulars. In this document she recited the various steps that had been taken in the probate court about as they have been detailed here. She set out various reasons why the order of the probate court of April 28 should be set aside. To this document the executor of the estate filed a motion asking that it be dismissed because the court had no jurisdiction and also a motion to make it more definite and certain. Without any hearing on that motion she filed on December 6, 1941, a new statement of position in which she again set out the various steps that have been referred to here and in which she stated that this order should be set aside insofar as it attempted to enforce the contract on the theory of estoppel or to establish her consent to the will because it was not a consent to take under the will for the reason it was not witnessed by two witnesses, as required by G. S. 1935, 22-238. She further stated that enforcement of the contract was a separate matter and the burden of enforcing it devolved upon the legatees under the will; that the consideration for the contract had failed in that the thousand dollars named in the contract as a consideration was never paid; that F. M. Hoover represented to her that if she signed the contract he would drop all ideas of obtaining a divorce and that shortly prior to the time of the contract Hoover had moved to his farm with a small amount of supplies and he came to Alice and stated to her that if she would go to Lyons and sign the contract he would drop his plans to obtain a divorce and that he would live with her; that Alice did not have independent advice before signing the contract and did not read it, and within six weeks of signing the contract, December 2, 1930, Hoover filed suit for divorce; that the parties resumed marital relations immediately after signing the contract and continued to live together until the death'of F. M. Hoover, and that on January 6, 1931, Hoover orally agreed with Alice to destroy the contract and as evidence of his good faith dismissed the divorce action. She further stated that the contract was not just and equitable in its provisions in that her property was worth not to- exceed one thousand dollars and F. M. Hoover had land at least worth ten thousand dollars and money and personal property, the extent of which was never known to her. The executor demurred to the “statement of position or bill of particulars” filed on September 22,1941, and the one filed December 6, 1941, and asked that the appeal be dismissed, upon three grounds: (1) The district court of Rice county, Kansas, had no jurisdiction of the person of the executor or the subject of the action; (2) Neither of the documents entitled “Statement of Position, or Bill of Particulars” stated facts sufficient to constitute a cause of action in favor of Alice as against the executor; (3) Any relief asked by Alice and any cause of action attempted to be set forth in either or both such “Statements of Position or Bills of Particulars” was barred- by the statute of limitations. This motion to dismiss and demurrer were overruled by the trial court. Hence this appeal. The executor points out that the probate court entered its original order on October 25, 1940, and nothing was done by Alice until December 16,1940, when she filed her motion to set aside the judgment of October 25, and her motion to have certain property set aside to her. He points out that more than thirty days had intervened between the date of the judgment and the filing of these two applications, and argues that after the lapse of thirty days from the date of the judgment the probate court lost all control over it. He then points out that more than thirty days had elapsed since the making of the order of October 25 before the appeal was taken and argues that pursuant tó G. S. 1941 Supp. 59-2404 the appeal had to be taken within thirty days. He then argues that since the time had elapsed for the probate court to change its order before the applications of the widow were filed and since the time for appeal had elapsed the appeal to the district court was too late and should have been dismissed. This argument overlooks pertinent provisions of the statute relied on. This was an order admitting a will to probate. G. S. 1941 Supp. 59-2404 provides as follows: “Such appeal may be taken by any person aggrieved within thirty days after the making of such order, judgment, decree or decision: Provided, That an appeal may be taken within nine months from an order admitting, or refusing to admit, a will to probate.” The appeal to the district court from the order of October 25, 1940, was taken May 23, 1941, less than nine months from the date of the order from which the appeal was taken. Alice had nine months within which to appeal from such an order. It is true that Alice only questioned that part of the order having to do with the contract but she should not be deprived of the right to her appeal because the probate court dealt with matters in the order admitting the will to probate that were not properly before it. The matters having to do with the contract were not properly before the probate court because there was no mention of the contract either in the petition or in the notice. Alice was entitled to notice of the fact that the. probate court would be asked to pass on the contract. The statutory notice of the hearing on the application to probate the will did not constitute notice to her of any contemplated action with reference to the contract. So much of the judgment of the probate court of October 25 as related to the contract was void. As to the motion of Alice wherein she asked that certain personal property be set apart to her and in which she stated that she elected to take under the law rather than under the will, we have demonstrated that the action of the probate court in finding that she had by the contract consented to the will was of no effect. Since this is true, then unless she had filed in the probate court an election to take under the will within six months after its probate she should have been deemed to have refused to take under it. (See G. S. 1941 Supp. 59-2233.) She has already stated in her motions that she elected to take under the law: Hence, we are not concerned with the matter of election.' It was the obligation of the executor to raise the issue that the widow had consented to the will by the contract. This properly should have been done in an appropriate proceeding in probate court on proper notice to the widow so that she might have had an oppor tunity in probate court to present any reason she might have had as to why she was not bound by the contract. Here, however, the widow attacked the contract by her motion to set apart certain property to her. This motion was overruled by the probate court and she appealed from that ruling amongst others. In her pleading that was filed in the district court at the direction of the district court after she had taken her appeal she alleged that the contract should not be enforced because the consideration had failed, because Hoover had agreed to destroy the contract and because the contract was not just and equitable. In her pleading she set out various facts and circumstances which if they were established by the proof would raise a question of law as to whether the contract was valid. She also set up facts and circumstances which if established by the proof would raise a question of law as to whether the contract met the statutory requirements of a, consent. All - these matters properly should have been tried out in an appropriate proceeding in probate court. However, since they have now been raised in the pleading filed in district court by the widow at the direction of the court we have concluded that pursuant to G. S. 1941 Supp. 59-2408, the district court should proceed to cause the proper pleadings to- be filed and adjudicate all questions as to the binding effect of the contract. The executor argues that such a holding permits the widow to ignore the contract. Such is not the case, however. She had a right to present all these matters to the probate court. As we have pointed out, she made a timely effort to do so. This record does not disclose whether the probate court heard her application and motion attacking the order of October 25 on their merits or only denied them because of the question of time which was raised by the executor. The point with which we are now concerned is that she shall haye an opportunity to present to the district court any grounds she may have as to why she is not bound by the contract. She had the right to interpose any defense she might have to this contract just as she would to any other contract or even more so on account of the nature of it. In Williams v. Sechler, 127 Kan. 314, 273 Pac. 447, we said: “If the defendant had no knowledge of her rights at the time of signing the consent to the will she cannot be held to have confirmed or approved it, and her consent cannot have amounted to a legal agreement to relinquish her statutory shai'e. (Jack v. Hooker, 71 Kan. 652, 81 Pac. 203.) The plaintiff contends that it is not necessary for the widow to make an election where consent is given. (Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444.) This is the general rule. There are, however, conditions under which the general rule does not aPPly; where, as" in this case, the consent is not fairly and understanding^ given, the rule has no application. In view of the fact that the defendant was requested by her husband to sign the will without knowledge of her legal rights and without explanation of the effect upon her rights to her husband’s property if she consented, we think the court was fully justified in its finding that her consent was not understanding^ given.” (p. 317.) See, also, Menke v. Duwe et al., 117 Kan. 207, 230 Pac. 1065. The judgment of the trial court is affirmed. Harvey, J., concurs in the result.	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The opinion of the court was delivered by Harvey, J.: This was an action to recover a balance claimed to be due on a contract for services performed for a local labor union. The defendants named are The International Hod Carriers, Building and Common Laborers’ Union of America, hereinafter called the International Union; Local Union No. 1290 of the International Hod Carriers, Building and Common Laborers’ Union of America, hereinafter called Local No. 1290, and' twenty persons, sued as individuals and as the respective officers of Local No. 1290. There was no service of summons on the International Union. Though not definitely shown, we assume from the record that each of the twenty persons named as defendant was served individually and as the of ficer he was alleged to be of Local No. 1290. The individual defendants have appealed from an order overruling their demurrer to the third amended petition, predicated on the ground that the petition states no cause of action against them individually. The financial secretary and treasurer of Local No. 1290 has appealed from an order overruling his motion to set aside the restraining order previously issued insofar as it applies to Local No. 1290, its funds, property and assets, which motion was predicated on the ground the court had no jurisdiction in this action of Local No. 1290 for the reason that it is an unincorporated voluntary association, and as such is not a suable entity. The pertinent allegations of the third amended petition may be summarized or quoted as follows: The International Union is a corporation, “duly organized and existing under and by virtue of law,” with its principal office at Washington, D. C.; that Local No. 1290 is a consolidation and merger of Local Nos. 570 and 590 of the International Union and is a subordinate organization and member of the International Union; that the individual defendants constitute the officers and trustees of Local No. 1290, all being members of the executive committee, and hold the respective titles set out in the caption; that Local No. 1290 “is a volunteer association of the individuals herein named, and many more whose names this plaintiff does not know and for that reason does not set out herein, and that this action is brought against these individuals as such, and as representatives and officers of said association, and against all of said parties who may have an interest in said local union as members, because of the fact that the parties are various members, and because it is impracticable to bring them all before the court, and that as such they are engaged in a common enterprise.” That under the constitution and general rules of the International Union the organization has the following jurisdiction and authority: “Sec. 2. This International Union shall have supreme ruling power over all local unions . . . who may come under its jurisdiction. The powers of this union shall be executive, legislative, judicial. The government and superintendence of subordinate unions shall be vested in this International Union as the supreme head of all local unions, and the jurisdiction shall be the ultimate tribunal to which all matters of importance to the welfare of the several local unions or any member thereof shall be referred for adjustment, and its decision-thereon shall be final and conclusive; to it shall belong the power to determine the customs and usages in regard to all matters in relation to the fellowship of the craft.” That the resources of the International Union include monthly per capita tax levied on each member of all local unions and “All receipts from per capita tax, initiation fees, sale of supplies to local unions, and all other sources, not otherwise provided for, shall be placed in and become a part of the general fund of the International Union.” That the president of the International Union has the right to investigate local unions to examine their books, receipts and other papers. “That the executive committee théreof shall have charge of all disputes between unions, and its decision shall be final.” It shall have charge of issuing all charters to local unions, and the jurisdiction of local unions shall be that assigned to it by the International Union; that where there are local unions belonging to the International Union no more charters for local unions shall be granted without the consent of the local union already in existence, unless the general president finds it beneficial to the welfare of the organization to issue another charter. The constitution and general rules of the local unions are prescribed by the International Union. A printed copy of the constitution and general rules of the International Union, also a printed copy of the constitution of Local No. 1290, were attached and made a part of the petition as though fully pleaded. It was further alléged that at all times mentioned herein plaintiff was a member in good standing of Local No. 590, which together with Local No. 570, did in the year 1938, at the direction of the International Union “consolidate and merge to form local union No. 1290 of the same organization and continued thereafter to operate as one organization in the place of two and assumed the assets and liabilities thereinbefore belonging to the two locals before the consolidation and merger.” That by its constitution *a local union cannot voluntarily surrender its charter; its jurisdiction is that assigned to it by the International Union. That about April 4, 1937, plaintiff was installed as business agent of Local No. 590. His salary, beginning with the fiscal year of June, 1937, was fixed at $100 per week by the executive committee; that about December 1, 1937, it was agreed by plaintiff and the executive committee of the local union that his salary be reduced to $50 per week until such time as collections from the membership were' sufficient to justify the payment of the larger sum; that beginning with ’September 28, 1937, and intermittently through the balance of the fiscal year, defendants failed to pay the full amount of plaintiff’s salary until by the end of the fiscal year they were indebted to the plaintiff in the sum of $1,814.40; that during all this time plaintiff performed all the duties of the office of business agent of Local No. 590 and his salary was due and payable each week; that his position as business agent terminated about June 4, 1938, since which time he has- made several demands upon the defendants for payment of his salary, but they have failed, neglected and refused to pay; that as a part of the consideration of the consolidation and merger of local unions 570 and 590 to form Union No. 1290 the International Union and Local No. 1290 and the members of each and all of them, “acting under the authority and obligations set out in the constitution and bylaivs and general rules of said organizations, assumed and agreed to pay the obligations of the local unions consolidated and merged into local union No. 1290. That the membership of said organizations are bound by the constitution, bylaws and general rules of said organizations and became obligated by virtue thereof for the acts of the 'officers and committees of said organization. That pursuant to said consolidation and merger, said local union No. 1290 did take over the assets of local unions 570 and 590, and has paid some of the obligations and liabilities existing against said locals 570 and 590.” That under the constitution of the local unions the business representative shall receive as compensation such sum as is established by the local prior to his election or appointment, and the president, secretary-treasurer and recording and corresponding secretary shall pay such compensation so fixed. “That every member is charged with obedience to the laws of the local.” That the constitution, bylaws and general rules governing local unions 570 and 590 were identical with those of Local No. 1290, all of which are prescribed by the International Union. That until recently it has been the practice of Local Union No. 1290, and of the members thereof, to permit the secretary-treasurer to control the moneys paid into the organization without requiring the same to be kept in a bank or other public depository. That the secretary-treasurer has not kept accurate and complete books or records, and inquiry is being directed into that matter. That because of this condition plaintiff, believes if the moneys now on deposit in the bank, which have been restrained by plaintiff, are released the defendants would remove or dispose of the .same, and any judgment rendered herein would be ineffectual; hence, that the payment of said money to defendant should be restrained by the court. The prayer was for judgment against the defendants, and each of them, for $1,840, with interest and costs, and that the court restrain the payment to defendant of this sum until'the final disposition of the suit. The provisions of the constitution and general rules of the International Union and the similar document of Local No. 1290, attached as exhibits and by reference made a part of the petition, govern the rights of the parties to a large extent, notwithstanding some allegations of the petition in conflict with them. Those of the International Union show it is a voluntary association rather than a “corporation duly organized and existing under and by virtue of law,” as alleged in the petition. We find no provision in either of them for the consolidation of locals. The constitution of Local No. 1290 recites that it “is created by charter from the” International Union and makes no mention of local No. 570 or No. 590, and says nothing about being a consolidation or merger of them. A local may surrender its charter unless ten of its'members object, and the charter of a local may be forfeited by the International Union for its failure to pay dues or assessments, or for other reasons deemed sufficient. It is provided that when the charter of a local is surrendered or canceled its number is assigned to the next new local organized so that the numbers of the locals will run consecutively without intermissions. A new local may be organized in a territory where one exists if members of the existing one consent thereto, or if the president of the International Union gives his approval to the formation of the new one. The constitutions both of the International Union and Local No. 1290 make' ample provision for the hearing and determination of any controversy arising between locals, or a member and a local, and the constitution of Local No. 1290 provides that any member who resorts to any court for the determination of such a controversy may be assessed the cost of such litigation and may be suspended or expelled. It is clear plaintiff had a forum within the organization to which he belonged for the settlement of the controversy he seeks to bring to the court. We find nothing in these instruments to justify the allegations of the petition that the International Union and Local No. 1290 “and the members of each and all of them, acting under the authority and obligations set out in the constitution and bylaws and general rules of said organizations, assumed and agreed to pay the obligations of the local unions consolidated and merged into Local Union No. 1290.” It is well settled in this state that where exhibits are attached and made a part of a petition the exhibits must be considered in determining the sufficiency of the petition. (See State v. School District, 34 Kan. 237, 241, 8 Pac. 208; Walburn v. Chenault, 43 Kan. 352, 23 Pac. 657.) And where a reply was filed it was said, in Krehbiel v. Voth, 140 Kan. 594, 597, 37 P. 2d 1022: “The pleadings must all be considered together, the reply as well as the petition and the exhibit thereto attached. . . .” Where the exhibit contains provisions contrary to those of the petition those of the exhibit are to be followed. (Sharp v. McColm, 79 Kan. 772, 101 Pac. 659.) In Board of Education v. Shaw, 15 Kan. 33, it was held that allegations in a pleading denying the legal import of a written contract, set out or attached to the petition as a part of it, will not be considered by the court. Here, in considering the sufficiency of the petition as against a demurrer, we cannot give effect to allegations of the petition that the merger of locals Nos. 570 and 590 into Local No. 1290 was had in conformity to the constitution and rules of the International Union and of Local No. 1290, and that by doing so the International Union and Local No. 1290, and the members of each of them assumed and agreed to pay the obligations of locals No. 570 and No. 590, since the constitution and rhles of the International Union and of Local No. 1290 contain no provisions to that effect. Neither can we give effect to other allegations of the petition in conflict with or not supported by the exhibits. The claim of plaintiff is for unpaid salary as an officer of Local No. 590, of which he was a member. It is alleged the constitution and rules of local 590 were the same as those of Local No. 1290, copies of which are attached to and made a part of the petition. We find nothing in the constitution and rules of the International Union or of Local No. 1290 which indicates that any individual member of a local is financially liable for the salary of any of its officers, or for any oi; its other normal expenses, except as the member is required to pay fees, dues and assessments. It is not alleged in the petition that any of the individual appellants was a member of local 590 at any time. It is the general rule that an individual member of an association is not liable for any class of the debts of the association incurred either before he became a member of the association or after he ceases to be such a member. (See 7 C. J. S. 75, 76; Chastain v. Baxter, 139 Kan. 381, 31 P. 2d 21, and authorities there cited.) The demurrer of the individual appellants to the third amended petition should have been sustained. We think also the motion of the financial secretary and treasurer of Local No. 1290 to vacate and dissolve the restraining order previously issued, tying up funds of Local No. 1290, should have been sustained. It is well settled that an association of this character is without capacity to sue or to be sued in its own name in the absence of a statute authorizing such an action. We have no such statute in this state. Appellee concedes that to be the rule, but contends such an association may be sued in equity. This contention may be conceded. This is not a suit in equity, hence the rule contended for has no application. This point also was ruled in Chastain v. Baxter, supra. The petition is lacking in any allegation to the effect that any of the funds on hand at the time the restraining order was issued consisted of payments made by anyone who was a member of local 590 at the time plaintiff’s claim was incurred. In support of the ruling of the trial court appellee predicates his argument upon the allegations of his petition that the two locals, Nos. 570 and 590, were consolidated and merged into Local No. 1290 in the manner provided by the constitution and rules of the International Union and of Local No. 1290, and that the effect of this merger under such constitutions and rules was to make the International Union, Local No. 1290, and each and all of the members of each of those associations, personally liable for the obligation sought to be recovered. As we have heretofore seen, there is nothing in the constitution and rules of the International Union or of Local No. 1290 on which to base an allegation of this character or which justifies it. From what has been said it necessarily follows that the judgment of the trial court must be reversed with directions to sustain the demurrer of the individual defendants to the third amended petition and to sustain the motion of the secretary-treasurer of Local No. 1290 to vacate and dissolve the restraining order previously issued by the court tying up the funds of Local No. 1290. Tt is so ordered. Hoch, J., not participating.	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Per Curiam: This is an appeal from a judgment of the district court of Leavenworth county which denied appellant’s petition for a writ of habeas corpus to be released from the state penitentiary. Appellant has filed a motion for the appointment of an attorney to represent him in this appeal, which necessitates our examination of the record he has presented for our review. This record shows that defendant is incarcerated in the penitentiary pursuant to a conviction and sentence to a term of imprisonment of not less than twenty nor more than forty years for the crime against nature which is a felony carrying a penalty of not more than ten years’ imprisonment. (G. S. 1935, 21-907.) That cause was tried before a jury in the district court of Sedgwick county, which had jurisdiction of the cause and of the defendant. He was there represented by two competent lawyers; he waived arraignment and pleaded not guilty, the trial proceeded regularly, and the jury returned a verdict of guilty as charged. The record also shows that before sentencing defendant pursuant to the verdict of guilty it was properly shown to the court that theretofore on June 3, 1931, appellant had been convicted and sentenced to a ten years’ term of imprisonment for the felonious crime of forgery in the second degree, and was paroled the same day. It was also shown that in the district court of Sedgwick county, appellant had theretofore been convicted and sentenced to a term of ten to twenty-one years for the crime of robbery in the first degree. On this showing that defendant was an habitual criminal, the court imposed the sentence of twenty to forty years in the penitentiary. Apparently this sentence was imposed pursuant to the amendment to the habitual criminal statute of 1939 (G. S. 1941 Supp. 21-107a), but we are not required to decide whether under that amendment the length of the term twenty to forty years was correctly calculated or not, for the reason that the record shows the crime for which he was last prosecuted and convicted and for which he is now imprisoned was committed before the amendment of 1939 took effect; and appellant should have been sentenced to life imprisonment under the habitual criminal statute as it then stood. (G. S. 1935, 21-107a.) Consequently .the record merely shows that .appellant was more leniently dealt with in the district court of 'Sedgwick county than he deserved; and his application to the district court of Leavenworth county was properly denied, and there is no merit in this appeal. (In re Petty, 22 Kan. 477, syl. ¶ 3; 15 Am. Jur. 119; 25 id. 189; 76 A. L. R. Anno., Habeas Corpus, Illegal Sentence, 505.) Defendant’s motion that the court appoint an attorney to represent him is denied and the appeal is dismissed. Hoch, J., not participating.	[ -16, -22, -3, -2, 10, -96, 42, -98, 83, -15, -10, 115, -23, 86, 5, 121, 27, 109, 85, 121, -56, -73, 119, 81, -78, -13, -55, -43, 59, 95, -4, -44, 10, 48, -118, 117, 70, -128, -63, 28, -50, -123, -103, -14, -47, 0, 48, 107, 80, 15, -79, -50, -89, 42, -106, -57, 9, 41, -53, -81, -47, -71, -71, 13, 109, 22, -93, -122, -104, 39, 120, 47, -100, 17, 2, -8, 115, -106, -122, 117, 111, -71, -84, 102, 98, 33, 29, -17, -88, -119, 14, -2, -115, -89, -104, 16, 106, 36, -106, -99, 101, 20, 38, 124, -28, -124, 61, 108, -123, -50, -76, -77, -49, 124, -122, -45, -21, 37, -80, 113, -57, -26, 88, -9, 113, -69, -114, -108 ]
The opinion of the court was delivered by Dawson, C. J.: This is an original proceeding in habeas corpus. Petitioner alleges that on November 25, 1937, he was arrested in Emporia (Lyon county) on the request of authorities in Reno county, and returned to the latter county on a warrant charging him with forgery in the second degree. Thereafter, on December 11, 1937, petitioner was brought into the Reno county district court where the following proceedings were had as shown by the journal entry, sentence and commitment, pursuant to which petitioner is presently incarcerated in the state penitentiary: “In the District Court of Reno County, Kansas State of Kansas, Plaintiff, vs. No. 3,882 Edward Abies, Defendant. JOURNAL ENTRY, SENTENCE AND COMMITMENT “Be It Remembered, That on this 11th day of December, 1937, the same being an adjourned day of the September, 1937, term of said court, this cause came on regularly for trial, plaintiff present by Wesley E. Brown, county attorney, and defendant present in person and by his attorney, [None]. The case being called for trial, both parties announced themselves ready. “Thereupon, The defendant being duly arraigned, enters his plea of guilty to the charge of second-degree forgery as charged in the information filed in this case, and as defined by section 21-608 of the Revised Statutes of Kansas for 1935. Thereupon, the defendant is asked by the court if he has any legal cause to show why sentence and judgment of the court should not be pronounced against him, and replying in the negative the court finds the defendant, Edward Abies, guilty of second-degree forgery, as charged in the information filed in this case and as defined in section 21-608 of the Revised Statutes of Kansas for 1935. Thereupon the court being advised by competent evidence of three prior felony convictions of the defendant herein. Wherefore, the court finds defendant shall be sentenced under the habitual criminal act. “It is Therefore, by the court, decreed, ordered and adjudged that the said defendant, Edward Abies, be confined in the Kansas State Penitentiary, located at Lansing, Kan., until discharged therefrom as by law provided, and that he pay the costs of this action, taxed at $13.20. “The sheriff of Reno county, Kansas, is hereby ordered to take the said defendant, Edward Abies, and deliver him to the warden of the'Kansas State Penitentiary, located at Lansing, Kansas, and to be confined therein for a term of life or until discharged therefrom according to law. o. k. J. G. Somers, Judge of the Ninth Judicial District.” On January 24, 1942, petitioner filed in this court a typewritten paper of ten pages, which he designated “Petitioner’s Brief,” but which we construed as sufficient to serve- as an application for a writ of habeas corpus, and directed the warden to plead thereto. Thereafter the attorney general on the warden’s behalf filed an answer and return denying the allegations of the application, alleging that petitioner was lawfully held in the. warden’s custody pursuant to the judgment and sentence of the district court of Reno county, and setting up. a copy of the Reno county judgment roll as shown above. Later, on March 7,’ 1942, petitioner filed a formal application, in substantial accord with the allegations of his brief filed on January 24. The particular grounds upon which petitioner bases his right to the writ are these: “Your petitioner alleges that the journal entry and commitment is illegal and unlawful and without lawful force for the following reasons, viz.: “(1) “The records will show that the right to counsel and appeasement of constitutional rights was flagrantly denied in violation of the 14th amendment and procured a conviction in violation of the due process of law clause therein. “(2) “The records do not show any evidence or showing of previous convictions and the court was without jurisdiction, as the enhancement of punishment was based, upon uncertified statements and not by pertinent records of said convictions and that the court has taken unlawful jurisdiction of the petitioner, in violation of said habitual act. “(3) “The records show that the defendant was unlawfully convicted for the crime of forgery, 2d degree; under section 21-608, a commitment issued for violation thereof, same being void. (Signed) Edward Abels, Petitioner per se.” Following the filing of the warden’s answer and return, petitioner filed a reply which denied generally and specifically the matters pleaded by the warden. The reply also pleaded certain conclusions of law, and argued some matters which were not included in the application for the writ. Passing Point No. 1 for the time being, as it will require a critical examination of petitioner’s evidence adduced in its support, as well as the evidence to the contrary, Point No. 2 is that the records do not show any evidence of previous convictions which would justify his being sentenced as an habitual criminal. The record of the criminal trial is not here for review. If petitioner was erroneously sentenced as an habitual criminal on insufficient evidence that error could only be corrected in the trial court or by appeal. It cannot be reached by habeas corpus in an independent proceeding. Point No. 3 seems to be a conclusion of law. The record does not show petitioner’s unlawful conviction. It merely shows that he pleaded guilty, and neither directly nor otherwise is there a challenge of the accuracy of the pertinent recitals in the journal entry of judgment. Turning now to Point No. 1, it is alleged that the record will show that petitioner’s right to counsel was flagrantly denied. But the record shows nothing of the sort. (Garrison v. Amrine, post, p. 509, syl. ¶ 2, 126 P. 2d 228.) In his brief (or application) of January 24, 1942, it is said: “Petitioner contends and shows that the petitioner never entered any plea, but asked for counsel to represent him, all of which the court replied: ‘This court does not think you need the assistance of counsel in this matter.’ ” In support of this averment petitioner submits an affidavit of one John R. Prime, who swears that he was confined to jail in Reno county at the time petitioner was similarly confined, and— “Furthermore, I, John R. Prime, was present at the trial of said Edward Abies and I personally saw and heard Edward Abies request the assistance of counsel from the district court of Reno county and saw and heard the said court deny to the said Edward Abies the service and assistance of counsel in the criminal action for which he is now confined.” Mrs. John R. Prime has made a similar affidavit touching the alleged remark of the presiding judge. Counter affidavits are submitted. The presiding judge of the district court of Reno county, who served in that capacity for twelve years, deposed, in part, thus: “This affiant, after four and one-half years have elapsed, has no personal recollection of this occasion, but he does know the procedure that was followed in every case where a plea of guilty was entered in the twelve years that he occupied the bench. “First, the defendant was asked either by the county attorney or if he failed to inquire by this affiant as judge, whether or not he had a lawyer. If the answer was in the affirmative or even qualifiedly so, that lawyer was summoned and was present during the plea and sentence. If the answer was negative, nothing was done, unless the defendant expressed a wish, however faint, that he be represented, in which case and in every such case, a lawyer was appointed by the court and proceedings were halted until that lawyer appeared, interviewed the defendant, and announced that he was ready to proceed. “In the case of recidivist, as Abies appears to be, after a plea of guilty to the crime with which he stood charged, the court was informed by the county attorney or assistant county attorney, of the prior convictions that the defendant had had. . . . “The next step after hearing the record of former convictions and after the prisoner had admitted the truth of the record was this question, asked without variation and in every case: “ ‘Have you anything to say as to why sentence should not be passed upon you.’ “Occasionally a prisoner did have something to say. Whether or not Abies had anything to say, this affiant cannot remember, but even at that stage had he intimated that he desired to consult a lawyer he would have been given that opportunity and proceedings stayed until that had been done. Again this affiant would remember had the petitioner herein made any protest against the proceedings, his treatment, the severity of the sentence about- to be imposed or anything remotely concerned with his legal rights, because again with one or two exceptions, those who did speak at that time were asking for mercy, or regretting their act, but never complaining about the treatment they had received at any time since their arrest. . . . Had the petitioner herein, Abies, asked or even intimated that he desired counsel, a lawyer would have been appointed right then, and this affiant knows that no such request nor intimation was made as no lawyer was appointed.” The deputy county attorney of Reno county who was in charge of the prosecution at petitioner’s trial in Reno county makes an affidavit that on November 26, 1937, in the office of the county attorney, the petitioner made a voluntary sworn statement before a notary, in the presence of the affiant, the county attorney and one J. Richards Hunter, touching the criminal offense to which he later pleaded guilty on December 11, and that— “Affiant further states that he has no recollection of the said Edward Abies requesting this affiant, or any other officer, for.counsel, and verily believes that no request for counsel was ever made.” Petitioner’s voluntary sworn statement is submitted as an exhibit in the warden’s answer and return. In brief it recites that petitioner was twenty-eight years old (in 1937), that he had previously been in trouble with the law. Excerpts from that statement read: “Q. What’s your record? A. I have been in the penitentiary three times. “Q. Where? A. Michigan. “Q. What for? A. Michigan for larceny of an automobile. “Q. Where in Missouri? A. Jefferson City. “Q. What was that for? A. Supposed to be trying to haul away a safe. “Q. Did they convict you for that? A. Yes, sir. “Q. What in Oklahoma? A. For attempted burglary. “Q. Were you incarcerated at McAlester or Grant? A. McAlester. “Q. How long did you have to serve down there? A. A year. “Q. How long did you serve in Michigan? A. Five years. “Q. And about three or four years in Missouri? A. Twenty-one months down there.” The statement goes at length into details of admitted thefts, pilferings, burglaries and forgeries in which petitioner and John Prime had been engaged in Reno county shortly prior to his arrest, and out of those narrated misdeeds the state was content to carve but one criminal charge, and to which petitioner pleaded guilty. Attached, also, to the warden’s answer and return is a report of the Federal Bureau of Investigation, which shows that petitioner has heretofore served prison terms, viz.: one year in Wisconsin, some time in Colorado, three to five years in Michigan, one year in Kentucky and one year in Oklahoma, together with various other arrests on criminal charges in Illinois and elsewhere. This criminal record is competent evidence on the matter of credence to be given to the petitioner’s allegation in his application that the presiding judge said, “This court does not think you need the assistance of counsel in this matter.” The question whether petitioner was denied the assistance of counsel in his criminal trial in Reno county is one of disputed fact, and the burden of proof is on the petitioner. We do not think petitioner has sustained that burden. His own testimony is entitled to no credence, in view of the indisputable fact that for years he has pursued a career of crime in keep ing with his character. Touching the affidavit of John R. Prime, his affidavit says he was in jail about the time of petitioner’s trial—and by the inferences fairly deducible from petitioner’s sworn statement Prime was measurably associated with petitioner in the latt-er’s series of crimes in Reno county which culminated in his arrest and prosecution in the autumn of 1937. We attach no credence to Prime’s affidavit. And as to Mrs. Prime’s affidavit, we think that under all the circumstances, and including the affidavits of the district judge and the deputy county attorney, it is not entitled to such weight and credence as to maintain the burden of proof which rested on the petitioner. In petitioner’s reply brief he urged various matters which, if at all meritorious, could only have been redressed by appeal. As we have often said, habeas corpus is not a substitute for an appeal. It follows that petitioner is not entitled to be released from imprisonment, and judgment is therefore entered in the warden’s behalf.	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The opinion of the court was delivered by Harvey, J.; This was an action in ejectment for the possession of a tract of land claimed by plaintiff as a part of the railroad right of way. A trial by jury resulted in judgment for defendant. Plaintiff has appealed. The pleadings may be summarized as follows: In the petition, filed October 5, 1939, it is alleged that plaintiff is the duly appointed trustee of the Missouri Pacific Railroad Company and as such is the legal owner and has title to all the real property owned and held by the Missouri Pacific Railroad Company prior to his appointment as such trustee; that as such trustee he “has a legal estate in, and is entitled to the possession of” certain property, which is described, and that defendant unlawfully keeps plaintiff out of pos session of the premises. The prayer was for- judgment against defendant for the possession of the próperty and for costs. The answer admitted plaintiff’s capacity as trustee of the railroad company, but specifically denied that as such trustee plaintiff has a legal estate, in, and is entitled to possession' of the property described; admitted defendant owns a frame' warehouse, but denied that it is located on any property which the plaintiff, as trustee, has a legal estate in, and- denied plaintiff is entitled to possession of any real estate upon which defendant’s warehouse is located. The answer further alleged that on or about March 10, 1931, the railroad company entered into a written lease with defendant wherein it was agreed that the railroad company would rent to the defendant a certain tract of real property for the purpose of building a warehouse thereon; that the railroad company represented to plaintiff that it' was the owner of the real property; that defendant did locate a frame warehouse thereon, and in pursuance'thereof the defendant paid unto the railroad company, or its trustee, the sum of $60 as rent, which sum defendant asked to recover from the plaintiff.- It was further' alleged that in vtriting the lease a'mutual mistake was made in describing the property; that the lease was intended to describe the tract upon which the warehouse was constructed, and should be reformed-in that respect. Without waiving other allegations of the answer it was further alleged that-defendant had been in the open, actual, notorious, exclusive and adverse possession of the real estate upon which the warehouse was constructed for more than fifteen years. The prayer'was that defendant recover his costs and the $60 he had paid under the lease, and in the alternative, if the court should find for plaintiff, defendant be permitted to remove the warehouse. Á copy of the lease was attached to the answer. Plaintiff’s reply ■ contained a general demurrer to-the answer, also a general denial of matters not specifically admitted; admitted executing the lease to- plaintiff March 10, 1931; that there was mutual mistake in the description of the property as contained in the lease, and joined in the request that the lease be reformed in that respect, and admitted that defendant did build the warehouse upon the tract of land described in the petition; alleged that by the terms of the lease defendant was to pay plaintiff as rent for the premises on which the warehouse was located the sum of $12 per year; that after defendant had erected the warehouse thereon he did pay such annual rent for five-years, to and including March 10, 1936; that pursuant to a provision of the lease plaintiff, on June 6,1939, served written notice on defendant that the lease would terminate in thirty days thereafter for nonpayment of rent. The prayer was that defendant be denied the relief prayed for in his answer and that plaintiff have judgment as prayed for in his petition. The pertinent portions of the opening statement of defendant’s counsel may be summarized as follows: The defendant desired to lease a piece of land from the Missouri Pacific Railroad Company on which to build a warehouse. He contacted the local agent of the railroad company and defendant set stakes where he wanted his warehouse. A little later the agent of the railroad company brought the lease to defendant, which was supposed to describe the land where defendant desired to build his warehouse, but in fact described a tract about 490 feet west. The defendant constructed the warehouse where he wanted it and paid the rent, $12 per year, from 1931 to 1936. In the latter part of 1935 defendant discovered that Bourbon county engineers were out there surveying and setting stakes near this building. He investigated and found the county had given a quitclaim deed to the land where the warehouse was located and some other land to 'one Henry Kerns. Defendant then went to plaintiff’s agent and said he would pay the rent if plaintiff showed him to his satisfaction that the company owned the land, and refused to pay further rent. “The whole question of this lawsuit is this, whether or not Mr. Hardwick is on their property or off of their property.” That in 1871 a road was laid out, known as the Iola-Humboldt road, and the then owner of the land (H. T. Wilson) conveyed to the county a strip 1,426 feet long and 100 feet wide. The present highway, U. S. 54, runs, generally, in an east-and-west direction, but the old road to which the county got a deed is to the south of the present U. S. 54. About thirteen years later (in 1884) the railroad company procured a deed extending its right of way. The deed to the railroad company started at the center of the track and measured north about 140 feet to the south line of the old Iola-Humboldt road. Defendant’s contention is that this strip is about 100 feet in width and that the building sits in the old road and not on the property of the plaintiff. Plaintiff moved for judgment upon the pleadings and the opening statement of counsel. This .motion was overruled. A written stipulation was filed reciting- the mutual mistake in the lease with respect to the description of the property and that it should be reformed so as to cover the property on which the warehouse is situated. The evidence pertained to the description in the two deeds in question, the starting points for measurement concerning which there was much uncertainty, and to surveys made at different times. In 1871 H. T. Wilson, then the owner of real property, appears to have made a deed to the county for a strip of land 100 feet wide for the location of a highway, locally known as the Iola-Humboldt road. This extended generally east and west and a short distance north of the railroad. Only a small portion of its width appears to have been used for highway travel. Some years ago the road appears to have been relocated to the north of the strip deeded and is now an improved federal and state highway, No. 54. In 1884 Calvin Huntington, who had succeeded Wilson as the owner of the land, executed a deed to the railroad company for a strip between the center of one of its tracks and the Iola-Humboldt road. This was described as being 140 feet wide, more or less. Whether that was intended to be the south edge of the tract deeded by Wilson to the county for road purposes, or to the traveled portion of the road, is not clear from the evidence. Without reciting this evidence in detail it may be said there is evidence to support the view that the strip deeded by Huntington would be only 100 feet wide if its north line was the south line of the strip Wilson previously had deeded to the county. There is other evidence tending to show that the width of this strip was 140 feet. It seems clear from the evidence there is no part of the strip deeded by Wilson to the county that is now used for highway purposes at or immediately near the location of this warehouse. The evidence with respect to the lease of the property, construction of the warehouse, and the paying of rent was substantially as shown by the pleadings and the opening statement of defendant’s counsel. The trial court held there was no evidence to sustain the claim that defendant had been in the actual, open, notorious and exclusive possession of the property for fifteen years prior to the bringing of this suit and refused to submit that question to the jury. As to that, defendant has not filed a cross-appeal. At the close of the evidence plaintiff moved to strike from the record all the evidence offered in behalf of defendant. This was overruled. Plaintiff also moved for judgment upon the pleadings, opening statement, and the evidence. This was denied. . Plaintiff’s request for certain instructions was-refused, -and he objected to some instructions. In view of our conclusion on other points it will not be necessary to examine complaints, respecting instructions. Appellant argues that defendant, as a tenant of plaintiff, is es-topped to deny plaintiff’s title, citing. Pettigrew v. Mills, 36 Kan. 745, 14 Pac. 170; Fry v. Boman, 67 Kan. 531, 73 Pac. 61; Klingbeil v. Neubauer, 110. Kan. 253, 203 Pac. 731, and authorities cited therein, 'together with general texts on landlord and tenant to the same effect. Counsel for appellee say they have no quarrel with plaintiff’s general statement that a - tenant cannot deny the landlord’s title, but point out there are some exceptions to this general rule which are just as effective as the rule itself. One of the exceptions is where a tenant does not go into possession under the lease. (Ireton v. Ireton, 59 Kan. 92, 53 Pac. 74.) There is no room for the application of that doctrine here. Plaintiff wanted to build his warehouse on the railroad right of way,- went to the agent, together they looked -. over the ground, and staked it out. The lease was drawn, he constructed the warehouse where he wanted it, which he'understood at that time was on the right of way of the railroad company, and which the railroad company was claiming as a part of its right of way; hence, it cannot be said that he did not go into possession of this property under the lease. His allegation that previously he -had been in possession of the property was found by the trial court to have so little evidence to support it that it could not be sustained. Appelleé cites 18 Am. Jur. 33 to the effect -that a lessor having no interest, title, possession, or right of possession, cannot make a valid lease, and the doctrine of estoppel is inapplicable. But this hardly can be the situation here. Plaintiff certainly had an interest and as much possession as railroads normally have of an unfenced right, of way. More than that, there is authority to the effect that it-is no objection to the estoppel that the landlord had no title at -the time the relationship- was created. (35 C. J. 1231.) In fact, so long as the title of the landlord is the same as it was when the-tenancy was created, and the tenant is not disturbed in his possession, it is immaterial whether the title of the landlord is a valid one. (35 C. J. 1232.) In Ellsworth v. Eslic, 91 Kan. 287, 292, 137 Pac. 973, it was said: “But so long as the landlord’s title remains as it was when the tenancy was created, the tenant is not permitted to open the door to confusion and fraud by disputing it. (Forbes v. Caldwell, 39 Kan. 14, 17 Pac. 478.)” Appellee says plaintiff did not plead estoppel. He did plead the facts which constituted estoppel. It is not material that he did not use that word in the pleadings. Moreover, we notice the lease in question, among other provisions, contains the following: “Lessee agrees: . . .(b) to waive all right to question the validity of this lease or any of the terms or provisions hereof, or the right or power of the carrier to execute and enforce the same, ...” Hence, appellee was estopped to question the right of the railroad company to execute this lease by the terms of the lease as well as by the law applicable thereto. This point was quite clearly brought out in the pleadings and in the opening statement. We think it was error for the court not to sustain plaintiff’s motion for judgment made at that time. While other questions argued in the case might be discussed, we find no reason for doing so. Since defendant prayed in the alternative to have the right to remove his building in the event judgment went against him for possession, and since in the brief and oral argument of plaintiff in this court defendant’s permission to remove the building is consented to, his right to do so should be embodied in the judgment. The judgment of the court below is reversed with directions to render judgment for the plaintiff for the possession of the property, with permission for defendant to remove the warehouse., It is so ordered.	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'The opinion of the court was delivered by Dawson, C. J.: This was an action to cancel a deed to a house and two lots in Kinsley and for an adjudication that plaintiff was ■the owner of an undivided half interest in the property, and for .judgment against defendant for half the rental proceeds thereof. Plaintiff’s petition pleaded the facts touching the origin of his title, and the alleged fraud which was perpetrated on him which induced him to part with his title, and concluded with a prayer for judgment. Defendant moved to strike out some matters from plaintiff’s petition and demurred to the remainder. The motion was sustained and the demurrer overruled. The cause is brought here so that these rulings may be reviewed. To determine their propriety the allegations of the petition must be .summarized at some length. The petition alleged that plaintiff Frank Denning and defendant Mary Denning were formerly married to each other. Two children, a daughter Cora and a son Edward, were born to them. Many years ago plaintiff and defendant were divorced. The daughter Cora grew up and married one Harvey Lancaster, but they too were divorced; and in the decree Cora was given a house and two lots in Kinsley. Afterwards in 1932 Cora was severely burned and died intestate. She left no living issue, and the present litigants were her only heirs. Her estate was probated and the Kinsley property passed to plaintiff and defendant share and share alike. Edward Denning, son of these litigants, grew up, married and had two children, became a drunkard, and had domestic trouble with his family. He had been educated for the law but ceased to practice it ■on account of his dissolute habits. The plaintiff had been a Russian immigrant and could not read English. He grieved about the dissolute character of his son, and hoped to see him reestablish himself in the profession for which he had been educated, and to see him resume proper relations with his family. Taking advantage of his father’s solicitude for his reformation, Edward Denning called on his father on March 7, 1935, and stated to him that his mother, defendant herein, had conveyed to him her undivided half-interest in the Kinsley property, and Edward requested his father to do likewise— “And stated to the plaintiff that if the plaintiff would so do he, the said Edward Denning, would reestablish his marital relations with his wife, would in the future move to the city of Kinsley, and to such property; that he would cease his carousing and drinking and that he would again enter the practice of law and conduct himself in a proper manner.” It was also alleged that at the same time Edward produced an instrument, representing to plaintiff that it was a deed signed by his mother for her interest in the Kinsley property and requested his father to sign it, representing that the purpose of the instrument was to obtain a home and for the purpose of reestablishing himself as a lawyer and to enable him to resume proper domestic relations with his family. Relying on his son’s representations as to the character and purpose of the instrument, plaintiff signed and delivered it to his son. It was in fact a warranty deed from Mary Denning, single, and Frank Denning, single, dated March 7, 1935, consideration one dollar, conveying the Kinsley property to one Forest Fullerton. The grantee was an employee of Mary Denning. Four days later Fullerton conveyed the property by warranty deed to Mary Denning. The ■deeds from plaintiff to Fullerton and from Fullerton to defendant were filed for record in the office of the register of deeds on March 15, 1935. The petition also alleged— “Plaintiff further states that thereafter and on or about November 1, 1940, he for the first time was informed and discovered that said deed had not been made to Edward Denning, but had been made to the said Forest Fullerton and in turn made by the said Forest Fullerton to the defendant herein.” That part of plaintiff’s petition which was stricken out on order of court was the language set out above as a direct quotation in our summarized version of it. Elsewhere in the petition, however, were allegations to the same effect as the stricken matter. In assigning error on the overruling of defendant’s demurrer to plaintiff’s petition it is first argued that the alleged fraud was without damage or injury to plaintiff, that plaintiff made a gift of his interest in the Kinsley property to his son .Edward and was not to receive any consideration therefor, and that it was immaterial that the name of a stranger as grantee was inserted in the deed. We cannot assent to this contention. It was not alleged that the deed was to evidence a gift of realty from father to son. On the contrary, the petition alleged a good consideration for the deed— his son’s representations of his existing intentions to quit drinking: and carousing, to be reconciled to his family, to reestablish a home for himself and them, and to reenter his profession. Such a consideration for the deed would have been sufficient even if there had' been no such intimate relationship between grantor' and grantee as. that of father and son; and the son’s representations, which were relied on by the father and which the pleaded facts clearly showed, that the son had no intention of performing, constituted actionable fraud. In El Dorado Nat’l Bank v. Eikmeier, 133 Kan. 412, 300 Pac. 1085, it was said: “A promise to do something in the future, by which the promisor obtained something of value, if the promisor had no intention of performing his promise-at the time he made it, amounts to deceit and actionable fraud.” (Syl. U 3.) See, also, Richardson v. Simpson, 88 Kan. 684, 688 and citations, 129 Pac. 1128; First National Bank v. Mense, 135 Kan. 143, 10 P. 2d 19; Blankinship v. Porter, 142 Kan. 284, 47 P. 2d 72; also AnnoFraud-Futurity, 51 A. L. R. 46, 85, 104; 68 id., 635 et seq.; 91 id., 1296 et seq. But what shall we say as to broader objections to plaintiff’s petition that conceding the fraudulent duplicity which the son practiced, on the father, the petition fails to state -facts which would toll the-statute of limitations or surmount the bar of laches before this action, was begun? The only fact plaintiff alleged that he did not know until November 1, 1940, about the fraud perpetrated on him was that the deed he had signed had been made to Forest Fullerton and not to his own. son Edward Denning. But the petition has no allegation of want-of knowledge for that length of time that the son’s false representations as to his intentions had been broken as soon as made or within a reasonable time after they were made. The very nature of the consideration for which plaintiff parted with his title—the son’s intended abandonment of his dissolute life, his intended reconciliation with his family, and his intended reentry into his profession— implied that performance of those stated intentions should be begun, at once and completed within a reasonable time. The insertion of the name of the stranger Forest Fullerton in the deed was indisputable evidence that-the son’s avowed purposes in getting his father to execute the deed were abandoned as soon as made. In this view of the petition it is immaterial that plaintiff did not learn until November 1,1940, that the deed he had made was to Forest Fullerton. Plaintiff did not plead that he did not know or learn of his son’s broken promises and repudiated intentions to reform his habits and reorder his life until November 1, 1940! And so, in the opinion of a majority of this court the petition not only failed to plead facts which would toll the statute of limitations (G. S. 1935, 60-306, sub-sec. 3) but affirmatively did plead facts which showed that the bar of the statute and the equitable doctrine of laches did apply. Consequently defendant’s demurrer to plaintiff’s petition should have been sustained. The judgment is reversed. Hoch, J., not participating. Allen, J., dissents.	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The opinion of the court was delivered by Mason, J.: The Kansas Gas and Electric Company made application to the state public service commission for the approval of the construction of a line for the transmission of electricity upon the highways, a matter subject to regulation by the commission. (R. S. ■66-183.) A hearing of the application was enlarged by the consideration of other matters, and as a result of this on January 29, 1925, an order of the commission was made “that the Kansas Gas and Electric Company refrain from in any way interfering with the public service already maintained and established by the Kansas Utilities Company, and from in any way establishing or undertaking to establish and maintain a transmission line in the territory throughout which the Kansas Utilities Company has been authorized by this commission to operate and is now operating, and especially in Allen county, Kansas, until authorized to do so by this commission.” On February 13, 1925, the gas and electric company began an action against the commission in the district court of Shawnee county to enjoin the enforcement of the order, obtaining a temporary restraining order. On April 4, 1925, the commission in the name of the state-brought this proceeding in the supreme court seeking by mandamus to require the company to comply with the order. During the oral argument of a motion by the plaintiff for a judgment in its favor upon the pleadings the question was raised whether the proceeding is within the original jurisdiction conferred upon the supreme court by the constitution. It was the desire of both parties that the controversy should be decided upon the merits, but the court ■considers it necessary to determine first the question of its jurisdiction. The constitution provides: “The supreme court shall have original jurisdiction in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law.” (Art. 3, § 3.) This original jurisdiction cannot be enlarged by statute. (In re Burnette, 73 Kan. 609, 617, 85 Pac. 575.) If the present proceeding is not maintainable as one in mandamus as the term is used in the provision quoted the court is without jurisdiction. The legislature may of course devise any procedure it sees fit and give it the name of mandamus, but it cannot by that method or any other vest the supreme court with original jurisdiction save in quo warranto,'mandamus or habeas corpus within the meaning of these words as employed in the constitution. The code in effect defines the writ of mandamus as one issued “to .any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust, or station.” (R. S. 60-1701.) The language quoted (except that the second “any” was originally “an”) is a part of substantially the same definition, contained in the statute at the time the constitution was framed. (Laws 1859, ch 25, :§ 580.) The attitude of the courts upon the question whether mandamus may be used to prevent action has been thus summarized: “Mandamus is a remedy to compel action, while injunction is a remedy to prevent action, and while there are a limited number of cases in which the rule is apparently denied altogether, or greatly limited, it is very generally held that mandamus is not the proper remedy where the relator does not ask that defendant be compelled to do an act, but demands on the contrary that he be forbidden to do certain acts, and that mandamus cannot be made to perform the office of an injunction.” (38 C. J. 545.) Notes to this text refer to an apparent conflict in the Maryland decisions and to departures in Pennsylvania and New York from the prevailing view. In Maryland in a case where mandamus was brought to restrain persons from exercising official authority wrongfully claimed under an imvalid appointment as building commissioners, the court merely said: “It is decided by the court below that mandamus is the proper remedy, if the appellees had no authority to act in. the capacity they have assumed. In this view of the law we entirely concur.” (State, ex rel., Mayor, etc., of Balt, v. Kirkley et al., 29 Md. 85, 109 [1868].) In a recent case this language was used without further discussion or citation of authorities: “With regard to the first of these contentions it is sufficient to say, that while the purpose of the writ of mandamus is undoubtedly to require the defendant named to do a positive act, and injunction the proper remedy to prevent the doing of that act, yet in previous instances the courts have not always adhered to this distinction, and mandamus has been allowed as a preventive remedy, as well as to require the performance of a definite, specific act, and those decisions have appeared in cases upon which this court has already passed; so that this objection to the writ in the form in which it is now invoked cannot be regarded as any longer an open question in this state.” (Levering v. Supervisors of Elections, 137 Md. 281, 286 [1920].) On the other hand these expressions have been used: “Mandamus is a writ commanding the performance of some act or duty therein specified, in the performance of which the applicant for the writ is interested, or by the nonperformance of which he is aggrieved or injured. (Reg. v. Bishop of Chichester, 2 Ell. & Ell., 209.) But as. simply a preventive remedy it has never been used, so far as we have been able to discover.” (Legg et al. v. Mayor, etc., of Annapolis, 76 Md. [old No. 42] 203, 226 [1874].) “The distinction between a writ of mandamus and a writ of injunction is that the office of the former is to compel the performance of an act, while the latter is a restraining or preventive remedy.” (Hummelshime v. Hirsch, 114 Md. 39, 47 [1910], citing and quoting from Legg v. Annapolis.) The New York case cited in the Corpus Juris note holds that mandamus may be used to prevent action in exceptional cases where it is the only remedy available. (People v. Boyle, 163 N. Y. Supp. 72.) In the Pennsylvania case cited in the note it was held that the courts might by quo warranto or mandamus try whether a contract between two corporations was in excess of the power of either, and if so to give proper relief. In the opinion it was said: “This court has authority to try whether any corporation is exercising franchises or functions not granted to it, and oust it from the exercise of such . . . and it is a matter of no importance to the parties whether this authority is exercised in the common law or in the equity form, provided the right of trial by jury is not interfered with, as it cannot be in this case.” (Commonwealth v. Delaware & Hudson Canal Co., 43 Pa. St. 295, 300.) None of these cases involved the question whether mandamus may be used to restrain action, in the aspect in which it arises here. Where the question is merely one of orderly procedure, distinctions as to forms of action may well be ignored where no substantial rights will thereby suffer. This court has said, in an action for a mandatory injunction: “Assuming that mandamus might have been resorted to, we do not regard this fact as presenting any obstacle to the merits of the controversy being determined in the present action. The difference in the procedure lies chiefly in the names given to process issued. Every right of the defendants can be as well protected in an equitable suit as if a special proceeding had been brought.” (Bissey v. City of Marion, 104 Kan. 311, 314.) But the question now before us is one of jurisdiction. If the term mandamus, as used in the constitution, applies only to a proceeding to require the performance of an act and not to one to prevent action, this court has no power judicially to pass upon the merits of the plaintiffs application. And the court holds that to be the case. It is true the purpose of the order here sought may be described as being to require.the gas and electric company to obey the order of the public service commission, but we are asked to compel such obedience by forbidding the company to extend its operations into certain territory. The difference between commanding and forbidding action is substantial. If the essential quality of a prohibition against a line of conduct could be altered by describing it as a command to refrain therefrom, any injunction against violations of a duty resulting from an office, trust or station could be sought by original proceedings brought in this court under the name of mandamus. The request has been made, if the court shall conclude it is without jurisdiction as the matter now stands, that it render a declaratory judgment passing upon the issues of law presented. A proceeding under the declaratory judgment act (R. S. 60-3127 to 60-3132) can be originally brought in this court only where the con troversy on which it is based is of such character that if it had reached a stage warranting consequential relief, the relief could be obtained through an original proceeding in this court — that is, by quo warranto, mandamus or habeas corpus. The proceeding is dismissed.	[ -76, 104, -15, -34, 10, -32, 48, -112, 126, -79, -27, 83, -83, -38, -124, 122, -37, 121, 118, 123, -11, -106, 7, -55, -46, -13, -111, -35, -78, 95, -10, -50, 72, 96, 74, -43, 70, 66, -57, -100, -114, 6, -119, -32, 65, -128, -76, 105, 18, 11, 81, 47, -13, 42, 89, -61, -24, 44, -39, -20, 25, -8, -102, -123, 127, 22, 33, -89, -112, 7, 100, 62, -104, 121, 40, -20, 115, -90, -126, 118, 11, -71, -88, -94, 99, 1, 12, -17, -84, -72, 30, -100, -97, -90, -110, 56, 107, 0, -106, -71, 101, 22, -121, 116, -25, 5, 86, 108, 1, -114, -96, -29, 13, 125, -102, 20, -29, -90, 32, 100, -52, -78, 95, 71, 114, 27, -114, -68 ]
The opinion of the court was delivered by Johnston, C. J.: This appeal arose out of rulings of the court denying a motion to confirm a sale of real estate and upon another to set the sale aside. The sale was set aside and the judgment creditor, the Solomon National Bank, appeals. It appears that the bank obtained a judgment against Lester Birch and Dallas U. Birch on June 23, 1922. Several executions were issued on the judgment, on which returns were made that no property could be found upon which to levy. Finally on May 11, 1925, one was issued which was levied on the undivided interests of Lester Birch and Dallas U. Birch on a tract of land owned by their father when he died in 1909. A sale was made of these interests to the bank for $1,000, subject to a certain mortgage on the land, and the proceedings had on the execution are conceded to have been regular in every respect. When the motion was made to confirm the sale, Lester and Dallas U. Birch, who will be referred to as defendants, moved to set it aside on the ground that the land was the homestead of the defendants, and had been for more than ten years before the judgment was rendered, and had continued to be their homestead until the time the motion was filed. Upon testimony produced the court found that after the death of the owner, William Birch, the land had been occupied by the widow, Clara T. Birch, and the three children of the intestate, as their home and had never been abandoned as their homestead by any of them except Stella, who left the home when she was married. As to Lester it was found that he had always occupied the premises as his home, until he conveyed his interest to his mother, in December, 1923, at which time' he rented the land and has continued to reside there. It was further found that Dallas U. Birch conveyed his interest to his mother subject to the mortgage of $3,000 on the entire farm, which had been renewed with the addition to it of the proceeds of a $2,500 mortgage, which was used by the defendants, Lester and Dallas U-> and which they agreed to pay out of their interest, but the latter sum has never been paid. Upon the sole ground that the farm was the homestead of the defendants the court set aside the sale. The testimony touching the homestead feature was that William Birch died intestate in 1909. Prior to his death his wife and three children lived in the home with him, and it appears that all of them reached majority long before the judgment was rendered. At the time of the trial Dallas U. was forty-two years of age, Stella thirty-three, and Lester thirty. Upon the father’s death the title of one-half of the farm descended to the widow and one-sixth of it to each of the children. While it was subject to partition for many years, it had never been divided among the heirs. The widow has lived on the farm since the death of her husband, and although absent from home about three years while working for others, it was shown that she had no intention of relinquishing her homestead. When Stella married she left the farm, and neither she nor her mother has intervened in this litigation as to the sale of the interests of the defendants. There was testimony that Lester had lived all his life on the farm, that he was married in 1915, and has two children, and had occupied a part of the residence ever since his marriage. After the rendition of the judgment and in 1923, he and Dallas executed a conveyance to their mother, and after that time Lester obtained a lease of the farm and has continued to reside there. Dallas U., who was over forty-two years of age at the time of the hearing,, is unmarried, and his testimony has not been taken, as he has been in California for two years. There was testimony that before going to California he came home off and on, and had some personal effects in a room of the home, consisting of clothing, pictures and some furniture, and that he always spoke of that place as his home. It is contended by the bank that the proceedings on the execution being regular, the court was required to confirm the sale. Any person interested in the property sold may move to set the sale aside at any time before confirmation. (White-Crow v. White-Wing, 3 Kan. 276.) On a motion to set it aside the court has a reasonable discretion, and if it is made to appear that there are equitable grounds for setting the sale aside, it may be done although the proceedings under the execution' are absolutely regular. If the land levied on and sold was exempt and not subject to sale, equitable grounds existed for setting the sale aside. (Robinson v. Kennedy, 93 Kan. 514, 144 Pac. 1002; Insurance Co. v. Stegink, 106 Kan. 730, 189 Pac. 925; Pool v. Gates, 119 Kan. 621, 240 Pac. 580, and cases cited.) The court was warranted in considering equitable as well as legal grounds, and could set aside the sale if it was determined that it was inequitable to confirm it. It would be inequitable to confirm a sale of property not subject to sale, and the court would have been warranted in the action taken if the-interests sold were in fact'exempt from sale on execution.- The question-then arises, were the'interests in' land held by the defendants exempt from sale on the ground that the property was their homestead? They inherited and held undivided interests in the farm. A judgment was rendered against them during their ownership of these interests. No question is raised as to the validity of the judgment, and it necessarily became a lien on their interests and they could be sold to satisfy the judgment unless they were exempt. They claim that the farm was the homestead of their father and his family; that they were and have continued to be members of that family, and having resided on the farm their homestead rights-persisted although the farm has been subject to partition for many years, and although one of the defendants has become the head of another family, and the other is a middle-aged man who has left a few of his effects in a room of his father’s home. They claim that their shares are not only exempt from sale for debts of the head of the family, but also from their own debts contracted long after his death. The general purpose of a homestead exemption is that upon the death of the owner a certain share of his property shall be exempt from his debts to his surviving spouse and minor children who constituted his family. The central idea of an exemption to the family is that of dependence upon the head of the family, the dependence of persons who are under his roof and control and to whom he furnishes shelter and protection because of some legal or moral obligation to them. Express provisions of statute may of course limit or extend the membership of a family, but the element of dependency enters largely into what is called the family relation, and that relation must exist in order that the exemption may apply. (Elliot v. Thomas, 161 Mo. App. 441.) In many of the states it is held that adult children cannot claim the benefits of the homestead. (29 C. J. 1004.) These rulings depend in part on statutes defining exemptions. In our state the homestead benefits have been extended to an adult daughter who was and had remained a member of the family as it existed in the lifetime of the father,and mother. (Koehler v. Gray, 102 Kan. 878, 172 Pac. 25.) The exemption there awarded to the adult unmarried daughter was from a sale of the home for the debts of her intestate father. The exemption has been applied to the debts of the spouse of the deceased homesteader as well as to his debts. (Weaver v. Bank, 76 Kan. 540, 94 Pac. 273.) There is a reason, however, for this extension of benefits because of the oneness of the husband and wife, and that each of them share in the control and management of the children of the family, but the exemption has never been extended to the property of adult children from sale for the payment of their own debts. It is unreasonable to think that it was within the intention of the lawmakers that the property of a deceased homesteader which descended to adult children should be exempt from sale for the payment of their own debts because they still lived on what was once the homestead of the decease’d father. On the theory'of defendants they can carry on business until they are four-score years old and claim exemptions against their own debts as members of the family of their father, who died a half century before. Dallas had reached majority several years before his father died and has long been engaged in business for himself. There is no element of dependency on which to found a family relation, .but even if he could be considered a member of the family he is not entitled to immunity from the payment of his own debts. When their father died the title to one-sixth of the land instantly vested in each of the defendants. Neither of them was entitled to claim exemption of the shares so acquired from sale for the payment of his own debt. Lester who was married more than ten years ago and has been the head of another family since that time, is seeking shelter under the homestead right of his parents. From some of the evidence it appears that he and his brother have conveyed their interest to their mother since the judgment was rendered, and that she has leased the farm to Lester. He is not claiming a homestead, however, on the'leasehold. Nothing appears as to whether he was a mere cropper, holding from year 'to year, or by mere sufferance. Apparently the court held that he was entitled to exemption because he had been a member of his father’s family, and had resided on the farm continuously. The question of a homestead under a leasehold was not submitted to or determined by the court. Besides, the general rule is that a claimant is not entitled to two homesteads at the same time. It is said that the mother is entitled to a homestead light in the entire farm, but she was not a party to the proceeding and the question of her right is not before us. Whether the bank by the sale takes the interest of defendants subject to her right of occupancy cannot-be determined on this appeal. - It is clear-that the defendants were not entitled to an exemption of their interests in the land from sale for their own debts, and it must be held that the court erred in setting aside the sale and in refusing confirmation of- it. -' The judgment is therefore reversed and the cause remanded for further- proceedings.	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The opinion of the court was delivered by Johnston, C. J.; This was an action by L. E. Douglass to recover $5,000 from the Midland Oil Company on a drilling contract, and also against J. M. Brown and O. L. Cully, who had guaranteed payment for the drilling as it progressed. A judgment was recovered by plaintiff against Cully, and he appeals. A number of persons became interested in a tract of land in which it was hoped to find oil or gas, and some of them had procured a lease of the tract. It was arranged that they should form a corporation, turn in the lease in payment of a block of stock, sell additional stock to others, and thus procure funds with which to develop the lease. Before the organization of the corporation was completed and the charter was obtained it was arranged that development should begin, and Douglass, the plaintiff, was asked to undertake the drilling of the‘well on the lease. A contract was prepared which pro vided that Douglass should drill a well, which was to be spudded in on October 8,1924, and continued with reasonable diligence until it was performed, and he was to furnish all the necessary material, equipment and appliances and to receive as consideration, cash payment of $33,400; the company was to make a $20,000 escrow deposit in a bank that was named, before the well reached a depth of 1,500 feet, and it was agreed that the company would pay Douglass $5,000 when the well was drilled to a depth of 500 feet; $3,400 when it was drilled to 1,500 feet; and another payment of $5,000 when it was drilled to a depth of 2,500 feet. It was stipulated that in the event of oil or gas being found in paying quantities, the company should pay Douglass for the rig and casing in the well at prices that were named, and further that if he failed to properly perform his part of the contract and the company was not in default, all payments previously made should be returned to the company. In behalf of the company, the contract was signed by Emery B. Colson, as trustee, but Douglass declined to sign the contract because the corporation had not yet been organized and no stock therein had been disposed of. Accordingly the following guarantee was made. It was addressed to Douglass and is as follows: “We are writing you this letter to state that we the undersigned do hereby guarantee to you the payment of $5,000 as per your contract with the Midland Oil Company, the said $5,000 to be paid to you when you have drilled to "a depth of at least 500 feet, according to the contract as stated above. Yours very truly, J. M. Brown, O. L. Cully.” Upon the execution of this guaranty Douglass signed the contract and proceeded to drill the well, beginning within the stipulated time. He drilled to a depth of 600 feet, and in the meantime the charter for the oil company had been obtained, but the company had not disposed of its stock, and being in default of payment and Cully and Brown having failed to pay under the guaranty contract, the drilling was discontinued. The lease which had been obtained became forfeited and the company itself insolvent. This action was then begun upon the guaranty contract, and Brown having disappeared and his whereabouts unknown, no service was obtained upon him. Cully contends that the oil company was never in fact a legal corporation; that no showing was made that Cully had any relationship whatever with the oil company or that he had any interest in it, and therefore the so-called contract was without validity and the guaranty without consideration. The case was tried to a jury and findings of fact were made to the effect that Cully did not sign the contract on an agreement of Douglass that additional signatures would be obtained to it, that Douglass had no notice or knowledge that the guaranty was not to be delivered until additional signatures were obtained, and that Douglass had drilled the well to a depth of 500 feet in reliance upon the guaranty. By an objection to the admission of any evidence on the ground that the petition failed to state a cause of action against defendant and upon a demurrer to plaintiff's evidence, he raises two principal questions in the case: First, that the contract of plaintiff with the oil company was invalid for the reason that the company had no corporate existence; and second, that there was no consideration for the promise of guaranty. It was alleged in the petition, and the evidence produced tended to show, that an association of persons, including Cully, proceeded to organize a corporation designated as the Midland Oil Company, that a charter was applied for and obtained and an application made to state authorities for permission to sell the securities issued by the company. Leases had been secured and the contract for drilling was made which was signed by one of the association as trustee for the company. While the incorporation had not been fully completed, officers had been chosen, the interests of the parties in the company were determined, the leases were turned in as assets of the company on a basis agreed upon and for which shares of stock to specified persons were to be issued and delivered. It therefore appears that the association had the essential elements of a de facto corporation, the existence of which could not be collaterally attacked, and the fact that it was subject to attack by the state in a direct proceeding of ouster could not operate to relieve the company from liability upon a contract. It has been held in effect that a de facto corporation has the same capacity as a de jure one to enter into contracts, and that proof of a de facto corporate existence is sufficient where the validity of a contract by a body of men claiming to be a corporation is in issue. (C., K. & W. Rid. Co. v. Comm’rs of Stafford County, 36 Kan. 121, 12 Pac. 593. See, also, Pape v. Capitol Bank, 20 Kan. 440; Reisner v. Strong, 24 Kan. 410; A. T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, 6 Pac. 281; In re Short, 47 Kan. 250, 27 Pac. 1005; Levitt v. Wilson, 72 Kan. 160, 83 Pac. 397; 1 Fletcher on Corporations, 530, 531, 628.) Aside from this feature of the case Cully was one of the promoters of the project, had an interest in the lease and also in the project, and the plaintiff had a right of action against him. In respect to the contract of guaranty plaintiff insisted that his obligation was based on the condition that the signatures of others interested in the company should be first obtained, but the findings of the jury have settled this dispute against his contention. The argument that if the corporation had no existence no contract had in fact been executed, and the guaranty must therefore fall with the contract, is answered by the fact that there was a corporation de facto and that it had the capacity to make a binding contract. Upon the question of consideration for the guaranty there is little room for contention. The guaranty was practically concurrent with the drilling contract and formed a part of a single transaction. There was sufficient consideration for the principal contract, and the guaranty having been made contemporaneously with it the consideration for the principal contract is sufficient to sustain the contract of guaranty. (Jones & Bro. Co. v. Kuhn, 34 Kan. 414, 8 Pac. 777; 28 C. J. 917; 12 R. C. L. 1077.) Objections to the admission of evidence and to instructions requested and given have been considered and found to be without merit. The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: B. C. Shafer executed two “myself” notes for $2,500 each, which were delivered to an organization in the nature of a “common law trust,” known as the Associated Mill and Elevator Company, in exchange for certificates of interest therein, called participation certificates. The notes were bought before maturity by the Farmers State Bank of Quinter. One of them was paid. The other was renewed by two notes given by Shafer to the bank, which brought this action on them against Shafer, who defended on the ground that the original note was obtained by fraudulent representation, of which the bank had knowledge at the time of its purchase. Judgment was rendered in favor of the defendant, and the plaintiff appeals. It was part of the proposed plan of the mill and .elevator company to build an elevator at Quinter, and such an elevator was built. The company having passed into the hands of a receiver, an arrangement was made by which the defendant and others similarly • situated surrendered their certificates of interest in the company in return for a conveyance of the elevator and its equipment to the bank as trustee for them. The defendant’s answer contained this language: “Said defendant does hereby release and surrender and tenders into court for the use and benefit of whomsoever may be entitled thereto, all rights, interests, property and benefits belonging to defendant as a result of the execution of said note, and said defendant hereby offers to execute such transfer, release and acquittance as the court shall direct.” In its brief the plaintiff says the first question to be determined is whether the defense is founded on the theory of rescission, as it contends, or on that of affirmance of the contract with recoupment for damages. The defendant is noncommittal on this subject, but we agree with the plaintiff that he is to be regarded as having elected to proceed as upon rescission. The language quoted from the answer. indicates this, and the court’s instructions confirm it, showing the case to have been tried on that basis. The plaintiff contends that it was necessary for the defendant, in order to defeat a judgment upon the notes, to return or offer to return to the mill and elevator company the participating certificates received from it. It is often said that restitution is a prerequisite to a judgment for rescission because he who invokes equity must do equity. Where one sued upon a note pleads fraud in its inception, asking no affirmative relief, there is room to argue that a defense is stated, it being left to the plaintiff to set out in a reply any acts relied on as constituting a waiver. Intimations seemingly of that tendency are found. (3 Williston on Contracts, § 1525; Palmer v. Frost, 86 Conn. 100; McMillan v. Gardner, 88 Kan. 279, 285, 128 Pac. 391.) The statement is sometimes made without qualification that fraud in the procurement of a note is a defense. (8 C. J. 780.) However, numerous cases hold that in an action on a contract an answer of fraud to be sufficient must allege facts necessary to a rescission or to a recoupment of damages. (8 C. J. 726.) The- present case, however, is affected by the circumstance that the action is brought by a transferee who — according to the answer and verdict — is not a holder in due course. In that situation it is said “a subsequent holder cannot avail himself of the failure to return the consideration.” (8 C. J. 727.) In the case cited in support of that text the pertinent paragraph of the syllabus reads: “A subsequent holder suing on notes claimed to have been procured by fraud could not object that the maker had not returned the property for which they were given.” In the corresponding part of the opinion it is said: “The respondent bank (the plaintiff) being neither a party to, nor interested in, the contract for the flour receivers (for which the notes sued on were given), and dealer’s appointment for the sale thereof, there is nothing in the contention that appellant must restore what he received, in order to be entitled to show that the notes in suit were fraudulently procured.” (Bank of Spearfish v. Graham, 16 S. D. 49, 57.) We need not accept in its entirety the view so expressed in order to sustain on this phase of the case the judgment here appealed from. The defendant was not deprived of his defense of fraud by the fact that the plaintiff sued him on the note before he had taken any affirmative action, either by bringing suit for rescission or by tendering to the mill and. elevator company what he held as proceeds of the transaction in which the notes were given. Nor do we think he was required, in order to avail himself of the defense of fraud, to make a tender to the company and set it out in a supplemental answer after getting leave to file such a pleading. It was shown that the bank cashier brought suit in the federal court against the mill and elevator company, the financial situation of which was then very bad, and caused a receiver to be appointed to wind up its affairs, with whom, in order to save anything for the stockholders, an adjustment was made resulting in the surrender of the original participation certificates in exchange for certificates of interest in the elevator, which was conveyed to ,the bank as trustee. The plaintiff, having purchased the notes given by the defendant to the mill and elevator company, would seem fairly to be regarded as substituted for it in its relations with him, especially as it appears no longer to have had any financial responsibility and to have been practically dissolved. The offer of the defendant in his answer to make any disposition of the rights and property held by him as a result of the transaction in which the notes were given was a sufficient protection to all concerned against his defeating the collection of the note sued on and at the same time retaining any part of the consideration for which it was given. The defendant by the terms of his answer having surrendered and tendered into court for the benefit of whomsoever was entitled thereto all the rights and property belonging to him as a result of the execution of the note, and having been freed from obligation upon the -notes sued upon on the theory of rescission, is not in a position to assert title to- an interest in the elevator, although no express order was made by the court with respect thereto. The plaintiff further contends that the defendant’s surrender of the participation certificate in exchange for an interest in the elevator property held by the bank as trustee amounted to a waiver of whatever right of rescission might previously have existed, and ended the whole controversy by a compromise. The soundness of this contention depends on whether the defendant knew of the fraud at the time the adjustment referred to was made — April 1,1922. He testified (and the verdict shows credit was given to the testimony) that he had no reason to. doubt the representations on which he gave the notes at the time he renewed them, which was October 4, 1922; that he then believed them, and that he had an investigation made in the summer or fall of 1923 for the purpose of ascertaining the truth in regard to them. The plaintiff urges that from the time spent in discussing the compromise (fixed at two hours by the bank’s cashier) the defendant must have then been fully informed of the situation. The question, however, was a fair one for the jury. The court gave an instruction submitting the issue in these words: “You are instructed that if any of the representations claimed by defendant to have been made to him were made, were false, that he relied thereon, as stated in the instructions, and by reason thereof signed the original notes, then if, thereafter he had knowledge that such representations were false and he signed any of the subsequent renewal notes or the contracts or agreements referred to in the testimony, then he could not rely upon said representations for a defense in this case, so far as any renewal notes are concerned that he signed when he had such knowledge. If the defendant was in possession of knowledge such as hereinbefore stated in this instruction and thereafter signed a contract or an agreement for the purpose of securing an adjustment of his rights with the mill company, then he could not make the defense of fraud in this case, because he would have waived the same by said acts.” Complaint-is made of the court’s refusal to instruct that if the defendant at the time of entering into the arrangement for the exchange of certificates or of giving the renewal notes “had learned sufficient facts to make a reasonably prudent man suspect that he had been defrauded in the making of the original notes herein, then it was the duty of the defendant to make an investigation by all means reasonably available, and if he failed to do this and thereafter signed the instruments above mentioned he cannot recover in this action, and your verdict should be for the plaintiff.” It is doubtful whether the evidence called for submitting the issue of the defendant having constructive knowledge of the fraud,' but in any event the instruction requested was defective in making the failure to investigate fatal to the defendant’s case whether or not the investigation would have developed the existence of the fraud. While there are situations in which a request for an instruction stating the law inaccurately may so challenge the attention of the court as to make erroneous thé omission to discuss the subject in the charge, we do not think a reversal is required by the fact that the court gave no specific instruction on this phase of the matter. A final complaint is that two of the findings of fact were not sustained by the evidence. The jury gave an affirmative answer to the fourth question — whether the plaintiff at the time it purchased the note had any actual knowledge or notice of the making of the false and fraudulent representations. The next question was: “If you answer ‘Yes’ to question No. 4, then state when, where and from whom said bank obtained such knowledge or notice.” To this the reply was made: ‘‘December 7, 1920, at Farmers State Bank, from Oliver Wylie.” The plaintiff urges that there was no evidence of Wylie’s having been at the bank at the time named, and that this finding excludes from consideration all other methods by which the bank might have acquired knowledge of the fraud. Wylie was a director of the bank and a member of the discount board. He took an active part in the-sale of the stock or interest for which the defendant gave his notes. There was evidence that the defendant was visited at his farm on December 7, 1920, by Wylie and a representative of the mill and elevator company, the two of them urging him to invest, and the representations complained of being made in the presence and with the connivance of Wylie. If the jury assumed without evidence that Wylie returned to the bank on the same day after the defendant had signed the notes, the error was not very important. The jury also found that the cashier knew of the representations and their falsity when the bank bought the notes, and that before that time the bank through him had an understanding with the company that the proceeds of the sale of such notes should be turned over to it in the form of negotiable certificates of deposit without retaining the bank funds which were required to be left therein by the terms of the contract between the bank and the company, which was shown to the defendant to induce him to give the notes. Where a jury is asked a question calling for an enumeration of all the items of a particular class, an item omitted from the answer is not thereby excluded from consideration if the omission is supplied in some other finding. (Springer v. Railroad Co., 95 Kan. 408, 148 Pac. 611; Brown v. Utilities Co., 110 Kan. 283, 203 Pac. 907.) The judgment is affirmed.	[ -16, -8, -48, 12, 10, -32, 42, -102, 80, 32, 39, 83, 105, -62, 21, 83, -10, 91, 85, 106, 86, -77, 7, 123, -46, -13, -13, -55, -79, 79, -28, -58, 76, 38, -62, 29, -26, -120, -61, 88, 78, -128, -119, -27, -7, 64, 16, 27, 80, 72, 113, -50, -13, 37, 29, -53, 105, 40, 107, 125, -16, -7, -119, 5, 125, 23, -93, 38, -52, 70, -24, 14, -100, 53, 1, -24, 118, -90, -122, -12, 107, 59, 8, 98, 98, 16, 69, -50, -100, -104, 39, -2, 13, -90, -111, 88, 10, 1, -68, -97, 124, 18, 7, -10, -18, -115, 25, 100, 1, -114, -10, -79, -113, 126, 30, -123, -21, -125, 16, 96, -52, -16, 93, 103, 123, -101, -50, -65 ]
The opinion of the court was delivered by Marshall, J.; The plaintiff sued on a health and accident insurance policy and recovered judgment, and the defendant appeals. The plaintiff’s petition alleged the issuance of the policy for a period of thirty-six months from November 1, 1922, for a premium of $100, which was paid at the time the application for a policy was signed. The application signed was for a period of thirty-six months. The plaintiff alleged that he became ill on January 26,1925, and remained ill until the liability under the policy amounted to $227; that the policy was issued and was for three years from November 1, 1922. The defendant alleged that the application was for a policy for twelve months; that the policy issued was for twelve months from November 1,1922, and expired November 1,1923. The answer further alleged that the policy, which was for three years, attached to the plaintiff’s petition, was a forgery and contained fraudulent alterations, and further alleged that the forgery consisted of a change in the policy so that it read for a term of thirty-six months instead of for a term of twelve months, and that the policy had been changed so as to make it recite $100 as the premium instead of $40 as was contained in the policy of insurance issued by the defendant. The action was tried to a jury, which answered special questions as follows: “1. Did G. W. Mathewson receive an application from the plaintiff for a three-year policy or for only a one-year policy? A. Three years. “2. Did the plaintiff at the time of giving his application 'to Mathewson for the policy, pay the said Mathewson as premium $100? A. Yes. “3. Did the defendant, The Union Insurance Company, learn on or about the 17th day of February, 1925, that the plaintiff,, Brodus G. Hunley, held a policy of the defendant, purporting to be for a term of three years from the 1st day of November, 1922, and that the plaintiff had paid the defendant’s agent, Mathewson, as premium thereon the sum of $100? A. Yes. “4. If you answer question No. 3 ‘Yes,’ then state whether the defendant, The Union Insurance Company, ever returned or offered to return any of the premium of $100 to the plaintiff. A. No. “5. Is the policy sued upon in this action in the same condition that it was in at the time it was delivered by G. W. Mathewson to the plaintiff? A. Yes. “6. Did the plaintiff, Brodus G. Hunley, make or cause to be made any changes or alterations or erasures in the policy sued upon in this action? A. No. “1. Did the agent, G. W. Mathewson, have any right or authority to act for and on behalf of the defendant other than take or accept applications for insurance and to remit such applications and the premiums collected on such applications to the defendant’s home office? A. Yes. “2. If you answer question Nq. 1 ‘Yes,’ then state what other or further authority the said agent, G. W. Mathewson, had to act for and on behalf of the defendant. A. To receive policies from home office and deliver to applicant. “3. Did the plaintiff on or about the 20th day of October, 1923, receive from the defendant a notice through the mail that his policy had expired and the renewal would be granted upon certain terns? A. No. “4. Did the plaintiff receive through the mail on or about the 1st day of November, 1923, a notice from the defendant’s home office advising the plaintiff of the expiration of his policy? A. No. “5. Did the plaintiff receive through the mail a notice from the defendant on or about the 5th day of November, 1923, notifying him of the expiration of his insurance policy? A. No. “6. When did the plaintiff first ascertain the knowledge from the defendant that the defendant’s contention was that the policy issued was for a period of but one year? A. February 14, 1925. “7. State the amount of the premium received and accepted by the defendant at the defendant’s home office in Wichita for the issuance of the policy in question. A. Forty dollars ($40). “8. Did the defendant at his home office receive more than $40 for the issuance of the policy in question? A. No. “9. Where was the policy of insurance which was sued on in this case executed? A. Wichita, Kan. “10. For what ‘term’ was the policy as first written? A. Twelve months. “11. Has there been a change or alteration in the ‘term’ as was first written in said policy of insurance? A. Policy introduced in evidence plainly shows erasures. “12. When was such change or alteration made — before or after it was signed and mailed from the home office of the defendant company? A. Don’t know. “13. Who changed or altered the ‘term’ as was first written? A. Don’t know.” The answers state all of the facts necessary to a correct understanding of the case. Mathewson was the agent of the defendant, not the agent of the plaintiff. In Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245, the court said: “An agent for a life insurance company whose authority is limited to negotiating for, taking and transmitting applications for the approval or rejection of the company is the agent of the company and not of a person whom he solicits to take insurance, and for those purposes he has all the power the company itself possesses.” This court has upheld judgments reforming insurance policies so as to make them correspond to the representations of the insurance agents given at the times the policies were applied for. (Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245; Hammond v. Insurance Co., 100 Kan. 582, 165 Pac. 291; Nichols v. Casualty Co., 113 Kan. 484, 214 Pac. 1111; Chambers v. North American Accident Ins. Co., 118 Kan. 494, 235 Pac. 859.) No reformation of the policy was asked in the present case because the policy delivered conformed to the terms of the application therefor. If the policy as delivered had provided for insurance for only twelve months and the plaintiff had not discovered that fact until after liability under the policy had accrued and had asked to have the policy reformed so as to recover there under, this court would have upheld a judgment reforming the policy-under the decisions which have been cited. This question is presented by the defendant in a number of different ways. It argues that the court erred in giving instructions to the jury and in refusing to give instructions requested. The defendant argues that the court erred in not compelling the jury to more specifically answer questions 12 and 13. The evidence introduced on behalf of the defendant tended to show that the changes in the policy were made after it was issued from the office of the defendant. There was no direct evidence to show when the changes were made, but the jury may not have believed the testimony of the defendant which tended to show that the changes were made after the policy.had been issued. If the jury disbelieved the evidence of the defendant on that question, there was no evidence to show that the changes had not been made before the policy was signed and mailed from the home office .of the defendant. The jury was not compelled to believe the evidence of the defendant in that respect. The application for a thirty-six months policy, the payment of the premium for the policy for that length of time, and the delivery of a policy for thirty-six months contradicted the evidence of the defendant concerning the time and place of the alteration in the policy. The judgment is affirmed.	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The opinion of the court was delivered by Dawson, J.: The plaintiff brought this action against defendants to quiet her title to six and a fraction acres of land in Rosedale. Defendants Smith and Floto filed separate answers pleading various defenses, but they were worsted in the trial court and have not appealed. Defendant Lane filed an answer and cross petition in which he alleged that plaintiff had employed him as her agent to sell the property at an agreed price and for an agreed commission of $500, and that he had effected a sale of the property to defendant Smith, and that his commission was due and unpaid, and asked judgment accordingly. • Plaintiff replied to Lane’s answer and cross petition with a pleading in the nature of demurrer for misjoinder, and admitted that she had employed Lane to sell the property, but alleged that Lane did not deal with her in good faith, that the ostensible sale effected by Lane to Smith was a sham, and that the contract of sale which she authorized and to which she intended to attach her signature specified a price of $15,000, on which $200 was to be paid at once, $2,300 on delivery of the deed, with the following express stipulation: “Buyer to give back a mortgage securing note for $12,500.00, payable on or before five years from date of delivery of deed, with interest at six per cent per annum, payable (semi)-annually.” Plaintiff signed a contract in triplicate to this effect. The clause quoted above was in typewriting on a narrow slip of paper inserted by pasting in a printed form of contract for the sale of real estate. Such were the recitals of the triplicate copy left in the possession of the plaintiff. The other two triplicates, one of which was placed in escrow, contained attached slips of paper with typewritten recitals identical with those inserted in plaintiff’s copy, but with certain additions thereto: “Buyer to give back a mortgage securing note for $12,500.00 payable on or before five years from date of delivery of deed, with interest at six per cent per annum, payable (semi)-annually. “It is a provision of this contract that if the buyer so elects he may pay $3,300 cash on delivery of deed; and in such case seller agrees to take back a mortgage securing note for $11,500, payable as above and secured by mortgage on all of the above-described property, with the exception of the following tract: Beginning at the intersection of the south fine of the San Francisco Railroad Company’s right of way and the west line of Rosedale avenue in Rosedale, Kansas, thence southwesterly along said right of way 500 feet, thence southeasterly at right angles to said right of way 90 feet, thence northeasterly parallel to said right of way to the west line of Rosedale avenue, thence north to the point of beginning.” Plaintiff and her husband testified that when the triplicates were signed the pasted slip of typewriting contained about three lines only. It was shown that all three 'copies of the contract were in defendant Lane’s exclusive control for twenty minutes while he took them away to have them signed by Smith. It was also shown in evidence that Smith was not a bona fide purchaser of the property; and that Lane induced Smith to quitclaim 'the property to Floto and caused Floto’s deed to be recorded to becloud plaintiff’s title and thus coerce her into consenting to a disposition of the property whereby the most valuable part of it — an acre strip off one side of it lying adjacent to a railway — should be conveyed to a wholesale hay company for industrial purposes for $4,000, and to constrain plaintiff to accept a mortgage on the remaining and much less valuable part as security for the balance of the purchase price. Lane’s testimony was to the effect that the execution of the contract in triplicate was straightforward and regular, that he had not changed the text of the typewritten rider. On cross-examination, however, he did admit that both Smith and Floto were straw men who were acting for him. He admitted he made, the suggestion to Smith that he convey the property to Floto, and that he had tried to get the Smith contract recorded: “Q. Not, succeeding in recording it, you then hatched a scheme of making a deed to a stranger. A. That was the fact in the case. “Q. Now just answer the question. You hatched a scheme for Smith's making a deed to an entire stranger to this contract? A. Yes, sir. “Q. And you said you would cloud Readecker’s title until — you would make him perform on that contract? A. Sure. That was to bring the contract through.” Smith, for whose production as purchaser Lane claimed the commission of $500, admitted he was a straw man, and that he never paid plaintiff $200 or any other sum, and that he “did not know who had requested him to execute a quitclaim deed to Charles U. Floto.” Floto gave him nothing for the deed, and he did not ask anything. Floto testified he had nc interest in the matter, that he acted as a straw man, and did not propose to get anything out of the transaction, and that he always “handled his straw-man work so that there would be no liability on him.” Jury trial; verdict and special findings for plaintiff; judgment accordingly; appeal. Counsel for appellant contend that there was no evidence to support the controlling special findings of the jury; and they invite this court to examine the physical evidence inherent in the triplicate copies of the contract and which are produced for our inspection. It is argued that these show beyond cavil that all three copies of the two typewritten clauses were made at one writing by the use of carbon sheets; that the punctuation, corrections, and the like, are identical and must have been made at the same time. This may be conceded. But whether the second clause was clipped off plaintiff’s copy of the contract before she signed it, whether she clipped off that clause later, whether the other two copies of the contract actually contained the attached typewritten slips with the two clauses thereon at the time plaintiff signed the contract, or whether these slips now appearing in defendants’ exhibits were attached afterwards — these were jury questions. Certain it is that either plaintiff tampered with her copy of these triplicates or somebody working in defendant’s interest tampered with the other two. It is not our function to settle that question. The evidence inherent in all the circumstances, as well as in the testimony of the litigants, was quite sufficient'to support the jury’s finding thereon, and it will have to stand. It is also contended that there was no evidence to support the jury’s finding No. 4, and that it was at variance with an admission in her reply to Lane’s answer and cross petition. We must hold otherwise. Moreover, if the fact sought to be elicited by this special question to the jury had been admitted in plaintiff’s pleading it would have been superfluous to have submitted that question to the jury. Exception is taken to the jury’s special finding that defendant altered the contract after it was signed. There was no want of evidence, in our judgment, to prove that some sort of legerdemain had been practiced by defendant or on his behalf, sufficient to support that finding. Fault is found with the lack of precision in the jury’s answer to the question whether the contract signed by plaintiff and her husband and defendant Smith contained an attached typewritten rider containing the provisions as claimed by defendant. The answer was: “Contract was signed in part.” While defendant filed a motion to set aside this and other findings, it was not objected to as indefinite, and the finding was simply the jury’s way of saying that only part of the controversial typewritten matter was attached to the contract at the time it was signed. Noting briefly other criticisms directed at the special findings, it must be held that any other answer than “No” to question No. 5 would scarcely have been correct. Moreover, the fact sought to be elicited by the question was not very material. Finding No. 6 was abundantly established. Smith did not elect to exercise the privilege of paying $3,5.00 cash down or any other sum. He was a “straw man”; the sale to him was a sham. Touching finding No. 8, ere this lawsuit was concluded it was clearly established that Lane never effected a sale of plaintiff’s property to Smith, and it was also shown beyond cavil, and indeed by Lane’s own testimony, that he did not conduct himself with that requisite fidelity to hjs principal to entitle him to his commission on a sale of the property either on the terms originally authorized by plaintiff or on any other terms satisfactory to her effected through his initiative or assistance. (Avery v. Baird, 106 Kan. 507, 188 Pac. 254; Schlesener v. Mott, 107 Kan. 41, and citations, 190 Pac. 745; Langston v. Hoyt, 108 Kan. 245, 249, 250, 194 Pac. 654; Jones v. Hall, 113 Kan. 368, 214 Pac. 521.) If Lane had been the procuring cause of a bona fide contract of sale from plaintiff to Smith, his commission would have been due and payable whether such sale was finally consummated or not (Young v. Newbold, 119 Kan. 394, 239 Pac. 1106), but even in such case Lane would have had no right to aid in coercing plaintiff to comply with her contract. Still less had he any right or excuse to “hatch a scheme” to cloud her title “to bring the contract through.” This attitude of defendant was potent evidence that he was working against the interest of his principal, and of course he was not entitled to a commission. A painstaking examination of this record discloses nothing of sufficient gravity to disturb the judgment. The judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: E. H. Maechtlen, Herman L. Tjaden and,, Christ Pflugshaupt, each brought a separate action against R. C. Clapp, Elizabeth Clapp and A. Y. Roberts, alleging that the defendants had maliciously brought a groundless civil action against the plaintiffs which had pended in the courts for about three years, and then was abandoned and dismissed. As all of the cases arose out of the same transactions and were based on the single original action alleged to have been maliciously instituted they were tried together upon the same evidence. At the end of plaintiffs’ evidence the court upon the separate demurrers of the defendants sustained that filed by Elizabeth Clapp and A. V. Roberts upon the ground that plaintiff had failed to establish a cause of action against either of them, but overruled the demurrer as to R. C. Clapp. The trial proceeded against the latter and a judgment against him in each of the cases was entered. Each of the plaintiffs has appealed from the order sustaining the demurrer of Roberts, who was the attorney of the parties who brought the original action, but no appeal was taken by plaintiffs from the ruling sustaining the demurrer filed by Elizabeth Clapp. As all of the appeals rest upon the same evidence and one record, all were briefed and submitted together. There appears to have been a number of controversies and considerable litigation between the plaintiffs and some of the defendants. In 1919 the Cumberland Refinery Corporation brought an action against The Quaker 777 Oil Company, a company in which the plaintiffs were stockholders, to recover from the oil company assets and leases, and the cancellation of deeds for the transfer of the Cumberland Refinery Corporation property to the oil company. It was charged that the transfer of the property had been accomplished by false representations and fraud. The action was brought on behalf of the corporation by the law firm of which Roberts was a member and the trial of the case resulted in favor of this client, The Cumberland Refinery Corporation. On December 28, 1920, the plaintiffs herein filed an action against the Blue Ridge Refining Company, the Cumberland Petroleum and Refining. Company, and the Cumberland Refinery Corporation, R. C. Clapp, and other members of his family. The purpose of this action was to cancel a mortgage held by the Clapp family on the refinery of the Cumberland Refinery Corporation, and for an accounting. There were charges of fraud as against the Clapps, but the validity of the mortgage was upheld. In December, 1921, J. A. Feister brought another action, in which he named the parties to the present actions as well as a number of others as defendants, the purpose of which was to foreclose certain mechanic- and mortgage-lien claims upon the refinery. Afterwards the original action which is alleged to have been maliciously instituted was begun. It was brought in the name of the Cumberland Refinery Corporation as plaintiff against the plaintiffs-and others, and the petition was prepared and signed by the firm of which the defendant, Roberts, was a member. The corporation alleged that the plaintiffs in this action with others called a meeting of the directors of the corporation in Kansas City, where they removed R. C. Clapp from the presidency and elected in his place C. C. Wadley, and that thereafter a meeting of the stockholders of the corporation was held at which the property of the corporation was sold to the Quaker 777 Oil Company; that the plaintiffs here who were directors at that time represented that the Quaker Oil Company was a going concern, owning many valuable oil and gas leases amounting to 203,000 acres; that the Quaker Oil Company had a seven-eighths interest in those leases and that the same company had a large amount of cash on hand, to wit, $75,000; and further had a contract to furnish gas to Kansas City, Kan., and Kansas City, Mo., and had the wells with which to supply gas to those cities; that they induced the stockholders to transfer to the Quaker Oil Company all the oil and gas leases held by the refinery corporation, together with its refinery near Wichita, which had almost been completed; that they represented'that the Quaker company had cash on hand to complete the refinery and develop the leases, and would issue in exchange for the property of the refinery corporation stock in the Quaker company to the extent of $429,000 in that company, and further that the stock in the Quaker company was of the par value of $429,610. It was further alleged that, based on these representations and offers, the Cumberland Refinery Corporation was induced to transfer its leases, and afterwards learned that the representations made as to the Quaker Oil Company were false and fraudulent, and through the transfer the Cumberland Refinery Corporation had lost practically all of its oil and gas leases and the use of its refinery. It was alleged that the Quaker Oil Company had no cash on hand of any consequence; that its stock was worthless, that it had no contract with Kansas City, Kan., or Kansas City, Mo., and had no wells furnishing gas sufficient to supply those cities, and that in fact its stock was worthless. It was charged in that action that the plaintiffs herein, by their fraud and negligence, had dissipated the assets of the plaintiff company, had jointly and severally wrecked the plaintiff company and made its stock of little value, and the corporation therefore asked to recover damages against them in the sum of $281,584. In the present case the plaintiffs aver that the charges of fraud so made were groundless and malicious, and had greatly damaged them in reputation and credit as well as having caused them much expense in employing counsel to prepare and make their defenses. The only defendant affected by this appeal is A. V. Roberts, who dictated and filed the petition in behalf of the corporation and its officers, the Clapps, and later had at their instance moved for a dismissal of the cause. He was in no sense a party to that action, and had no connection with it except that his firm was employed to represent the parties who brought the suit. It appears to have fallen to the lot of Roberts to prepare the pleadings, and that the parties who brought the action conferred with him more than with the other members of his firm. The mere fact that he was not a party to the action but acted in the capacity of an attorney does not of itself render him immune from a charge of malicious prosecution if, actuated by malice, he conspired with his client to “commence a groundless action, or if he knew that the client was actuated by malice and that there were no grounds for the action. An attorney who knowingly permits a client to make him an instrument in prosecuting a party against whom the client had no ground of complaint or cause of action, or was bringing the action through animosity or some malicious motive, is accountable to the party wronged as much as if the suit was. prompted by his own malice. In an early case it was said: “The rule by which attorneys may be held liable for malicious prosecutions is clearly laid down by Tindall, C. J., in Stockley v. Harnidge, 34 Eng. C.L R. 276. It was there held that if the attorneys who commenced the suit alleged to be malicious knew that there was no cause of action, and knowing this, ‘dishonestly and with some sinister view, for some purpose of their own, or for some other ill purpose which the law calls malicious, caused the plaintiff to be arrested and imprisoned,’ they were liable.” (Burnap v. Marsh et al., 13 Ill. 535, 538.) However, malice cannot be imputed to an attorney merely because his client may have been actuated by malice in procuring the bringing of a groundless suit. If he prepares pleadings and conducts the litigation in good faith without any knowledge of the fraudulent purpose of his client and that the claim was in fact groundless, an action for malicious prosecution cannot be maintained against him. Of course he must act in good faith in making inquiry as to the facts upon which an action is advised, but he is not required to view with distrust the representations of his client and start a private inquiry as to the truth of his statement or to ascertain that he is not acting with some evil motive. Unless the malice and groundless character of the cause are obvious from the facts related by his client or are otherwise brought to his attention, he may advise and act on the assumption that his client is honest and that the facts related by him .are substantially correct. In Peck v. Chouteau, 91 Mo. 138, 151, an action for malicious prosecution, it was said: “The attorney has a right to advise and act upon the facts which he gets from his client, and it is not his duty to go elsewhere for information.” Further along in the opinion it is said: “We state again that the attorney has a right to advise and count upon such information as the client reveals to him. Nothing short of complete knowledge on the part of the attorney, that the action is groundless, and that the client is acting solely through illegal or malicious motives, should make him liable in these actions. As was said by Mr. Justice Bradley in Campbell v. Brown, 2 Woods, 350: ‘If attorneys cannot act and advise freely and without constant fear of being harassed by suits and actions at law, parties could not obtain their legal rights.’ ” (p. 152.) In Bicknell v. Dorion, 33 Mass. (Pick.) 478, where an action was brought against an attorney as well as his client to recover for the malicious prosecution of the original suit alleged to have been brought without probable cause, in the opinion announced by Chief Justice Shaw it was held that: “An action cannot be maintained against an attorney at law for bringing a civil action unless he commenced it without the authority of the party in whose name it was sued, or unless there was a conspiracy between them to bring a groundless suit, the attorney knowing it to be groundless and commenced without any intention or expectation of maintaining it.” (Syl.) In Miller v. Metropolitan Life Ins. Co., 28 Ky. L. 223, where it appeared that the attorney’s only connection with the original action was as counsel, and that from the facts presented to him by his clients’ witnesses he believed there were reasonable grounds for the prosecution, and therefore advised an arrest, the court held that: “An attorney, who on the facts presented by the witnesses of his client believed there was probable cause for a third person’s arrest and prosecution for crime, and who in good faith advised the institution of the prosecution, is not liable for malicious prosecution.” Again it has been said that a lawyer “is not liable for innocently putting the law in motion in bona fide reliance on his client’s information.” (26 Cyc. 19. See, also, Liquid Carbonic Acid Mfg. Co. v. Convert, 82 Ill. App. 39; Seary v. Saxton et al., 28 Nov. Sc. 278.) The question then arises, was there proof that Roberts was actuated by malice or had knowledge that his client had no cause of action against the plaintiffs herein and was actuated by some malicious motive in procuring the commencement of the action. It devolved on them to prove the essential elements of an action for malicious prosecution, and if they failed to introduce evidence tending to establish these elements there was nothing to submit to the jury. To make a case it was necessary for them to show that the action was maliciously brought without probable cause. Both elements must concur, and whether want of probable cause was shown is primarily a question of law for the court. (A. T. & S. F. Rld. Co. v. Watson, 37 Kan. 773, 15 Pac. 877.) Assuming that Roberts’ client acted with malice and without probable cause, it was still necessary as against Roberts to show that he knew of his client’s evil intent and that the claim made was groundless. A reading of the record fails to disclose any evidence of personal malice on the part of Roberts or knowledge of evil intention on the part of his clients. If the facts related to Roberts prior to the commencement of the original suit were true, a good cause of action existed against the plaintiffs. The testimony in the record shows that Roberts believed the statements made to him by his clients and that he faithfully set these forth in the petition, and did so in the faith that they could be established by evidence. Nothing was shown that was inconsistent with good faith and an honest reliance on the facts brought to him by his clients. The evidence offered by plaintiff on this feature of the case not only shows no bad faith of Roberts nor a knowledge by him of the ground less character of the proposed action, but on the contrary it affirmatively shows that there was no malice on his part and no knowledge of an evil motive of his clients, but that he honestly acted in reliance on the statement made by his clients. On the question of malice and lack of probable cause, the plaintiffs called Roberts as their witness, and he testified that he accepted as true the facts related to him and faithfully recited them in the pleading which he'filed. According to the evidence everything done by Roberts was consistent with good faith and honesty of purpose. On this branch of the case it can be said that there was no dispute in the evidence and no evidence in fact to prove the essential elements to a recovery against Roberts. There being no dispute as to the facts in the case, no room for an inference that Roberts acted in bad faith in relying on the representations made to him by his clients with respect to probable cause, the court was justified, and in fact was duty bound, to sustain the demurrer to plaintiff’s evidence. It is argued that-too much range was given to the cross-examination of Roberts when called as a witness for plaintiff. The objection is without merit. The scope of the inquiry in the direct examination opened up the whole subject •of the knowledge of Roberts as to the probable cause and the motives •of his clients in bringing the action, and of his purpose in preparing the petition and the steps taken in the conduct of the case, so that an extensive inquiry on cross-examination was justified. Finding no error in the record the judgment is affirmed.	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The opinion of the court was delivered by Dawson, J.: This lawsuit between two farmers arose over plaintiff’s charges for pasturing defendant’s cattle during the seasons of 1921 and 1922, and involved certain items of account between the litigants. It appears that in 1921 the plaintiff, Sidney Wilson, received into his pasture a number of cattle belonging to defendant, J. B. Messer, at an agreed charge of $1.50 per head per month, or five cents per day. With these cattle were certain others which belonged to defendant’s son, Boyd Messer. As part payment therefor defendant worked for plaintiff a certain number of days and paid him a certain sum in cash. But the accounts of the litigants for that year’s business were not definitely settled and closed. In the season of 1922 plaintiff likewise furnished pasturage for defendant’s cattle, and defendant performed certain days’ work for plaintiff. Again no settlement of accounts was effected; hence this lawsuit. On October 22, 1923, plaintiff commenced this action in the district court against J. B. Messer and Boyd Messer, and on May 10, 1924, he filed his first amended petition. It contained two causes of action, in the first of which plaintiff itemized his charge for pasturage for the season of 1921, and claimed a balance due thereon of $42.05; for hay, corn, fence posts and a pump, $28.20; balance of pasture bill for 1922, $69.20; and a special item for late pasture in 1922, $30.60. On this first count plaintiff prayed judgment for $170.05. For a second cause of action plaintiff alleged that at the special instance and request of J. B. Messer, plaintiff permitted Boyd Messer to place certain cattle in his pasture during the season of 1921, at the agreed rate, which aggregated $177.10, and that defendants had .paid $100 on account and had performed labor for plaintiff of the value of $13.25, and plaintiff prayed judgment on this cause of action for the sum of $63.85. Defendant’s demurrer to the second cause of action was sustained on November 15, 1924, and plaintiff was given twenty days to amend. He did not file an amended petition, however, and on January 3, 1925, the case went to trial on the remaining first cause of action. A jury was waived, the evidence for the parties was presented, and the court took the cause under advisement. Some time later plaintiff asked and obtained leave to file a second amended petition “to conform with the evidence produced at the trial,” and on April 17, 1925, such amended petition was filed. In it items aggregating $177.10, which had constituted the second cause of action in plaintiff’s first amended petition, and which had been subjected to the trial court’s adverse ruling of November 15, 1924, on demurrer, were again incorporated in the amended petition filed April 17, 1925. On April 23, 1925, defendant J. B. Messer filed answer traversing most of plaintiff’s allegations, pleading various matters, and particularly pleading that the items aggregating $177.10 appearing in plaintiff’s second amended petition were the identical items which had been eliminated from the action by the trial court’s ruling on the demurrer more than six months before. The answer recited: “This defendant further alleges that the said defendant J. B. Messer in said action duly filed a demurrer to said second cause- of action set out in the second cause of action in the first amended petition covering said items, which demurrer was duly sustained by said court to said second cause of action in said items, which demurrer was never appealed from and is a final, full and complete adjudication between plaintiff and this defendant of these items of $177.10.” There was no further hearing of evidence after these pleadings were filed, and on May 28, 1925, the trial court entered a finding and judgment for $207.15 in favor of plaintiff. Defendant J. B. Messer appeals, assigning various errors, but particularly stressing the point that plaintiff’s claim based on the items aggregating $177.10 for pasturing Boyd Messer’s cattle, against which defendant’s demurrer had been sustained at the October term (November 15), 1924, was res judicata; and that it was error to permit them to be reincorporated into plaintiff’s amended causes of action filed more than six months thereafter and after the October, 1924, term had expired, and several months after the action had been tried, the evidence submitted and the case taken under advisement. But it is not clear that the items constituting the second cause of action which went out on demurrer were brought back by way of amendment made after the term. If they were, they would, of course, be subject to a plea of res judicata. (Brown v. Kirkbride, 19 Kan. 588; Bierer v. Fretz, 37 Kan. 27, 14 Pac. 558; Sanford v. Oberlin College, 50 Kan. 342, 31 Pac. 1089; Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Holderman v. Hood, 78 Kan. 46, 96 Pac. 71; Yeager v. Aikman, 80 Kan. 656, 662, 105 Pac. 132.) The rule is that when a demurrer is sustained to a petition for the reason that it does not state' facts sufficient to constitute a cause of action such ruling is an adjudication upon the facts pleaded to the same extent as though such alleged facts had been established by evidence and a judgment adverse to plaintiff rendered thereon (Hyatt v. Challiss, 59 Kan. 422, syl. ¶ 2, 53 Pac. 467), but it is not an adjudication upon a different state of facts pleaded. Applying the rule to this case, in the cause of action. to which the demurrer was sustained, it was alleged that plaintiff pastured Boyd Messer’s cattle at the instance and request of defendant J. B. Messer. That was materially different from an allegation in the last amended pe tition to the effect that plaintiff pastured Boyd Messer’s cattle under an oral agreement under which defendant promised to pay. We cannot assume that the trial court permitted evidence to be introduced which had no relevancy to count one, or which bore only on the facts pertaining to the discarded count two. We interpret the order of court permitting the petition to be amended to conform to the proof to mean that it might be amended to conform to'the proof tendered by plaintiff in support of his first cause of action. In the evidence itself plaintiff’s testimony gave some support to all the items set up in his first cause of action, except the item of $30.60. As to it there was no evidence. The evidence on behalf of defendant centered around his claimed settlement and the showing that it was Boyd’s cattle pastured in 1922. On rebuttal plaintiff was interrogated by the court and then testified that altogether he had about thirty-five head of cattle, paid- of the time in 1921, belonging to defendant and his son. Touching the question whether the evidence justified the filing of this last amended petition, it seems clear that it did not, and plaintiff’s recovery in this case should be limited to the items claimed by him under his first cause of action, upon which the case was tried, which were supported by any substantial evidence in his behalf, which is all of the items in that first cause of action except the item, of $30.60. Therefore the judgment should be reduced to $139.45, and as so modified, affirmed, if the plaintiff will assent thereto. If not, the judgment must be reversed in toto, and a new trial directed. It is so ordered. Dawson, J., concurs in the result.	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The opinion of the court was delivered by Hopkins, J.: The action was one to recover under the workmen’s compensation act. Plaintiff prevailed, and defendants appeal. The facts are substantially these: Plaintiff, a young man, lived near the cement plant of the Kansas Portland Cement Company at Bonner Springs. That company in the summer of 1924 was remodeling its plant and made a contract with the Condie-Bray Glass and Paint Company to furnish and set the glass in the new plant in accordance with certain plans and specifications. The work of glazing proceeded, and plaintiff applied to the man in charge for em ployment. He was hired and set to glazing. While at work at an elevation of about forty-eight feet from the ground he slipped and fell upon a concrete floor, sustaining a severe injury to his back. The plaintiff was hired by one W. E. Watson, and one of the questions presented is whether Watson was an independent contractor, or whether he was wbrking for the defendant, the Condie-Bray Glass and Paint Company, and employed the plaintiff to work for that company. There was evidence that the defendant, the Condie-Bray Glass and Paint Company, contracted with the cement company to furnish and glaze all the windows, i. e., to furnish the glass and put it in the sash, for which it was paid $3,700; that it hired Watson to put the glass in; that it agreed to pay him as for piece work; that it took no bond from him that he would properly perform the work. There was no written contract between defendant and Watson, the defendant, however, claiming that Watson was an independent contractor or had taken a subcontract to do the work. The jury returned a special finding that the plaintiff was working as an employee hired by the defendants and that he was not the hired employee of Watson. Under the evidence submitted, it was a question of fact as to whether the plaintiff was an employee of the defendants, and the finding of the jury is conclusive. A vital question presented for consideration is whether the evidence was sufficient to show that the defendant came under the provisions of the compensation act — whether it employed as many as five men continuously for more than a month previous to the injury. While such evidence was meager, we think it was sufficient. There was evidence that the contract was procured by the defendant on May 23; that work was begun right away; that the glass was being set for a month before June 23; that the plaintiff was injured on June 23; that the defendant had been working there at least a month getting glass set and probably two months all told before the job of glazing was completed. The jury returned a special finding, supported by evidence, that nine men were employed in the work. The statute in part reads: “It is hereby determined that the necessity for this law and the reason for its enactment, exists only with regard to employers who employ a considerable number of persons. This act, therefore, shall only apply to employers by whom five or more workmen have been.employed continuously for more than one month at the time of the accident.” (R. S. 44-507.) Under all the circumstances the inference may reasonably be drawn that the defendant had the requisite number of men on the job for more than a month at the time of the accident, to bring it within the provisions of the compensation act. Other questions discussed in the briefs have been considered, but we find no error which would warrant a reversal. The judgment is affirmed.	[ -48, 120, -4, -115, 24, 96, 42, 90, 61, -123, -89, 91, -7, 71, 13, 97, -94, 29, 80, 43, -43, -77, 19, 75, -46, -65, -13, -59, -71, 79, -12, -35, 77, 16, 78, -107, -26, 66, -43, 28, -62, 4, 40, -18, -40, 80, 48, 90, 112, 15, 17, -114, -37, 40, 29, -49, 45, 44, 107, 41, 112, -15, -128, 5, 125, 20, 35, 37, -98, -57, 120, 31, -104, 49, 1, -24, 115, -74, -58, -12, 103, -71, 12, 98, 102, 32, -111, -57, 108, -104, 63, -66, -99, -91, 17, 120, 91, 13, -76, -99, 122, 20, 5, 120, -1, 29, 29, 108, 3, -117, -78, -16, 79, 124, -98, -123, -17, -123, 51, 117, -34, 34, 92, 103, 82, 27, -113, -99 ]
The opinion of the court was delivered by Harvey, J.: This is an action by the state to recover for the maintenance of a patient at the state hospital for the insane. The trial court sustained defendants’ demurrer to the petition, and plaintiff has appealed. The petition, so far as is necessary to be here considered, alleges in substance, that on December 7, 1894, 'Oliver Royer was duly adjudged insane and committed to the state hospital, where he has since remained as a patient; that his father, Daniel Royer, a resident of this state, died April 30, 1923, owning real property, which is described, and personal property of the aggregate value of $35,919, which by his will was bequeathed, and devised to his daughter, Maggie Mechtley, of Tylerville, Pa., $1,500 (having previously made advances to her), and the remainder to his daughter, Pearl Zimmerman, and his son, Ivan Royer; that the will of Daniel Royer had been admitted to probate, executors were appointed, the estate administered and disbursed according to the terms of the will, and that the estate had been finally closed. Attached to the petition is an account for the maintenance of Oliver Royer from the date of his commitment to April, 1925, in the total sum of $5,235.21. The action is against Pearl Zimmerman, Ivan Royer and Maggie Mechtley. The prayer is for a personal judgment against the defendants for the amount of the account and for costs, and that the real property owned by Daniel Royer at the time of his death be ordered sold and the proceeds applied upon the judgment. We first observe that plaintiff is not entitled to a personal judgment against these defendants. The statute (R. S. 39-233) provides who are bound by law for the maintenance of such patients: “The husband for the wife and wife for the husband, the parent for his or her children, and the children for their parents.” These defendants are not within that degree of relationship. The account should have been presented to Daniel Royer, or to his estate. The administration of his estate has been closed, but it may be reopened (R. S. 22-915), since the statute of limitation does not run against the state. (Horton v. Jones, 110 Kan. 540, 204 Pac. 1001; State v. Moore, Adm’r, 90 Kan. 751, 136 Pac. 233.) It is difficult to see how the state can recover, in any proceedings, all of the account claimed, especially for the time since the death of Daniel Royer, possibly for the time prior to the enactment of the statute (R. S. 39-232), under which plaintiff claims, which was May 27,1907. We suggest these matters, without deciding them, as some of the reasons why the claim should be presented to the probate court for allowance. That court is given jurisdiction “to hear and determine all demands against any estate.” (R. S. 22-708.) Even if it can be said, as argued by appellant, that the district court, being a court of general jurisdiction, can determine the amount of the claim, it is not error for it to decline to do so, when another court, designed for that purpose, is open to the claimant. The judgment of the court below is affirmed.	[ -48, -20, -99, -100, 26, -32, 42, 26, 97, -117, 39, 119, -23, 80, 21, 45, 97, 105, 112, 123, -41, -77, 71, -95, -46, -5, -79, -43, -79, -52, -26, -9, 76, 36, 10, 85, 102, -62, 65, -48, -114, 9, -87, -64, 89, -16, 48, 63, 86, 10, 49, -98, -29, 46, 24, -10, 8, 44, 105, 61, 84, -80, -117, 13, -49, 22, -126, 6, -104, -89, 88, 46, -104, 53, 0, -20, 113, -74, -122, 116, 111, -119, 45, 98, 98, -79, 5, -19, -32, -120, -113, -73, -99, -89, -78, 88, -125, 12, -73, -99, 124, 60, 9, -4, -12, 21, 84, 108, 1, -117, -42, -79, -49, 120, -98, -21, -21, 41, 32, 113, -115, 82, 92, 71, 115, -101, -98, -46 ]
The opinion of the court was delivered by Mason, J.: Arthur Lister appeals from a conviction on a charge of having intoxicating liquor in his possession. His contention is that the evidence did not sustain the verdict. There was testimony tending to show these facts: A resident of Soldier bought a bottle of whisky at night of a man who drove him to a point about half a mile west of that town, got out of the car, went through a hole in the hedge alongside the road and came back with the bottle. The sheriff the same night got the bottle and part of the liquor from him. He told the sheriff where he got the liquor but did not tell him of whom he bought it. The sheriff and two other officers the same night drove in two cars from Soldier to a point beyond the hole in the hedge, parked their cars, came back to the hole through a cornfield on the other side of the road, and hid themselves near by. Presently two cars drove up from the direction of Soldier and stopped, turning out their lights. The defendant got out of the first car and with a man from the second car — his brother — walked through the hole in the hedge. The defendant came back through the hole and seeing the sheriff’s party said, “What do you fellows want?” The sheriff asked him what he was doing there, and he made no answer. He was placed under arrest. There were fresh tracks resembling the defendant’s from the hole in the hedge to a place about a rod away where twenty-two pint bottles of liquor were found. At the trial the defendant testified that his brother, who was driv ing in front of him, stopped his car; that he drove around his brother’s car, stopped and came back to see what was the matter and was then .arrested. He said: “The officers are mistaken when they say I came through the hole in the hedge.” His brother and the third member of the party as witnesses each denied ownership of the liquor, as of course the defendant did also. The brother testified that he “was in employ of Anti-Saloon League for some time and would have arrested his own brother had he seen any liquor.” The defendant on cross-examination stated that he had been arrested once before on a whisky charge and was cleared by a jury; that he was then under arrest on a like charge in an adjoining county. We regard this evidence as sufficient to take the case to the jury. The judgment is affirmed.	[ -16, -18, 125, -99, 58, 96, -86, -8, 64, -125, -11, 115, -87, 65, 1, 99, -86, 127, 84, 107, -34, -73, 23, 65, -46, -13, 58, -59, -79, 104, -28, 117, 13, 36, -118, 85, 102, 72, -57, 92, -114, 5, -72, -63, 81, 24, 48, 57, 2, 14, 113, 31, -29, 46, 28, -61, 41, 44, 75, 61, -48, 120, -120, -115, -113, 22, -77, 38, -100, -123, -40, 62, 17, 49, 64, -8, -7, -92, -124, 116, 15, -119, -116, 102, 99, 37, 89, -21, 45, -23, 46, 106, -97, -89, 60, 25, 73, 105, -98, -99, 110, 24, 14, -4, -7, 85, 93, 36, 37, -117, -76, -79, -55, 56, -112, 28, -53, -95, 48, 113, -51, -6, 92, 69, 116, -103, -114, -14 ]
The opinion of the court was delivered by Marshall, J.: On July 2, 1925, the board of law examiners caused to be filed an accusation against Oscar E. Learnard, a practicing attorney at law in this state, charging him with having received from Harold O. Hunter a check to be collected by suit or otherwise for one-half of the interest of Hunter in the check; that an action was commenced before a justice of the peace, where judgment was rendered in favor of Hunter; that the action was then appealed to the district court, where the action was again tried and judgment was rendered for the plaintiff; that the case was then appealed to the supreme court where the judgment was affirmed; that the entire judgment was then paid by the defendant in the action; that the judgment was for $267.96; that the judgment was paid in full; and that the accused received the amount paid and refused to account to Hunter for any part of it. Harry K. Allen, of Topeka, was appointed commissioner to hear the evidence and make findings of fact and conclusions of law and report them to the court. That he has done. The findings of fact and the conclusions made by the commissioner are as follows: “Findings of Fact. “First. The accused, Oscar E. Leamard, is an attorney at law, fifty-one years of age, and has been engaged in the practice of law at Lawrence since 1896, except from 1906 to 1911, when he was out of the state. “Second. The reputation of the accused in and about the city of Lawrence, Kan., for truth and veracity and for ethical conduct and practices and fair dealing with his clients has been good. “Third. That about May, 1919, accused was employed by Harold O. Hunter to collect the cheek of $242.60 from G. A. Bucheim for a contingent fee of one-half of Hunter’s interest in the check; that it was later stipulated between the parties that if Hunter should be found to be the owner of the face of the check that the accused, Leamard, was to have one-half of the amount recovered. “Fourth. That the accused, Oscar E. Leamard, as attorney of record and in his representative capacity, on April 27, 1921, collected the amount of the judgment and interest, $267.96, and has converted the same to his own use; that the accused made no reasonable effort to locate his client; that he ignored the repeated demands of Harold O. Hunter in ten or twelve letters from Des Moines demanding a settlement; that he failed and refused to render an accounting upon the demand of Richard C. Hunter, attorney for Harold O. Hunter; and also, when opportunity was offered by the board of law examiners, he still failed and refused to account to or pay over the money due his client. “Conclusions. “The statute of Kansas, section 7-111, provides that an attorney at law may be disbarred or suspended for neglecting or refusing on demand to pay over money in his hands due or belonging to a client except where such money is retained under a bona fide claim of lien for services. The accused, Learnard, admits that he has converted the entire amount of the judgment and interest collected by him as agent for his client to his own use and boldly maintains his right thereto. “Your commissioner is of the opinion that the claim of the accused that he is holding the funds of his client under a bona fide claim of a lien for services cannot be sustained for the following reasons: “First. By his own statement, Hunter had only an interest of $40 or $50 in the check at the time the contract was made with Hunter, and any interest that Leamard had was measured by the contract made at that time. It would be limited to the terms of that contract. “Second. Learnard, having collected the judgment and receipted for it in his representative capacity, would be estopped to deny the title of his client to the money. On every consideration of equity and fair dealing he would be precluded from claiming the ownership of any increment, accretion, or after-acquired interest that might accrue to his client. “Third. The $100 draft which he purchased and carried with him is a confession that he owed Hunter and impeaches the bona fides of his subsequent conduct in converting the money to his own use. “Fourth. Leamard’s good faith depends largely on his claim that he was entirely unable to find Hunter. Taking into consideration the fact that he had the address of Hunter within thirty days of the time he collected the judgment; that his client wrote him ten or twelve letters in the next twelve months; that he answered the letter of Richard C. Hunter on November 23, 1923; that he knew that Hunter was an agent of the Liberty Life Insurance Company, and his admission that he made no effort, the only fair and reasonable conclusion is that he had formed a settled purpose to postpone and ignore his client and withhold from him the entire amount of the recovery. “The conduct of this attorney is contrary to the letter and spirit of the statute, the standard of ethics laid down by the supreme court of Kansas in a long line of decisions, is contrary to fair dealing between attorney and client, is contrary to the canons of the American Bar Association and the Bar Association of the state of Kansas, is contrary to. the oath of office taken by the accused, is unprofessional, is a betrayal of his trust, and justifies an order of disbarment. When a lawyer conducts himself so that confidence can no longer be placed in him with safety his usefulness to the court and state has ceased. Other offenses may perhaps be condoned, but conversion to his own use of the property of his client is an offense that cannot in any degree be countenanced. “In Ex Parte Burr, 9 Wheaton 529, Chief Justice Marshall said: ‘The profession of an attorney is of great importance to an individual and the prosperity of his whole life may depend upon its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved.’ “In view of the long and honorable career of the accused at the bar and that this is the first charge of unprofessional conduct ever made against him, and mindful of the admonition of Mai’shall that the power to revoke the license of an attorney should be exercised with great moderation and judgment, your commissioner recommends that the accused be suspended from the practice for.a period of two years: Provided, That at the end of one year he shall be permitted to apply for reinstatement upon a showing made that he has paid his client the money due him under these findings, together with the costs of this proceeding.” The accused requested other findings of fact and conclusions of law, which were refused by the commissioner. Some of the evidence concerning the contract between Hunter and the accused was conflicting. That evidence is disclosed by the findings and conclusions made by the commissioner and need not be here repeated. There was enough to support the finding of the commissioner, and the weight of the evidence likewise, supports the findings, which are approved and adopted by the court. Section 7-111 of the Revised Statutes, in part, reads: “An attorney at law may be disbarred or suspended by the supreme court, and not by any other court, for any of the following causes arising after his admission to practice in this state . . . for neglecting or refusing, on demand, to pay over money in his hands, due or belonging to a client, except where such money is retained under a bona fide claim of a lien for services. . . .” In 6 C. J. 591 it is said: “Whether so provided by statute or not, it is always a ground for the disbarment of an attorney that he has misappropriated the funds of his client, either by failing to pay over money collected by him for his client or by appropriating to his own use funds intrusted to his care, provided the circumstances attending the transaction are such as to satisfy the court that the attorney is acting in bad faith or with a fraudulent purpose.” Cases to support the principle declared in the text are there cited from twenty-nine different jurisdictions, among which is the state of Kansas. A note to Commonwealth v. Roe, found in 19 L. R. A., n. s., 414, reads: “Since honesty, probity and good moral character are necessary qualifications of an attorney for the practice of his profession, it has been almost universally held that an attorney who, upon demand, retains money collected for his client, or fraudulently appropriates to his own use money which has come into his hands in a professional way, is not of such honesty and good character as to make him worthy of the confidence of the public and his clients; and therefore the courts have not hesitated in disbarring or striking from the rolls one guilty of such acts.” In re Wilson, 79 Kan. 674, 100 Pac. 635, and In re Washington, 82 Kan. 829, 109 Pac. 700, support this rule. In'the code of ethics adopted by the American Bar Association and the Bar Association of the state of Kansas, it is said that— “In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.” (Code of Ethics, 108 Kan. v.) What was said by the court in In re Macy, 109 Kan. 1, 8, 196 Pac. 1095, is pertinent here: “It is an attorney’s duty to protect the rights of his client, but it is likewise an attorney’s duty to refrain from doing an intentional wrong to the ad verse party. In the United States of America the attorney at law occupies a peculiar and very important position. Because of his integrity, his ability, and his learning, he is often called on to administer the executive departments of government, and he fills a large place in all our legislative bodies. He has taken a most important part in framing our form of government and in guiding its growth and development. Possibly democratic government cannot long exist without a strong, able, honest, conscientious and patriotic bar. If a lawyer is not honest, if he is not conscientious, or if he is not patriotic, he is not fit to represent others in the courtroom. Justice is administered almost wholly by and through lawyers. The administration of justice is one of the highest, if not the highest, of governmental functions. An attorney at law in the preparation and trial of an action in court represents his client, but he does more than that — he is there, not only as an advocate, but also as a person tnisted and authorized by the state to assist the court in determining what is right between the parties before it. He cannot excuse himself by saying that his duty to his client demands that he adopt a line of conduct detrimental to the interests of the public. The state is vitally interested in seeing that justice is done and goes to great expense and provides elaborate machinery for that part of its governmental work. If attorneys at law are permitted to resort to unscrupulous practice for the protection of the supposed rights of their clients, one of the puiposes of the state will be defeated, its foundations will crumble, and life, liberty, property, and happiness will be at the mercy of lawyers who care for nothing except the advantage of their clients. The integrity of the .courts and of all who assist in their work must be preserved, or the practice of law, as it is now known, will cease.” In all of the courts, both state and federal, of the United States of America, an attorney at law assists in the administration of justice. He is there to promote justice. He is -a part of the machinery provided by government in the performance of its function in administering justice. If he perverts justice, the state fails in its duty to administer justice. His conduct should be as careful and clean as that of the judge who tries the case. In other words, the state demands of an attorney at law that he be absolutely obedient to law and that his conduct be always correct. He cannot escape disbarment by following that line of conduct which barely keeps the citizen out of jail. In the present case, if the accused had been charged with the embezzlement of the money in his hands and a jury had believed the evidence, which the commissioner believed, a verdict of guilty would not have been set aside. Oscar E. Learnard is suspended from the practice of law in the courts of the state of Kansas for a period of two years.	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The opinion of-the court was delivered by Harvey, J.: This is an action on a promissory note. The case was here before under the title of Trust Co. v. Gill, 113 Kan. 261, 214 Pac. 413, where the facts are sufficiently stated that they need not be here repeated. Since then the note was transferred to the present plaintiff. The case was tried to a jury, which answered special questions and returned -a general verdict for defendant. The plaintiff has .appealed. Appellant contends that its demurrer to defendant’s evidence should have been sustained; that it did not show fraud in the inception of the note sufficient to place upon plaintiff the burden of proof that it was a holder in due course. Upon this point the evidence was substantially the same as it was at the first trial, and clearly establishes that the execution of the note was induced by fraud. Appellant contends that, under the evidence. pertaining to the purchase of the note by the Ranchmen’s Trust Company, the court should have instructed, as a matter of law, that the trust company became a holder of the note in due course. In the former appeal,' upon the state of the evidence then before us, we said that was prop.erly a jury question. Upon this last trial the evidence upon this question was more favorable to defendant than it was at the first trial. There was no error in submitting this question to the jury. The question of estoppel is again urged. Upon this, we adhere to our ruling in the former appeal. The judgment of the court below is affirmed.	[ -16, 124, 96, -67, 10, -32, -94, -102, 73, -124, 39, 83, -23, -46, -108, 107, -26, 45, 101, 106, -42, -77, 103, 73, -46, -13, -7, -59, -79, 77, -26, 87, 76, 48, -62, -43, 70, -54, -61, 84, -50, 11, 9, -27, -39, -24, 48, 35, 84, 74, 101, 94, -15, 41, 57, -42, 45, 44, -21, 53, -48, -72, -70, 5, 79, 7, -79, 4, -108, 79, -40, 46, -112, -77, 1, -24, 58, -74, 6, 84, 107, 57, 9, 98, 98, 32, 116, -19, 28, -120, 47, -113, 13, -25, 80, 72, -85, 41, -105, -99, 116, 20, -121, -10, -26, 5, 27, 109, 3, -49, -46, -109, 31, 126, 26, 11, -13, -77, 16, 96, -50, -16, 92, 67, 26, -101, -114, -78 ]
The opinion of the court was delivered by Harvey, J.: This is a workman’s compensation case. There were findings and judgment for plaintiff, the workman. Defendant, the employer, has appealed. Defendant is engaged in the wholesale dairy business and has a plant where it receives milk, manufactures butter, etc., and from which it distributes its products. Its building is in the shape of an L, the base being near the alley. The part of the lot toward the front not occupied by the building is used as a loading and unloading place for its trucks, a number of which are used by defendant in its business. Plaintiff, an automobile machinist, was employed to keep the trucks in repair. He went to work every afternoon at two o’clock and put in whatever time was necessary to see that the trucks were in proper running condition, sometimes working only a few hours a day and sometimes working far into the night. On the day the injury of which he complains occurred he had just completed work on one truck and was told that the starter on a certain •Ford truck was stuck and was asked to repair it. Near the plant there is quite a grade in the street. The foreman directed plaintiff, the driver of the truck and another employee to push the Ford truck out into the street and down this grade and try to force the starter loose, and that was done. The starter was forced loose by this method. The car was then stopped on the street about 200 feet from defendant’s plant. Plaintiff raised the hood of the truck and was examining to see what caused the starter to stick, and to repair it, and while thus working on the truck a Ford coupé, driven by some one who was not an employee of defendant, was driven so that it struck him, breaking his leg and otherwise causing injury. There is no controversy here over the extent of the injury, nor the amount of compensation allowed, if plaintiff is entitled to compensation. A request for arbitration was made and refused. An application for the appointment of an arbitrator was filed and notice given to defendant. Defendant filed a written objection to the appointment of an arbitrator “for the reason that said employee, the plaintiff herein, was not injured by reason of an accident in, on or about the factory of employer, or defendant’s place of business,” and filed affidavits in support of this contention. Plaintiff also filed affidavits. These affidavits covered fully the nature of the employment and the circumstances under which the accident occurred. Upon a hearing of the matter and consideration of the affidavits, the court overruled the objection of defendant and appointed an arbitrator, and directed him to find and determine whether the relation of employer and employee existed between the parties; whether the parties were subject to the terms of the compensation act; whether plaintiff received personal injury by accident arising out of and in the course of his employment; whether notice of injury was given and claim for damages made; what was the nature and extent of the injury; what were the average annual earnings of plaintiff; the period of permanent total disability, if any, and of partial disability, and the character thereof; the amount of compensation due plaintiff, if any, and the mode of payment of same; what should be paid, if anything, for medical and hospital fees; and all other findings necessary, requested by either party, fully to carry out the provisions of the compensation act. At the hearing before the arbitrator defendant objected to any proceedings, for the reason that the plaintiff was not injured by “an accident in, on or about the factory of the employer, or at the defendant’s place of business,” and further objected to the arbitrator “passing on any questions other than the amount of compensation, the character and quality of the disability, and the period for which compensation shall be made, and objects further to the arbitrator finding on any of the other questions submitted.” These objections were overruled. The arbitrator took the testimony .and made detailed findings, in substance, that the relation of employer and employee existed between the parties; that they were subject to the terms of the compensation act; that plaintiff’s injuries were sustained in the usual course of his employment in, on, and about the factory, and arose out of his employment; that the proper notice and claim for damages were made; that plaintiff’s injuries rendered him totally' incapacitated from performing any labor for three months and one week; and that thereafter he is and will be permanently partially disabled for the period of eight years and longer; and also found the amount of compensation and the mode in which it should be paid. Thereafter plaintiff filed a motion for a judgment on the award, notice was given to defendant, and a hearing had thereon. The defendant made no application to review or modify the award, and made no request for a trial by the court, or by the court and jury, upon any issue. The trial court sustained plaintiff’s motion for judgment on the award. The defendant has appealed, both from the order appointing the arbitrator and from the judgment upon the award. Appellant contends that the court was not authorized to refer to the arbitrator, over its objection, the question of whether the relation of employer and employee existed between the parties, and whether the injuries received arose out of and in the course of plaintiff’s employment, or in the course of the employer’s trade or business, or on, in or about the factory of appellant. This contention is correct' (R. S. 44-522; Tidwell v. Schaff, Receiver, 114 Kan. 255, 217 Pac. 702; Hobson v. Wilson Bros. Coal & Mining Co., 120 Kan. 338, 243 Pac. 314), but appellant here is hardly in position to raise that question. There never was an objection to the appointment of an arbitrator for the reason that the relation of employer and employee did not exist between the parties; in fact, the objection made in effect concedes that such relation did exist. There was an ob jection for the reason that plaintiff did not receive his injury by accident arising out of and in the course of his employment, or in, on or about the factory of the employer, and in support of that objection -defendant submitted affidavits which were fully considered by the court, and the objection overruled. No request was made by defendant for any other hearing, or any other kind of a hearing, upon those questions. The court heard the defendant upon these questions in the only manner a hearing was asked. No answer was filed by defendant at any time raising these questions, or any other. No request was made by defendant, either before the appointment of the arbitrator or afterwards, for a trial to a jury upon any issue, and the only request for a hearing before the court —being the objection to the appointment of an arbitrator, for reasons stated, which the court was asked to hear upon affidavit — was granted. When a party is given a hearing upon every question he requests a hearing upon, and is given the kind of a hearing he requests, there should not be a reversal because of a lack of a proper hearing. Appellant argues that the evidence does not show that the relation of employer and employee existed between the parties. As above stated, defendant in filing its objections to the appointment of an arbitrator practically conceded the existence of that relation, but aside from that the evidence clearly, supports the finding on this point in favor of plaintiff. Appellant argues that the injuries which plaintiff received did not arise out of and in the course of his employment, nor in the course of the employer’s trade or business. Neither of these contentions has merit, as a consideration of the statement of the circumstances of the injury discloses. Appellant contends that plaintiff’s injuries were not received “in, on or about the factory” of defendant within, the meaning of the statute (R. S. 44-505, 44-508); that the car was on a public street, 200 feet from defendant’s factory, when the injury was received. The word “about” in the statute is one of locality. (Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657; Hicks v. Swift & Co., 101 Kan. 760, 168 Pac. 905; Hoops v. Utilities Co., 116 Kan. 598, 227 Pac. 332.) This was near the factory; the particular place for this work to be done was selected by defendant’s foreman when he directed that the car be pushed into the street for that purpose, and hence was adopted by defendant .as the place for making such re pairs, and was within the danger zone of the factory as then being conducted by defendant. (See cases above cited; also, Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190; Gadberry v. Egg Case Filler Co., 104 Kan. 72, 177 Pac. 834; Zabriskie v. Erie R. R. Co., 86 N. J. L. 266.) Finding no error in the record, the judgment of the court below is affirmed.	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The opinion of the court was delivered by Harvey, J.: This is a proceeding in mandamus to compel the bank commissioner to issue a certificate of deposit on the bank depositors’ guaranty fund. The trial court denied the writ, and plaintiff has. appealed. There is no controversy over the facts, which are, in substance, as follows: The Farmers and Mechanics Bank of Osawatomie was a state bank operating under the state bank guaranty law. Plaintiff carried its account in this bank. To secure this deposit represented by plaintiff’s account the bank executed to plaintiff its bond in the sum of $10,000, which bond was also signed by the Fidelity and Deposit Company of Maryland as surety. This bound the bank to pay upon demand any sum, or sums, so deposited by the plaintiff. While this bond was in force and on February 24, 1925, the bank commissioner took charge of the bank, found it to be insolvent, and liquidated its affairs. At that time plaintiff had on deposit in the bank $18,851.26. The surety company paid to plaintiff the full amount of the bond, and the then bank commissioner issued to plaintiff a certificate on the bank depositors’ guaranty fund for the balance of such deposit, $8,851.26. On June 30,1925, the receiver of the bank paid a thirty per cent dividend. On October 1, 1925, defendant canceled plaintiff’s certificate on the bank depositors’ guaranty fund, for the reason it had been improperly issued, and so notified plaintiff. This action is to require the defendant to issue a new certificate for the balance of its deposit, $6,195.89. The question before us requires an interpretation of the language in R. -S. 9-206, which reads: “All deposits not otherwise secured shall be guaranteed by this act.” Plaintiff contends that its account in excess of the amount of the surety bond given it by the bank was not otherwise secured. Defendant contends that the purpose of the statute was to classify accounts into those otherwise secured and those not otherwise secured, hence that it is immaterial whether the account was adequately secured. The question has really been determined in the case of State Bank v. Bank Commissioner, 110 Kan. 520, 204 Pac. 709. In that case the testimony was taken by a commissioner appointed by this court, and a question arose as to whether or not an account was otherwise secured within the meaning of the statute. The commissioner concluded that for a claim to be otherwise secured, the security must be reasonably certain and adequate. The court took a different view of the statute, and said: “We do not think that in declaring that ‘all deposits not otherwise secured shall be guaranteed by this act’ the legislature had in mind merely that other security than the guaranty fund should be first exhausted, or that to the extent that a deposit was otherwise secured it did not need the protection of the fund. The sentence was used in defining the land of claims to be covered by the act. This appears from its language and from the earlier provisions which it replaced. Its purpose as we regard it was to classify claims as secured and unsecured, giving the protection of the guaranty only to those otherwise without security. . . .” (p. 529.) We see no reason to change the views there expressed. The bond in this case purported on its face to secure the account as a whole, hence the account was a deposit otherwise secured. The fact that the security was inadequate, that at the immediate time the bank closed the deposit was in excess of the bond given, does not change the account, or any part of it, into a deposit that was not otherwise secured. The judgment of the court below will be affirmed.	[ -10, 106, -8, -35, 10, 112, 42, -70, -45, -95, -91, 115, -7, 70, 20, 97, 54, 57, -16, 105, -41, -77, 55, 75, -46, -13, -15, -59, -75, 127, -28, 87, 76, 48, 10, -43, -26, -38, -61, 94, -50, 8, 42, -63, -39, -24, 52, 31, 114, 75, 101, -113, -29, 52, 88, 78, 73, 46, -54, -67, -16, -79, -118, -123, 111, 20, 49, 100, -112, 69, -48, 46, 24, -77, 1, -7, 114, -74, -122, 116, 105, 27, 41, 114, 98, 1, 49, -50, -68, -104, 22, -37, -113, -122, -110, 73, 34, 46, -74, -99, 124, 49, -122, -4, -69, 21, 31, 108, 7, -53, -90, -77, -119, 127, -102, -119, -33, -125, 48, 112, -54, -16, 93, 71, 123, 59, -114, -67 ]
The opinion of the court was delivered by Burch, J.: The action was one to foreclose a materialman’s mechanic’s lien on a dwelling house. Plaintiff recovered, and the judgment in his favor is not contested. The contractor who had undertaken to erect the improvement, and who was a defendant in the action,- claimed that, without fault on his part, the owner prevented him from performing, and prayed judgment against the owner for the value of the labor and material he had furnished, and a fair profit, and for foreclosure of a mechanic’s lien. The owner claimed that, without fault on his part, the contractor abandoned the work, and prayed judgment against the contractor for the cost of completing the building. The contractor recovered, and the owner appeals. The contract for erecting the building was signed on September 19, 1921, and a few days later construction was begun. The work was delayed. The owner charged the contractor with lack of diligence and other delinquencies, and the contractor charged the owner with interference with progress of the work and other delinquencies. On December 7, the owner gave the contractor a check for $250, and urged the contractor to go ahead and complete the house, which the contractor said he would do. On December 8 work on the house stopped. On December 10 the owner served on the contractor a seven-day notice to finish the building, and about December 19 the owner commenced completion of it. The lawsuit turned on who was at fault for cessation of work on December 8, and .the nature of the fault. There was evidence that on December 8 the owner discharged the contractor’s workmen then at work on the house, and locked up the house. This evidence was disputed. The court submitted the matter to the jury in the following instruction: “If you find that P. J. Greene made unfounded and unreasonable complaints as to the details of the work to be done, such complaints did not justify Lansdowne in abandoning the work, provided Greene took no step to compel Lansdowne to quit the work; but if you find that Greene made unfounded and unreasonable complaints as to the details of the work and took steps to prevent Lansdowne from completing it, such as locking the door, before Greene or Wilson took over the work, or excluding the workmen, or telling him not to go on with -the work, then you are instructed that such unfounded and unreasonable complaints, if any, by Greene, under such circumstances would justify Lansdowne in abandoning the work.” The instruction is criticized as finally vesting privilege to abandon on conduct which the first part of the instruction said would not justify abandonment. The proviso in the first part of the instruction and the words “under such circumstances” in the latter part, make the meaning clear that privilege to abandon depended on acts of prevention. The jury found generally and specifically for the contractor. The owner contends that there was no adequate evidence to support the jury’s findings; that the evidence was overwhelmingly to the contrary; that plaintiffs’ witnesses were not certain about the date December 8, and a circumstance by which they fixed the time was clearly proved to relate to an earlier day; that one of plaintiffs’ witnesses testified he thought “they just went out,” and another of plaintiffs’ witnesses was unreliable and unworthy of belief; that many things were at utter variance with the owner’s having discharged the contractor’s workmen on December 8, and that the jury were unfair and were prejudiced. It will be observed that in this contention there is no assertion there was.no evidence to sustain the jury’s finding that on December 8 the owner discharged plaintiffs’ workmen then on the job. There was such evidence, and the jury chose to base their finding on that evidence. Conflicts in the evidence, credibility of witnesses, and weight of evidence, were matters for the jury, the district court approved the finding, and it is sheer harassment of this court to contend here against the finding. The owner contends the case was tried on the theory of rescission by the contractor, and the court should have determined whether the contractor had valid ground for rescission. The contention is based on the owner’s view of responsibility for final withdrawal of the contractor, and not on the view taken by the court and jury. The case was tried on the theory presented by the pleadings: Did 'the contractor wrongfully abandon the work, or did the owner wrongfully prevent him from performing? Evidence bearing on attitudes of owner and contractor was extended to December 28, when the contractor, through his attorney, notified the owner that the contractor intended to hold the owner liable for the value of services performed, including labor and material, and for a reasonable profit. Whether the contractor could do that depended on the facts. The owner’s side of the controversy was duly submitted to the jury in the court’s instructions, and the jury found the facts in favor of the contractor. The owner contends that in no event could the contractor recover on quantum meruit, and that if he were to recover, the amount should be a proportionate part of the contract price. The case of McGrew v. Investment Co., 106 Kan. 348, 187 Pac. 887, is cited as conclusive upon the subject. In the McGrew case, the contractor proceeded regularly with performance of the contract until he was stopped by the owner, and the rule of proportion was properly applied. In this case, the plan of the building was changed before work began. Subsequent changes were made and extras were added, at the owner’s request. Savings were effected by the contractor by less expensive methods of construction, and prosecution of the work was delayed by intervention and through fault of the owner. Under these circumstances the rule of proportion could not be applied, and the contractor was entitled to recover the full value of all material and labor furnished in partial performance, and a reasonable contractor’s profit. The foregoing disposes of the merits of this appeal. Assignments of error relating to rulings on evidence, instructions to the jury, special findings of the jury, insufficiency of lien statement, and amend ment of lien, have been duly considered. There is enough in the record to show that the owner was not guilty of litigiousness in contesting the contractor’s demands and in presenting his own claims to the jury; but the court is not able to declare that it affirmatively appears from the record that trial error prejudicial to the owner’s substantial rights was committed. The amount of the general verdict did not include a sum found specially by the jury which the contractor was entitled to recover. The court properly added the two amounts in rendering judgment. The special finding referred to unpaid bills incurred by the contractor for material and labor, some of which had been reduced to judgment and lien against the owner. Any payment made by the owner on the bills or judgments should of course be credited on the contractor’s judgment, and the case is left open in the district court for proper proceedings to that end. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Hopkins, J.: The defendant appeals from a conviction under the statute which provides, “Any person . . . who shall persuade, induce, intice or procure . . . any female person ... to go from one place to another within this state for the purpose of prostitution, fornication or concubinage shall be deemed guilty of a felony.” (R. S. 21-937.) The defendant was arrested upon a warrant and complaint containing three counts. The first count charged forcible rape. The second and third, violation of the statute above quoted (R. S. 21-937). The second count alleged that the defendant induced Loretta Morris to go from 707 North street, in the city of Iola, to 604 North Sycamore street, the same city, for the purpose of fornication. Count three charged that (at another and different date) the defendant persuaded and induced Loretta Morris to go from the city of Iola, Kan., to Kansas City, Mo., for the purpose of fornication. On the trial the court sustained a demurrer to the state’s evidence as to count three; the jury found the defendant not guilty on count one, and guilty on count two. The defendant contends that the court erred in not sustaining his motion to quash the information because of duplicity and conflict in the several elements and different crimes charged carrying different punishments. He argues that count one was not in any way related to or part of the crimes charged in counts two and three; that they were inconsistent; “That the crime of forcible rape is foreign to the white slave statute and there is no common ground upon which one can stand for the rule of similarity. One is force and the other is acquiescence.” A similar argument was made in State v. Odle, ante, p. 284, 246 Pac. 1003, where it was held that: “Two distinct sexual offenses (rape and incest) charged under different sections of the statute, each arising from a separate and distinct act of illicit sexual intercourse between the same parties but on different occasions, may be included in separate counts of the same information.” (Syl.) Two separate and distinct crimes were joined. They did not relate to one and the same transaction, but were a part of a series of closely related transactions, associated with the debauchery of the complaining witness. Rape and fornication belong to the same family of crimes. Illicit sexual intercourse is the foundation of each. They are of a similar character, notwithstanding the fact that they may not be committed by the same act, since the crime of rape requires an element of force, and fornication an element of concurrent consent. The only question for consideration is the propriety of joining such separate counts in one information. They were distinct sexual felonies, charged under different sections of the statute, each arising from a separate and distinct act of illicit sexual intercourse between the same parties, but on different occasions, being closely related by circumstances, time of commission, and each part of a series of criminal conduct on the part of the defendant. (State v. Odle, supra.) Under the circumstances there was no impropriety in joining such counts in the same information. The defendant contends that the evidence was insufficient to support the verdict of guilty on count two. The evidence showed, substantially, these facts: The defendant and complaining witness had been keeping company for some time prior to October 28, 1923. On that day, which was Sunday, the complaining witness had gone with her family to the home of her aunt at 707 North street, to attend a birthday celebration. The defendant called the complaining witness on.the telephone and requested her to meet him and go to his home for the expressed purpose of learning how to make pumpkin pie. Pursuant to his request, Miss Morris left the home of her aunt with her three-year-old-brother. They met the defendant on the street and went to his home. The house, with the exception of the kitchen, was in. general disorder on account of remodeling. After being there a short time the three-year-old boy was put in the bathroom, and it was during the time he was in the bathroom that the act complained of occurred. The defendant argues that there was not sufficient corroboration of the testimony of the complaining witness to sustain the conviction. Various letters were introduced which tended more specifically to sustain the third count of the information. The court had sustained a motion by the defendant to strike out the evidence sustaining that count, but did not, however, strike out any evidence which tended to support the second count. In addition to the letters, which, in a general way, may be said to have corroborated the testimony of the conplaining witness on the second count, there was testimony of both the mother of Miss Morris and her aunt, who had answered the phone when the defendant called up. In State v. White, 111 Kan. 196, 206 Pac. 903, it was held: “The statutory requirement that no conviction shall be had under section 319 of the crimes act on the uncorroborated testimony of the woman, may be satisfied by evidentiary facts and circumstances, not necessarily by eyewitnesses.” (Syl. See, also, State v. Stitz, 111 Kan. 275, 206 Pac. 910; State v. Besango, ante, p. 186, 246 Pac. 1001.) Considering all the circumstances, we are of opinion the corroborating evidence was sufficient. The defendant contends that the trial court erred in permitting certain exhibits to be taken to the jury room. The evidence showed that the parties had gone to Kansas City for the purpose of being married; that while there they occupied the same room as husband and wife; that the defendant, however, put off the marriage from time to time, and that the parties were never married. He returned to Iola, while the complaining witness remained in Kansas City, still looking forward to and expecting the defendant to marry her. The exhibits in question were chiefly letters written by the defendant to the complaining witness while she was in Kansas City. The court sustained a demurrer to the evidence on the third count on the theory that the parties had not gone to Kansas City for the purpose of fornication, but had gone there to be married and afterwards changed ¿heir minds. This being the situation, the defendant contends that the exhibits were introduced only in support of the third count, and that when the court instructed the jury to consider no evidence in support of that count, that the exhibits were eliminated from the case. It is apparent that the trial court entertained the view that the exhibits were corroborative of the charge against the defendant in the second count. We are of the same opinion. The defendant cities State v. Bonsor, 49 Kan. 758, 31 Pac. 736, as sustaining his contention. It was there said: “The state elected to rely on a particular act, and under this election it was the duty of the trial court to exclude from the consideration of the jury all testimony with reference to other acts that did not tend to prove the commission of the particular act relied upon by the state for conviction.” This language from the syllabus of the case might indicate .that no evidence should be introduced even if corroborative, unless it tended to directly prove the particular act. It appears, however, that the court excepted from the expressed rule evidence-which was corroborative of the act complained of. The opinion- contains this language: “Without further comment on the motion to exclude the several acts, we .are constrained to say, in deference to well-settled principles, that when the state elected to rely for conviction on the particular act of intercourse, the appellant had the right to have all the testimony excluded that did not tend to directly prove the truth of the charge of intercourse under the bridge, with the possible exception above noted, that of several acts as tending to cor robórate the prosecuting witness. If ail of these things complained of could be connected with the act under the bridge, as preparation for the commission of the unlawful act, or as attempts to conceal its commission or consequences, they would be taken into consideration by the jury; but it is evident from the record that they were done for the purpose of concealing and avoiding the consequences of the commission of another and a prior unlawful act, and ought to have been excluded, on the motion of the appellant.” (p. 762.) The rule has been relaxed since the decision in State v. Bonsor, supra. In State v. Borchert, 68 Kan. 360, 74 Pac. 1108, it was said: “In a prosecution upon a charge of statutory rape, where it is claimed that the act relied on for Conviction was a part of a course of illicit commerce between the defendant and the complaining witness, it' is not error to admit evidence of other acts similar to that so relied on, for the purpose of showing the relations existing between the parties.” (Syl.) , In State v. Brown, 85 Kan. 418, 116 Pac. 508, it was said: “In a prosecution for carnal knowledge of a female under the age of eighteen years, evidence of anterior and subsequent acts of sexual intercourse between the prosecutrix and the defendant may be received in evidence to show the relations existing between the parties as well as their disposition toward each other. Evidence of such other acts are not admitted to show other offenses but as tending to show the offense on which a conviction is sought, and the testimony is not rendered inadmissible because it may tend to prove the commission of other offenses.” (Syl. See, also, State v. Walke, 69 Kan. 183, 76 Pac. 408; State v. Learned, 73 Kan. 328, 85 Pac. 293; State v. Stone, 74 Kan. 189, 85 Pac. 808; State v. Hansford, 81 Kan. 300, 106 Pac. 738; State v. Stitz, 111 Kan. 275, 206 Pac. 903; State v. Odle, supra.) We regard the exhibits as being properly in evidence and unless the defendant was prejudiced by their being taken to the jury room he has no ground of complaint. We cannot presume that the defendant was prejudiced, and as no prejudice is shown the complaint cannot be sustained. Complaints of certain of the instructions, and that the jury disregarded others have been considered and cannot be sustained. Various other alleged errors have been considered, but we find none which warrant a reversal. The judgment is affirmed.	[ -16, -22, -3, -2, 26, 64, 42, -72, -110, -111, -76, 115, 109, -40, 0, 121, -78, 125, 85, 105, -43, -73, -121, 97, -14, -77, -79, -44, -73, 79, -28, -12, 76, 49, 15, -7, 70, -54, -31, 92, -118, 1, -120, -64, 80, -54, 52, 127, 69, 10, 49, -114, -69, 40, 24, 66, -87, 44, -53, 61, 88, -79, -8, -41, 93, 22, -77, 36, -100, 1, -24, 44, -104, 49, 32, 104, 115, -108, -122, 116, 79, -117, -115, 34, 98, 3, -91, -17, 56, -128, 46, 62, -67, -89, 88, 88, 67, 108, -65, -99, 100, 84, 2, 122, -14, 108, 25, 100, 43, -113, -80, -79, 77, 53, -110, 63, -13, 23, 16, 53, -57, 98, 93, 87, 56, -109, -114, -9 ]
The opinion of the court was delivered by Marshall, J.; The action is one on a promissory note by the payee thereof. The defendants alleged that the signatures to the note were procured by representations of the plaintiff which were fraudulently made. The defendants asked that the plaintiff take nothing, and that they be given judgment against the plaintiff for their damages in the sum of $1,275. Judgment was rendered in favor of the defendants for $229.17, and the plaintiff appeals. The case was tried twice. As a result of the first trial, a verdict was returned in favor of the defendants for $1,000 and special questions were answered by the jury. A new trial was granted on the question of the damages sustained by the defendants, but not as to any other matter involved in the action. On the second trial, a verdict was returned in favor of the defendants for $350; $120.83 of that amount was remitted, and judgment was rendered for $229.17. The first trial occurred on November 14, 1924; the second trial occurred on March 5,1925. The appeal was perfected April 29, 1925. The appeal is from all the orders, verdicts and judgments rendered in the case adverse to the plaintiff. The principal question involved in the appeal from the first trial arises on an order overruling the demurrer of the plaintiff to the evidence of the defendants. This necessitates an examination of the evidence in behalf of the defendants. There was evidence which tended to prove that the defendants were operating a garage in Liberal in the fall of 1921; that at that time they became the agents of the Aultman-Taylor Machinery Company; that the plaintiff, the agent of the company, attempted to have the defendants order two tractors from the company; that the defendants declined to order the tractors; that the plaintiff obtained an order for them, one large one and one small one, signed by the bookkeeper of the defendants; that the bookkeeper did not have authority to order the tractors; that when the defendants learned that the tractors were to be shipped they requested the company to hold up the shipment; that when the tractors arrived, the defendants refused to receive them and did not desire to purchase them because they were short of money; that the plaintiff represented' to the defendants that he had the larger one of the tractors sold; that if the defendants would purchase the tractors and pay the freight on them, the plaintiff would turn the larger one over to the party who had purchased from him; that the defendants through such a transaction would ■secure their commission on the sale; that there was $445.66 freight ■on the two tractors which had been previously shipped and were then on board a car at Liberal; that if the defendants would execute to the plaintiff their note for $445.66, he would advance the money to pay the freight on the tractors; that he guaranteed the sale and delivery of the larger tractor before the note would become due; that the plaintiff would assist the defendants in selling the other tractor; that the defendants believed the representations made by the plaintiff; that they then signed the note to the plaintiff, the note sued on in this action; that the plaintiff never sold the large tractor; that it had not been sold when the note became due and was afterward sold by the defendants at a loss; and that they sustained damage thereby. The evidence was sufficient to compel the court to submit the cause to the jury for determination, although in response to a special question submitted the jury found that the plaintiff had an order for the larger tractor at the time he •stated he had. Complaint is made of the following instruction given on the first trial: “You are further instructed that if you find and believe, from a preponderance of the evidence, that at or about the time the tractors arrived at Liberal, and before the defendant, Smith, had actually consented to the purchase, the plaintiff in order to induce the defendants to accept said tractors, pay the freight thereon, and execute notes therefor, stated to said defendants, or either of them, that he had an order for a tractor, like the large tractor involved in this case, and that if the defendants would accept said tractor, he would apply the large- one on the order which he had obtained, or that he would guarantee and agree to take said tractor off their hands himself, in case they were not able to sell the same, before their note given therefor became due, that said plaintiff failed or refused to carry out the terms of said contract, and that the defendants were unable to sell said large tractor for the amount they paid for the same, together with the freight thereon, and were compelled to and did sell said large tractor for a less amount, it will be your duty to allow the defendants damages in an amount equal to the difference between, the amount the defendants actually paid for said large tractor, including the freight thereon, and the amount for which they sold said tractor, and you should determine the amount of such damage, and if the same exceeds the amount of the plaintiff’s note and interest, you should return a verdict for the defendants, for the amount of such excess, but if the amount of such damage is less than the amount of the note with interest, you should deduct the damages from the amount of the note with interest, and return a verdict-for the plaintiff for the balance.” It cannot be said that the instruction was erroneous because under the pleadings and evidence, the defendants were entitled to recover on either one of two theories: first, that the representations made by the plaintiff amounted to a warranty of the truth of the statements he made for the purpose of securing the signatures to the-note; or, second, on the theory that the plaintiff guaranteed the sale of the large tractor before the note became due. The fact that the representations were fraudulently made did not detract from their effect as a warranty of the truth of those representations nor from the guaranty that was made. On the first trial, the jury answered special questions as follows: “1. Did the plaintiff, Gill, tell the defendants that he had the big tractor sold and that he would guarantee to deliver it or that he would take it off their hands before their notes became due, prior to the defendant’s executing and delivering the note sued on? A. Yes. “2. Was defendant, E. S. Smith, present when his name w.as signed to the letter, dated September 28, 1921, by Abe Pankratz? A. No. “3. Was the said Abe Pankratz authorized to sign the letter referred to in question No. 2? A. No. “4. Did the plaintiff have an order for the 22-45 tractor at the time he stated to defendants he had? A. Yes.” The verdict was for the defendants for $1,000. At the conclusion of that trial, the plaintiff filed a motion for a new trial, which was overruled as to everything except the amount of damages, and upon that question the court granted a new trial. There was evidence sufficient to sustain the verdict in all particulars except possibly the amount thereof, as to which a new trial was granted. The court had power to grant a new trial as to one issue.. (R. S. 60-3004.) The plaintiff contends that “on second trial, the court erred in the admission of evidence.” The second trial was for the purpose of ascertaining the amount of damages sustained by the defendants. They alleged in their answer that they lost the commission on the sale of the large tractor, $775; that thqy had no use for the tractors; and that they were further damaged in interest and in the depreciation of the tractors in the sum of $500. The evidence complained of was that which tended to show that the defendants were unable to sell the large tractor except at a loss. The evidence was competent for the purpose of showing the damages sustained by them, but it may not have been specifically alleged in the answer. The difference between the pleadings and the evidence did not mislead the plaintiff. It could not have misled him. If a new trial were ordered because of the evidence being inadmissible under the pleadings, it would be a very simple matter to ask to amend the pleadings and thus render the evidence admissible. In similar cases, this court has often considered pleadings as amended for the purpose of upholding judgments which upon the whole have appeared to have been in accordance with justice. In the present case, the pleadings will be considered as amended for the purpose of avoiding the formality of amending the pleadings in the trial court and again introducing the evidence to be considered by another jury. On the new trial, the plaintiff at the close of the evidence for the defendants demurred thereto; that demurrer was overruled; of that, the plaintiff complains. As has been indicated, there was evidence on the last trial which tended to show that the defendants were unable to sell the large tractor except at a loss, for which the jury returned a verdict in their favor. It is urged that the court committed error in overruling the last motion for a new trial. The verdict was for $350. The defendant remitted all but $229.17, for which judgment was rendered. There was evidence to show that the defendants had been damaged in that amount. Complaint is made of the instructions to the jury concerning the measure of damages. The instructions have been examined, and no error is found in them. The judgment is affirmed.	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The judgment of the court was delivered by Mason, J.: The Great Western'Portland Cement Company complained to the public service commission, that certain railroads, prior to May 3, 1925, had charged and collected from it, for transportation of crude oil within the state, rates that were unjustly and unreasonably high. The company asked the commission to find that such rates were unjust and unreasonable and to find what rates at that time would have been just and reasonable. The commission re fused, on the ground that it was without jurisdiction. The company then obtained in this court an alternative writ of mandamus to require such action. The case has been submitted upon the commission’s motion to quash the alternative writ. The railroad commission act of 1883 contained this provision: “No railroad company shall charge, demand or receive from any person, company' or corporation, an unreasonable price for the transportation of persons or property, or for the hauling or storing of freight, or for the use of its cars, or for any privilege or service afforded by it in the transaction of its business as a railroad company. And upon complaint in writing, made to the board of railroad commissioners, that an unreasonable price has been charged, such board shall investigate said complaint, and if sustained shall make a certificate under their seal, setting forth what is a reasonable charge for the service rendered, which shall be prima facie evidence of the matters therein stated.” (Laws 1883, ch. 124, § 11.) The act, having been repealed in 1898, was restored with some changes in 1901. The section quoted was reenacted without change except that “persons or property” became “persons and property,” “privilege or service” became “privilege of its service,” and “matters” became “matter.” ('Laws 1901, ch. 286, § 21.) The section was omitted from the Revised Statutes of 1923. The plaintiff contends that its omission was because of the opinion of an employee of the revision committee, which must be regarded as having been tacitly adopted by that committee and by the legislature, to the effect that it was superfluous because its provisions were covered by two sections of the public utilities act of 1911 (Laws 1911, ch. 238, §§ 14,16, R. S. 66-111, R. S. 66-113); that if the sections referred to’ do not explicitly cover the provisions they do so by implication, their language being ambiguous in that regard and such construction being one to be favored in view of the facts stated, as in accordance with the intent of the legislature and the spirit of the statute. The defendants assert that the section quoted, which is relied upon by the plaintiff, is no longer in force, by reason of having been omitted from the Revised Statutes; that its provisions are not covered by any other statute; that it would in any event be invalid-as attempting to confer pure judicial power on an administrative body; and that the plaintiff is without remedy because the rate of which it complains was fixed by the then established tariff, which was necessarily legal until set aside. The omission of the section in question from the revision amounted to its repeal. It can hardly be conclusively presumed that the legislature omitted it upon the theory that it was superfluous, but even in that case the presumption would not avail to preserve its force. A belief on the part of the legislature itself that the omitted statute was covered by remaining provisions, if such were not the fact, could not constrain the courts to so hold. If other sections of the statute contained ambiguous language open to a construction which would make them cover the omitted section, a presumption that the legislature omitted it as superfluous might be a reason for favoring that interpretation, but could affect the matter no further. The sections of the existing law which are relied upon by' the plaintiff as covering the same ground as the omitted section contain this language, the parts here printed in italics being those italicized in the plaintiff’s brief: “Upon a complaint in writing made against any common carrier . . . by any taxpayer, firm, corporation or association, that any of the rates or joint rates, fares; tolls, charges, ... of such common carrier are in any respect unreasonable, unfair, unjust, unjustly discriminatory or unduly preferential, or both, or that any regulation, practice or act whatsoever affecting or relating to any service performed or to be performed by such public utility or common carrier for the public, is in any respect unreasonable, unfair, unjust, unreasonably inefficient, insufficient, unjustly discriminatory or unduly preferential . . . the commissioners shall proceed, with or without notice, to make such investigation as they may deem necessary. The commissioners may, upon their own motion, and without any complaint being made, proceed to make such investigation, but no order affecting such rates, joint rates, tolls, charges, rules, regulations and classifications, schedules, practices or acts complained of shall be made or entered by the commission without a formal public hearing, of which due notice shall be given by the commission to such public utility or common carrier or to such complainant or complainants, if any. . . .” (R. S. 66-111.) “If upon such hearing and investigation the rates, joint rates, fares, tolls, charges, ... or schedules of such common carrier . . . are found to be unjust, unreasonable, unfair, unjustly discriminatory or unduly preferential, or in anywise in violation of the provisions of this act, or of any of the laws of the state of Kansas, the public utilities commission shall have the power to fix and establish, and to order substituted therefor, such rates, joint rates, fares, tolls, charges ... or schedules as it shall find, determine or decree to be just, reasonable and necessary; . . . All orders and decisions of the public utilities commission whereby any rates, joint rates, fares, tolls, charges, rules, regulations, classifications, schedules, practice or act relating to any service performed or to be performed by such . . . common carrier for the public. are altered, changed, modified, fixed or established, shall be reduced to writing, and a copy thereof, duly certified, shall be served on the . . . common carrier affected thereby, by registered mail; and such order and decision shall become operative and effective within thirty days after such service, and such public utility or common carrier shall, unless an action is commenced in a court of proper jurisdiction to set aside the findings, orders and decisions of said public utilities commission, or to review and correct the same, carry the provisions of said order into effect.” (R. S. 66-113.) The statute also contains these provisions upon which the plaintiff also in part relies: That it is the duty of the carrier to establish just and reasonable rates, and every unjust rate demanded, exacted or received is prohibited and declared to be unlawful and void (R. S. 66-107); that the grants of power to the public service commission shall be liberally construed, and that all incidental powers necessary to carry the act into effect are expressly conferred upon it (R. S. 66-141); and that the commission shall furnish copies of rates or orders which shall be admissible in evidence in any suit, and sufficient to' establish the fact that any rate or order therein contained, which might be in issue, is the official act of the commission, and such determinations or orders of the commission shall be prima jade evidence of the reasonableness and justness of the rates (R. S. 66-151). The language of the present statute does not appear to us to give authority, expressly or by fair or even liberal interpretation, for the commission to make findings as to the reasonableness of a rate previously charged or as to what rate would at that time have been reasonable. We do not think a purpose to grant such a power is to be inferred from the use of the phrase “performed or to be performed” in describing the services and acts which the commission is to investigate. The purpose served in having the commission find that a carrier has overcharged a customer is obviously different from the purpose back of conferring upon it power to fix rates for the future. A Canadian case is cited as supporting a different view (Canadian Pac. R. Co. v. Canadian Oil Co., 47 Can. S. C. R. 155; 19 D. L. R. 64), but the statute there construed is sufficiently different from our own in language and history as to admit of a ready distinction. The statute authorizing the commission to find that a rate formerly charged was excessive to a specified extent was enacted in the early stages of attempted rate regulation, before the era of officially approved tariffs. It was preserved unchanged until its omission from the revision of 1923. If it had been retained it would have been inoperative to the extent of any conflict with late statutes, although both had been reenacted at the same time. (Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009.) A plausible reason for the omission of the earlier section might be based upon the theory of inconsistency. We see no occasion for reading anything into the statute on the theory of some inadvertent omission. A consideration, however, which we regard as clearly controlling, and which does away with the occasion for a fuller discussion of the matters already mentioned, is this: Rates of carriers are now fixed by the tariff sheets on file. A carrier can lawfully charge neither more nor less than the rate so fixed. This condition has existed for many year's. The alternative writ of mandamus indicates the time at which the overcharges were made which are the basis of its complaint no more definitely than to say that it was “prior to May 3, 1925.” The presumption is that the charges .complained of were in accordance with a then existing rate sheet, there being no allegation to the contrary. That being the case, there is no occasion for the commission to make an inquiry or finding as to whether the rate was reasonable. The following cases, while not involving statutes identical in language with our own, apply the same principle: Steel Corporation v. Pub. Serv. Com., 90 W. Va. 74; E. L. Young Heading Co. v. Payne, 127 Miss. 48; Texas & P. Ry. Co. v. Railroad Commissioners, 137 La. 1059; Santa Fe G. & C. M. Co. v. A., T. & S. F. Ry. Co., 21 N. M. 496; Utah-Idaho C. Ry. Co. v. Pub. U. Com., 64 Utah, 54; Murphy v. N. Y. C. R. R. Co., 225 N. Y. 548. This view makes it unnecessary to consider whether the omitted section, if it had been retained in the revision, would be constitutional. The motion to quash the alternative writ is sustained.	[ -14, 122, -4, -116, -101, 96, 10, -104, 85, -29, -91, 83, -23, 84, -128, 35, -13, 117, -15, 106, -12, -125, 7, 99, -46, -45, -79, -49, 57, 111, 100, -57, 76, 34, -22, -107, 102, -62, -59, 94, -50, 36, -88, -21, -39, 64, 52, 73, 18, 79, 81, -113, -13, 44, 24, -61, 41, 44, 127, 41, -63, -71, -102, -107, 127, 18, 17, 38, -104, -121, -20, 30, -104, 21, 27, -8, 115, -90, -58, -10, 45, -7, -119, 98, 98, 97, 21, -25, -68, -72, 62, -38, -115, -92, -106, 16, 35, 1, -106, -99, 100, -60, -121, 126, -2, -123, -33, 108, 3, -85, -74, -29, -115, 102, -98, 23, -50, -89, 22, 116, -56, -14, 92, 71, 116, -101, -113, -66 ]
The opinion of the court was delivered by Johnston, C. J.: This is an.appeal from a judgment for $500 rendered against the First State Bank of Cedar Bluffs in favor of Joshua Rowland, which had been an amount alleged to have been placed in escrow with the bank in the form of a check, and which it is alleged the bank failed to pay to Rowland in accordance with the terms and conditions of the escrow agreement. The controversy arose out of a sale of a farm of 440 acres by Rowland to Dick Pfister, for the sum of $11,000, $2,000 of which amount was to be paid in cash. On the farm there was a first mortgage to a party in Kansas City of $4,500, and the bank had a second mortgage on it for an indebtedness of Rowland to the bank of $5,600. The arrangement was that these mortgages were to be assumed by Pfister, and Rowland was to be released therefrom and the balance due paid to Rowland. The papers were written by R. H. Craig, the ■ cashier of the bank. A deed conveying the property was executed by Rowland and wife in which the name of the grantee was not inserted. Instead of closing the transaction at that time, it was suggested that the deed be not delivered until an abstract of title had been furnished and approved; and it was agreed that the contract and deed should be placed in escrow in the bank until the abstract was completed, and the deal was to be closed and deliveries made on or before August 1, 1921. It was a part of the agreement that $500 of the consideration should be held in escrow by the bank until the abstract was approved. As an evidence of this a check was made by Pfister in favor of Rowland for $500. This, too, was placed in the custody of the bank with the other papers. The abstract was furnished and approved, and when Rowland applied to the bank for payment of the $500, represented by the check, the bank refused payment, stating that Pfister did not have sufficient funds in the bank to pay the check. The defendant contends that there is but one question in the case, and that is, Does the evidence show that the check was accepted by the defendant? It is insisted that the petition counts upon the-liability of defendant upon an accepted check, and that upon the evidence there was no acceptance in writing by the drawee under the negotiable instruments act. The plaintiff contends that the petition based liability on the-agreement of the defendant to hold the $500 and to pay it to the plaintiff when the abstract was approved, and that in reliance upon the bank’s promise to pay the $500 plaintiff executed the deed and placed it in escrow. The bank in its answer pleads that the deed, was to be held by it ás security for the payment of the balance of Rowland’s indebtedness, together with $900 that was due to it from Pfister. It seems to be admitted that on August 4,1921, there was a. sufficient amount in Pfister’s account in the bank to pay the check, but it is insisted that there was no acceptance of the check by the bank or a promise to pay it. The petition fairly interpreted counts on the agreement that the contract, deed and money represented by the check were to be placed in escrow with the bank, and that the money was to be paid when the abstract was approved and before the deed was delivered. The action was tried not upon an accepted check but upon the whole transaction, including the violation of the escrow agreement. The abstract was approved within the specified time and the deed was delivered by the depositary without the payment of the money. The bank defended on the ground that the check had not been accepted, and that Pfister had no money on deposit in the bank from which it could be paid. Defendant insists that the check is to be treated as a bill of exchange, governed strictly by the negotiable instruments act, and that not having been accepted in writing, and there being no money in the bank to the credit of Pfister, the bank was under no obligation to the plaintiff. There would be ground for this contention if it were a mere order to pay money on demand out of the funds of the drawer. However, where the check is drawn and deposited under a special agreement, the agreement governs rather than the general rules of commercial paper. The duties and obligations of the bank acting as a depositary are to be determined by the escrow agreement. It assumed to act as a depositary, and if it agreed that the check deposited with the deed would be paid before the delivery of the deed it was under obligation to pay the money before surrendering the deed. An outside agreement relating to the payment of the check wa,s permissible and controlling. (Ballard v. Bank, 91 Kan. 91, 136 Pac. 935; Fourth Street Bank v. Yardly, 165 U. S. 634; Peoples National Bank v. Swift, 134 Tenn. 175; Gruenther v. Bank of Monroe, 90 Neb. 280; Dolph v. Cross, 153 Ia. 289.) Defendant was absolutely bound by the condition under which the deposit was made, and if there was a violation of the escrow agreement the plaintiff is entitled to the damages sustained by reason of its violation. The testimony of the plaintiff is to the effect that the bank or its cashier promised that when the abstracts were approved the $500 of the consideration for the deed, which was withheld, would be paid. There is a conflict in the evidence as to the terms of the agreement, but as the finding is in favor of plaintiff we must accept the evidence most favorable to him. According to that testimony defendant ignored the agreement and delivered the deed, first inserting the name of its own president as grantee and then refused to pay plaintiff, although it is admitted that Pfister had sufficient deposit in the bank to meet the demand. It is said that Pfister owed the bank $900, and that there was an agreement that the deed should be held as security for its payment, and that payment had not been made. In view of the terms of the escrow agreement, as found in the trial court, the depositary had no right to divert any part of this fund to its own use or to meet the obligations of Pfister. In Ballard v. Bank, supra, a quotation is made from a note in 30 L. R. A., n. s., 517, that: “All the authorities are agreed upon the rule of law declared in the above case that a bank which accepts a deposit of money made by a depositary for a special purpose under an agreement that it will pay the amount when needed for that purpose, cannot rightfully appropriate such deposit to discharge the depositor’s indebtedness to it.” (p. 94.) Accepting, as we must, the testimony of plaintiff as to the agreement, it is clear that the defendant violated its duty as a depositary, and that liability attached to it in delivering the deed without requiring the payment of the money represented by the check. This is the necessary result without regard to whether or not it was done for a fraudulent purpose. The holding made sufficiently answers the objections to the admission of evidence, the overruling of the demurrer to plaintiff’s evidence and the instructions of the court. The judgment is affirmed.	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The opinion of the court was delivered by Dawson, J.: The plaintiff, Charles W. Modest, claimed compensation as a Kansas soldier for military service in the world war. His claim was disallowed by the defendant board on the ground that he had failed to show that he was a resident of Kansas at the time he entered the service. Plaintiff appealed to the district court of Montgomery county, which heard all the evidence the parties cared to submit. This included plaintiff’s own testimony and that of his mother who resided in Cherryvale, and the testimony of two women of Cherryvale who had known plaintiff during his boyhood in and about Cherry-vale and who had kept in touch with him and his family after he grew to manhood and removed to California. The evidence for the defendant board consisted in part of matters elicited in the cross-examination of plaintiff, and of certain data set forth in plaintiff’s written application for compensation^ the recitals of his honorable discharge from the army, his enlistment record, and certified copies of records of the war department showing plaintiff’s enlistment was accredited to California, and that his residence at the time of his enlistment was at Richmond in that state. The trial court made a finding that plaintiff was a resident of the state of Kansas at the time he enlisted in the service of the United States army in 1917 and entitled to compensation. Judgment was entered accordingly and the compensation board appeals, complaining that its demurrer to plaintiff’s evidence should have been sustained, and that there was no evidence to support the trial court’s finding which is the basis for the judgment. According to the record, the evidence was to this effect: Plaintiff’s boyhood and early manhood were spent in Cherryvale. He married there, and in 1914 moved to Richmond, Cal., where he established a home and voted as an elector of that state. He served some time in a California regiment on the Mexican border. In March, 1917, his wife died leaving an infant son. In July of that year plaintiff’s mother went from Kansas and lived with him in California until September 21, when she returned to Cherryvale, and brought plaintiff’s infant son with her. After their departure plaintiff took lodgings in a hotel in Richmond and on November 1, 1917, enlisted in the army at Camp Kearney, California. He served as a cook in the 328th U. S. infantry, A. E. F., and was given an honorable discharge at Presidio, San Francisco, July 31, 1919, with travel pay to Camp Kearney. Plaintiff’s application for compensation under the Kansas statute in part recites: “2. Address at time of enlistment, induction or commission: (City) Cherryvale. (State) Kansas. (Street and number) 321 East Sixth street. “3. Present address: (City) Cherryvale. (State) Kansas. (Street and number) 321 East Sixth street. ... “7. Was applicant a resident of the state of Kansas at the time of entering service? (Yes or no) Yes. . . . “14. Was applicant absent from Kansas during any part of the year immediately preceding entering service? (Yes or no) Yes. . . . “17. Where did applicant last vote before entering service? Hopeville, California. . . . “19. Name and address of applicant’s employer at time of enlistment, induction or commission: (Name) Standard Oil Co. (Address) Richmond, California. . . . “22. If applicant enlisted or registered for the draft in another state than Kansas, state why. (Not answered.) . . . “27. Remarks: Eirst wife died March 2, 1917. Mother of applicant took child and belongings of applicant to old home at Cherryvale, Kan., which place applicant considered his place of residence after death of wife, March 2, 1917.” In his oral examination plaintiff testified that the death of his wife broke up his California home and that he decided to return to his old home in Cherryvale. “Q. After you enlisted in Camp Kearney did they ask you where your residence was? A. Yes. “Q. What did you tell them? A. Cherryvale, Kansas. “Q. Did you intend to return there as soon as you got out of the army? A. Yes, sir. “Q. How did it happen you did not return to Cherryvale when you enlisted? A. I wanted to enlist in the same regiment I was in on the border. . . . “Q. Did you consider that [city, Cherryvale] to be your home? A. Yes, sir. ... “Q. Did you consider that to be your home after the death of your wife? A. Yes, sir.” ‘‘Cross-examination. . . . “Q. Now you say you are living at Cherryvale at this time? A. Yes, sir. [This time appears to have been in 1925 according to journal entry of judgment.] . . . “Q. How long have you lived in Cherryvale? A. This last time has been _ close to four months. “Q. Where were you living previous to that? A. In Texas. “Q. You remarried since your discharge? A. Yes, sir. “Q. Did you establish a home in Texas? A. No, sir. “Q. Where did you live? A. I was married in Oakland, California. “Q. Did you go to housekeeping again? A. No, sir. “Q. You had a residence with your wife? A. Yes, sir. “Q. I believe it is disclosed in the records here that you separated from this woman? A. Yes, sir. “Q. Did you come to Cherryvale shortly after your separation? A. No, sir. “Q. Where did you continue to live? A. After we left California we came here; then to Texas. . . . “Q. You voted at several different elections, didn’t you? A. I don’t remember but one, in California. That was at a city election. . . . “Q. Did you live in Kansas at any time during the five years next preceding your enlistment? A. No; I did not live in Kansas. . . . “Q. Did you have in mind enlistment in the army when you broke up housekeeping in Richmond? A. No, sir. “Q. Did you continue to work in your employment [in California] when your mother got the boy? A. Yes, sir. . . . “Q. You had it in mind that you would enlist, but didn’t know when? A. Yes, sir. “Q. Then why didn’t you come back and enlist in Kansas? A. Because I wanted to join the old outfit that I was in before. “Q. Then you did not intend to come to Kansas, and the reason, you say, you wanted to enlist with the bunch out there? A. Yes, sir. “Q. You gave as your residence, Cherryvale, Kan., when you enlisted? A. Yes, sir. “Q. Can you explain to the court why the adjutant general’s office in Washington, D. C., gave Richmond, Cal., as your residence? A. When I left I went to Richmond to enlist and then went to Camp Kearney to enlist with them, and the officers asked why I gave Cherryvale as my home and why I came out to enlist there. I was out there and then my mother and boy came back to Cherryvale, my home, and that’s why I gave it as my residence. They asked me where I worked and I said Richmond. . . . “Q. In fact, you were turning the custody of your boy over to your mother? A. Yes; and intending to come home later as soon as I could. “Q. And since your discharge and up until about four months ago you have not lived in Kansas? A. No; I lived in and out of Kansas. Was here off and on.” Given generous credence and all the favorable inferences to which plaintiff’s evidence is entitled — since the trial court dealt with it in that mood — can it be said that plaintiff was a resident of Kansas at the time he entered the military service of the United States, on November 1, 1917? We think not. Our statute grants compensation only to soldiers who were bona fide residents of Kansas at the time they entered the service. (R. S. 73-102.) This applicant was not then a resident of Kansas. He had not resided in Kansas at any time for five years prior to his enlistment. He so testified. Moreover, his testimony merely was that when he. got through with his army service — not when he entered it — he intended to become a resident of this state. Furthermore, his testimony shows that he did not even carry out that intention. When he did retire from the army he married and settled down in California for a time, and not until a few months prior to the trial of this action — several years after his discharge from the army — -did he become a resident of Kansas. It follows that plaintiff has no just claim against the defendant board for compensation. Nor is this a case where conflicting evidence had to be weighed and its preponderance determined, and where this court would be bound by the trial court’s finding of fact. Here the evidence was altogether insufficient to support the judgment. It follows that the judgment must be reversed and the cause remanded with instructions to enter judgment for defendants. It is so ordered.	[ -16, 106, -27, 95, 10, 96, 42, -120, 120, -95, 39, 83, 105, -53, 17, 107, 106, 13, 64, 121, -10, -109, 82, -63, -14, -13, -7, -43, -71, 92, 112, -44, 77, 32, 10, -43, 98, 74, -59, 28, -50, -108, -87, -56, 91, 0, 52, 127, 54, 75, 113, -97, -13, 42, 29, -45, 40, 44, 123, -70, -127, -47, -126, -123, -20, 24, 35, 34, -98, 71, 80, 63, -40, 17, -128, -3, 91, -90, -122, 52, 35, -119, 9, 110, 99, 49, 53, -17, 104, -119, 47, -6, -113, -27, -106, 80, 72, 36, -106, -103, 125, 48, 10, 112, -6, 20, 28, 44, 15, -113, -124, -77, 79, 52, -108, -125, -21, -123, -75, 113, -51, -94, 92, 67, 120, -69, -113, -38 ]
The opinion of the court was delivered by Dawson, J.: This was an action to recover a real-estate dealer’s commission on the exchange of an apartment building in Wichita for land in western Kansas. Plaintiff’s petition alleged that they had been employed by de-fendant R. T. Ingels to find a purchaser or a satisfactory trade for the apartment house. Ingels gave plaintiffs the exclusive right for five months to sell or negotiate a trade for the property, and plaintiffs were to receive $10,000 as commission in the event of their success. The plaintiff, Sam T. King, senior member of plaintiff’s firm of real-estate dealers, presented the proposition to William Moncrief, of Dodge City, owner of much western Kansas land. King also presented the matter to George D. Cochran and J. C. Burrus, of Dodge City, real-estate dealers and agents, for the disposal of Moncrief’s. land. Moncrief became interested, and he and his Dodge City agents promised to investigate the Wichita property to determine if a trade could be made. Plaintiffs immediately advised Ingels that they had interested Moncrief, they gave him Moncrief’s name and the names of his agents, and also the location and description of Montcrief’s lands, and told him that Moncrief and his agents would soon come to Wichita to see the apartment house. Plaintiffs further alleged that shortly thereafter, Moncrief, Cochran and Burrus went to Wichita and effected an exchange of properties with Ingels, but at the same time they all entered into a conspiracy with the latter to defraud plaintiffs out of their commission. Accordingly the defendants agreed to report to plaintiffs and did report to them that Moncrief was not satisfied with the Wichita property and that no trade could or would be made. In furtherance of the same conspiracy, Ingels and Moncrief kept the deeds exchanging their properties off the records, and Moncrief retained the same agent to collect the rents on the apartment house who had-theretofore collected those rents for Ingels. Plaintiffs further alleged that about a year elapsed before they learned that the negotiations instituted by them had culminated in an exchange of properties between Ingels and Moncrief, and that at the time such -trade was effected Ingels was solvent and could have paid, or have been made to pay, the commission to which plaintiffs were entitled, but ere plaintiffs learned that the trade had been effected Ingels had become insolvent. The petition concluded with a prayer for judgment against the defendants for the $10,000 which ■ plaintiffs were prevented from collecting from Ingels by the fraudulent acts of Moncrief, Cochran and Burrus. This action was begun in the district court of Reno county, and summons was issued for J. C. Burrus and service made on him in Reno county. Summons was issued for George D. Cochran and William Moncrief to Ford county, and service made on said defendants in Ford county. Summons was issued for R. T. Ingels to Sedgwick county, and served on him in Sedgwick county. Burrus filed a lengthy answer making certain admissions and denying that he had any part in the alleged conspiracy to defraud plaintiffs out of their commission, and set up certain allegations in the nature of a claim against Moncrief for his own services in effecting the exchange of properties between Moncrief and Ingels. Defendants Cochran and Moncrief filed this pleading: “Come now George D. Cochran and William Moncrief, named as defendants in the above-entitled action, and make a special appearance herein for the purpose of this motion, and this motion only, and move the court to quash and set aside the service of summons upon these defendants, for the following reasons to wit: “1. These defendants reside in Ford county, Kansas, and the only service of summons had herein upon them was in Ford county, Kansas; the only defendant in the above entitled action who has been served with summons in Reno county, Kansas, is the defendant, J. C. Burrus; the petition herein fails to state any cause of action against this said J. C. Burrus, and these defendants, or any of them; and the service of summons on the said J. C. Burrus in Reno county, Kansas, did not confer jurisdiction to send summons to Ford county, Kansas, to be served upon these defendants. “2. No cause of action was rightly brought or begun in Reno county, and the serving of summons on-these defendants in Ford county, Kansas, has not given the Reno county district court any jurisdiction over these defendants.” Defendant Ingels filed a pleading entitled “Special Appearance and Motion,” in which he stated that he was a resident of Sedgwick county, and in other particulars it contained substantially the same recitals as those urged by defendants Cochran and Moncrief. On the presentation of these motions, the trial court quashed the summons issued to Ingels, Cochran and Moncrief, on the ground “that the petition does not state any cause of action against J. C. Burrus, the defendant summoned in Reno county.” Plaintiffs appeal. Was this ruling correct? It is elementary law that a plaintiff cannot ordinarily get an unwilling adversary into court without valid personal service upon him in the jurisdiction in which the action is begun, nor can he accomplish that end by joining as defendant some mere nominal party upon whom personal service can be-had in that jurisdiction when the plaintiff has in fact no bona fide cause of action against the defendant so nominally joined. (Brenner v. Egly, 23 Kan. 123; Bullman v. Hulse, 32 Kan. 598, 5 Pac. 176; 33 Kan. 670, 7 Pac. 210; Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479, syl. ¶4; Hembrow v. Winsor, 94 Kan. 1, 145 Pac. 837.) To make the service in this case good as to Cochran, Moncrief, and Ingels, it was essential that a bona fide cause of action be stated in plaintiffs’ petition against Burrus and that the action be rightly brought against Burrus in Reno county. (R. S. 60-2502.) Otherwise it would be necessary for plaintiffs to sue these other defendants in the county in which some one of them resided or might be summoned. (R. S. 60-509.) And so if defendants Cochran, Moncrief and Ingels had limited their motion to quash to a simple challenge of the court’s jurisdiction, the ruling of the trial court in their favor might have been unassailable. But these defendants did not so limit the recitals of their motion to quash. They pleaded— “The petition herein jails to state any cause of action against the said J. C. Burrus, and these defendants, or any of them!’ The italicized recital in this pleading was in substance a demurrer to plaintiffs’ petition. It raised a question of law on the merits of the action, and invoked the judgment of the court thereon; and in consequence the filing of such a pleading had the effect of a general appearance. (Wells v. Patton, 50 Kan. 732, 33 Pac. 15; Carter v. Tallant, 51 Kan. 516, 519, 32 Pac. 1108; Meador v. Manlove, 97 Kan. 706, 710, and citations, 156 Pac. 731; Makemson v. Edwards, 101 Kan. 269, 166 Pac. 508. See, also, citations in Butter Tub Co. v. National Bank, 115 Kan. 63, 71, 166 Pac. 508.) It follows that the judgment of the district court must be reversed and the cause remanded for further proceedings. The judgment is reversed.	[ 112, 122, -16, 46, 26, 96, 46, -72, 107, -79, -92, 95, -55, -34, 4, 117, -46, 29, -48, 107, -28, -78, 22, -85, -46, -77, -47, -51, -71, 93, -12, -33, 72, 32, -54, -99, -122, -94, 86, 28, -98, -95, 8, -32, -33, 64, 48, 11, 16, 75, 113, -82, -13, 40, 25, -53, 109, 44, -18, 57, 113, -79, -85, -123, -1, 7, 32, 38, -98, 39, 88, 78, -112, 116, 8, -24, 91, -74, -106, 116, 77, -55, 8, 46, 102, 35, -111, -23, -16, -100, 46, -37, -115, -26, -79, 88, 2, 65, -66, -100, -43, 0, 3, -10, -2, 29, 25, 108, 7, -113, -106, -95, 5, 122, -123, -101, -5, 7, -84, 112, -113, -26, 77, 87, 58, -101, 14, -48 ]
The opinion of the court was delivered by Burch, J.: The action is one for a declaratory judgment determining a controversy between the board of education of the city of Pratt and the taxing officials of Pratt county, relating to the levying of taxes for the county high-school fund. Section 1 of chapter 235 of the Laws of 1925 reads as follows: “That section 72-3005 of the Revised Statutes of Kansas for 1923 is hereby amended to read as follows: Sec. 72-3005. It shall be the duty of the county superintendent of public instruction on or before the 25th day of July in each year to certify to the board of county commissioners the number of teachers employed in the several high schools complying with the provisions of this act in the county during the year ending on the thirtieth day of June preceding, counting, for the purpose of this act, each superintendent and each principal as one teacher, and the county commissioners shall levy a tax, not in excess of the limit prescribed for this purpose by law, which levy shall be sufficient to produce an amount equal to $1,200 multiplied by the number of teachers employed during the preceding year in the high schools complying with the provisions of this act, which number shall have been determined and certified bj' •the county superintendent as herein provided; and in case the county com missioners shall fail to make such levy, then the county superintendent of public instruction shall make a suitable levy and shall certify the same to the county clerk, who shall enter upon the tax rolls the levy so made by the county superintendent.” The county superintendent made the proper certificate. The county commissioners made a levy of 1.148 mills, and the county superintendent then made a levy of 1.168 mills. On reconsideration, the county superintendent made and certified a levy of 1.35 mills, the legal limit, such levy being necessary to produce the statutory fund. The first levy by the county superintendent was extended on the tax rolls. The county clerk claimed certificate of the second levy reached her too late to permit revision of the tax rolls before delivery to the county treasurer, and the levy of 1.168 mills was collected. The result was the 1925 fund was short, and plaintiff contends the deficit should be made up by proper levy in 1926. The amount to be raised is the product of $1,200 multiplied by the number of teachers. It is the duty of the county commissioners to make a levy sufficient to produce that sum. If the county commissioners fail to make a levy sufficient to produce that sum, the county superintendent shall make a suitable levy, that is, a levy suitable to produce that sum. (Board of Education v. Shepherd, 90 Kan. 628, 633, 135 Pac. 605.) The legislature has determined the needs of the schools, the statute is mandatory throughout, and neither the county board nor the county superintendent has any discretion in the matter. The duty to raise the count}'- high-school fund for 1925 was not performed, was not discharged by partial performance, and continues until a levy is made which will make up the deficit resulting from the insufficient levy. (School District No. 6 v. Books County, 115 Kan. 631, 223 Pac. 818.)	[ -12, -18, -12, 124, 10, 66, 90, -122, 89, -95, 36, 83, -19, -40, 4, 125, -13, 101, 84, 104, -43, -77, 22, 9, -128, -13, -7, -33, -69, 95, -90, -34, 78, 48, -22, -43, 38, 66, -59, 84, -114, 2, -87, -46, 93, 64, 60, 97, 114, 15, 49, -66, -13, 40, 28, 75, -24, 36, -39, -87, -127, -15, -102, -107, 111, 19, -79, 36, -98, -125, 64, 46, -100, 57, 12, -24, 123, -90, -62, 84, 1, -87, 9, -28, 102, 81, 61, -19, -76, -120, 14, -13, 45, -26, -109, 89, -30, -114, -66, 31, 116, 18, 7, 118, -29, -59, -97, 108, -114, -114, -60, -77, -115, 101, -118, 7, -21, 3, 48, 65, -59, 62, 94, 71, 18, -69, 86, -68 ]
The opinion of the court was delivered by Burch, J.; Defendant, who was agent of the White Eagle Oil and Refining Company, was convicted of embezzlement of -the company’s funds, and appeals. Defendant represented the company at its Coats station. He worked under an accounting system which made it impossible for misappropriation of money to escape ultimate detection. Gasoline, kerosene, oil and grease 'were delivered to him in measured and weighed quantities. Numbered sales tickets, whether for cash or credit, were made in triplicate, one for the customer, one for the company, and one for the agent’s own records. Weekly reports were made in duplicate, one for the company .and one for the agent’s own records. The weekly report listed the sales tickets consecutively by number. Opposite each number was given the customer’s name, the commodity sold, and the terms of sale, whether for cash or credit. The company’s sales tickets were attached to the company’s copy of the report when it- was sent in. Besides this, the agent made in duplicate a collection and remittance sheet, showing credit ticket number, customer’s name, amount collected, and amount of cash received on cash sales tickets, as shown by the sales report. From the total cash shown by the collection and remittance sheet the agent took the amount of his expense vouchers, and sent to the company a draft for the balance with the company’s copy of the sheet. By this means the company was enabled to keep an account of credit sales to each customer, debiting him from the sales tickets and weekly reports, and crediting him from the collection and remittance sheets. When inevitable checking up occurred, the books of the company showed the following customers owed the following amounts: Miller .............................I................... $515.98 Hammond ............................................. 326.30 Smith and Parish........................................ 395.50 Cater ................................................. 21.27 Knacksteadt ........................................... 21.75 These customers in fact owed nothing. They had paid defendant in full. Hammond produced his checks. These checks had been deposited by defendant in the First National Bank, to the company’s credit, and the company had received the deposit. The same was true of other customers; but by manipulation of the accounting system, defendant had held out $1,777.65 of the company’s money, and his inventory was short $485.48. Defendant’s shortages were fully proved. The state’s evidence, was that lists of customers’ tickets totaling $1,777.65 were presented to defendant, and he admitted he had received the money and had not accounted for it. " His explanation was that he had expected to receive an inheritance, and believed he would be able to make good the deficit. At the trial, defendant as a witness in his own behalf did his best to befog the issue by evasion, equivocation, and irrelevant responses to interrogatories. He kept insisting the money on the Miller, Hammond, and other checks deposited in the bank, went to the company, but he would not say he reported payment of the accounts to the company. He would say he sent to the company all the money he received, and then he would admit he did not send in some items he received. Finally, he was given an opportunity to point out, from his own records, report of collection of forty-seven credit-sales tickets. He made search, found no mistakes or changes-in the records, and was obliged to confess failure to find report of: the collections. The bank records merely showed deposit of company money, not money received from Miller, Hammond, or the others, and withholding report of collection of their accounts was defendant’s method of concealing from the company misappropriation of funds to the amount of funds which he received and did not report. In checking up defendant’s accounts, separate demands were made upon him for sums of money collected and not reported in amounts identified by the Miller, Hammond, and other accounts. Defendant’s division manager testified as follows: “Q. What amount was it that he . . . admitted that he had collected from Miller on this account and had not turned in to the company, the I. A. Miller account? A. $515.98 on that account. “Q. What amount — what did you say to him when you asked him for the money? What did you say? A. I says, ‘Shorty, you have collected this money. We want it. It belongs to the company. The company wants their money.’ “Q. What money did you refer to by this money? A. The total account of I. A. Miller. “Q. How much was it? A. $515.98.” In the process of checking up, defendant claimed commissions were due him amounting to $370. He was told the company would probably arrange to apply the amount on some of the accounts for which he owed the company. When he checked out on January 9, 1925, he signed an acknowledgment of goods received amounting to $485.48, which was his stock shortage. His commissions in fact amounted to $407.73, and that sum was credited on the stock shortage. The statute reads as follows: “Any agent ... of any corporation . . . who shall . . . convert to his own use, . . . without the assent of his employer, any money, bank bills, treasury notes, goods, rights in action, or valuable security or effects whatsoever, belonging to any such . . . corporation . . . which shall have come into his possession or under his care by virtue of such employment, . . . shall upon conviction thereof be punished in the manner prescribed by law for stealing property of the kind or value of the articles so embezzled, . . . or if any agent shall, with intent to defraud, neglect or refuse to deliver to his employer or employers, on demand, any money, bank bills, treasury notes, promissory notes, evidences of debt or other property which may or shall have come into his possession by virtue of such employment, office or trust, after deducting his reasonable or lawful fees, charges or commissions for his services, ... he shall upon conviction thereof be punished in the manner provided in this section for unlawfully converting such money or other property to his own use.” (R. S. 21-545.) The information contained several counts, identical except as to amount of money embezzled. The third count on which defendant was convicted reads as follows, omitting the introductory portion: “Miles R Eary, then and there being an agent, servant and employee of the White Eagle Oil and Refining Company, did then and there receive into his possession by virtue of such employment the sum of $515.98 belonging to the said White Eagle Oil and Refining Company, and on due demand being made therefor by the White Eagle Oil and Refining Company, the said Miles R. Eary did unlawfully and feloniously, with intent to defraud, neglect and refuse to deliver to his said employer on demand the said sum of $515.98, and did unlawfully and feloniously convert the same to his own use.” It will be observed the count charged embezzlement of a sum of money equal to the Miller account. Other counts charged embezzlement of sums of money equal to the accounts of Hammond, Smith and Parish, Carter and Knacksteadt. Defendant contends the information was defective because it did not negative assent of the company. Assent of the company was negatived by charge of unlawful and felonious conversion with intent to defraud. (State v. Bauman, 98 Kan. 757, 161 Pac. 591.) Defendant further contends the information was defective because it omitted “after deducting his reasonable or lawful fees, charges or commissions for his services.” In the case of State v. Hayes, 59 Kan. 61, 51 Pac. 905, the syllabus reads as follows: “To charge embezzlement by an agent for failing or refusing to pay or deliver to his employer, on demand, money or property which comes into his possession by virtue of his employment, as .defined in the latter part of section 88 of the crimes act, an averment of demand and refusal is essential; and, also, that the amount demanded is due, after deducting reasonable or lawful fees, charges or commissions for the services of the agent.” These statements were made in response to a challenge of the information by a motion to quash. In the present case no motion to quash was filed. The information does not show demand for a sum greater than was due after deducting commissions, or show that if commissions were deducted from the amount demanded there would be no liability; and receiving into possession, demand, refusal to pay, and felonious conversion with intent to defraud, having been directly charged, the information was not fatally defective. Defendant pleaded to the charge without objection. Apparently he did not regard the defect as tending to prejudice his substantial rights on the merits. (R. S. 62-1011.) The event of the trial demonstrated he suffered no prejudice to his substantial rights on ac count of the manner in which the offense was stated in the information, and prejudice to substantial rights on the merits is the test of sufficiency, whether the defect be one of form or substance. (State v. Powell, 120 Kan. 772, 786, 245 Pac. 128.) The court had no difficulty in pronouncing judgment on conviction according to the rights of the case (R. S. 62-1010), and on .appeal this court must give judgment without regard to defects which do not prejudice substantial rights (R. S. 62-1718). Furthermore, the information was good, even as against a motion to quash. The rule that exceptions contained in the clause of a statute creating an offense must be negatived, was adopted by this court at a very early day, from Archbold’s Criminal Pleading and Evidence, and regarded form rather than substance: “The law on this point is plain and is well stated in Archhold’s Criminal Practice and Pleading, page 118, as follows: 'If there be any exception contained in the same clause of the act which creates the offense, the indictment must show negatively that the defendant or the subject of the indictment does not arise within the exception. If, however, the exception or proviso be in a subsequent clause or statute, or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference, it is in that case matter of defense for the other party, and need not be negatived in the pleading.’ ” (State of Kansas v. Thompson, 2 Kan. 432, 436 [1864].) We now regard substance instead of form, and unless the exception, wherever found, inheres so integrally in the offense that liability would necessarily be precluded unless the exception were expressly negatived, it is a matter of defense. The statute covers cases of embezzlement not involving fees or charges or commissions deductible from the money received. In such cases, the clause “after deducting his reasonable or lawful fees,” or charges, or commissions, has no place in the information, and would not be true if inserted. Therefore the clause is not indispensable to an information; and whether in any case the demand was for a sum which did not make allowance for fees, is a matter of defense. The syllabus and the corresponding portions of the opinion in the case of State v. Hayes, 59 Kan. 61, 51 Pac. 905, are modified to conform to these views. Defendant was guilty of but one crime — failure to pay money after demand for it — and the state was required to, elect upon which count it would rely for conviction. The county attorney made the following election: “The state elects to stand on the third count, covering the shortages of Knacksteadt Brothers, $21.75; Smith & Parish, $395.50; I. A. Miller, $390.20 [$515.98]; J. E. Hammond, $326.30, and I. F. Cater, $21.27.” The amount $390.20 does not appear elsewhere in the record, has no relation to the Miller shortage or anything else in the case, did not change the proved amount of the Miller shortage, and is to be regarded as a stenographic error. Defendant criticizes instructions given the jury that it was not necessary the demand should be for the correct and exact amount of money defendant was under obligation to pay, that it was essential defendant should have received into his possession the sum of $515.98, or some part thereof, and after due demand, neglected and refused to deliver the sum of $515.98, or some part thereof, after deducting from the amounts received by him his reasonable or lawful commissions. The instructions were correct, but if they were not so, they did not affect the result. Defendant was not prosecuted for failure to deliver to the company money received by him from Miller, or from Hammond, or from the others whose money defendant collected but did not report. He was prosecuted for failure to deliver to the company sums of money. Specific sums which had not been accounted for were identified by the customers’ accounts. “The Miller shortage” and “the Miller account” were merely labels for $519.98. Demand was made for that sum. That sum was due over and above defendant’s commissions. The jury found defendant embezzled $515.98, which he received by virtue of his employment, and which, with intent to defraud, he refused to deliver after due demand. The verdict was amply sustained by the evidence, and the judgment of the district court is affirmed.	[ 48, -4, -55, -100, 58, 96, 58, -102, 73, -63, -75, 115, -51, -61, 21, 57, -29, 93, 116, 98, -42, -77, 7, -29, -58, -13, -71, -59, -76, 90, -26, 84, 12, 32, -54, -43, -82, 66, 67, 28, -58, 5, -72, -22, 121, 16, 52, 43, -75, 75, 113, -116, -29, 44, 28, 75, 107, 44, 121, -87, -48, -7, -86, 5, 111, 50, -110, 4, -72, 7, -56, 46, -100, 49, -128, -23, 123, -90, -122, 116, 47, 57, 9, 34, 98, 17, 21, -81, -20, 72, 38, -34, -99, -89, -112, 120, 3, 101, -97, -99, 106, 18, 7, -2, -22, 21, 91, 108, 19, -101, -10, -126, 79, 71, -100, 26, -17, -95, 50, 113, -51, -94, 92, 71, 122, 27, -105, -108 ]
The opinion of the court was delivered by Harvey, J.: This is an action on an insurance policy against theft of an automobile. Mr. James Stewart owned an automobile and took out insurance on it in the sum of $500 against theft. A few months later he planned to go to Colorado to be gone two months. He left his automobile with W. E. Brown, a garage man and Chevrolet agent, under the agreement that Brown might sell it and retain all he could get for it above $433, and in the event Brown did not sell it if Stewart desired to do so he could trade it in on a new Chevrolet at a credit of $450. While Stewart was gone a man giving his name as Arthur Jones came to Brown’s garage and talked of buying a car. Brown priced this car to- him at $450. Jones said he represented a cattle company and wanted to do some driving in that neighborhood and would like to try the car out for a few days. Brown agreed he could use it if he would return it to the garage each night, and if he did not buy it, to pay $8 per day for the use of it. Jones drove the car away. That evening he called up from another town and said it did not suit his plans to return to the garage that night, and got permission not to do so. That was the last heard of Jones or the car. Brown reported the loss to the agent of the insurance company, who notified the company, and liability was denied. When Stewart returned he took no step to recover on the insurance policy, but insisted that Brown reimburse him for the car. He finally made a settlement with Brown by which he received $320 in payment of his car, and assigned the insurance policy to Brown. Brown sued on the policy. The trial court sustained a demurrer to his evidence, and he has appealed. Considering the provisions of the insurance policy and the record before us there are several reasons for upholding the judgment of the court below. It will be necessary to mention but one of them. The policy contained the provision, among others, that the insurance company would not be liable for loss which might occur while the .automobile insured was being rented under contract or lease. The loss did occur while the automobile was being used under a contract of rental or lease. Hence, there can be no recovery. It is essential, of course, to a recovery upon any insurance policy that the loss be one which is indemnified against by the terms of the policy. Here the loss occurred under- circumstances which were not indemnified against,by the terms of the policy. The judgment of the court below is affirmed.	[ -16, 122, 88, -84, 26, -96, 42, 90, 85, -96, 39, -105, -23, -57, 20, 99, -10, 125, 117, 35, -44, -93, 7, -109, -98, -13, -45, -59, -79, 73, 110, -34, 76, 32, -126, 21, -26, 88, 65, -44, -50, 15, -72, -27, -35, 120, 48, 72, 16, 75, 65, -97, -61, 38, 17, -49, 41, 40, -21, -95, -16, -16, 11, -113, 111, 20, -111, 100, -98, 39, -8, 12, 20, -111, 16, -24, 115, -82, 6, -12, 111, -103, -120, -94, 103, 0, 49, 111, -4, -104, 14, -30, 15, -122, 86, 88, 11, 1, -97, -99, 123, 16, 5, 124, -14, 84, 29, 36, 3, -113, -108, -93, -23, 114, -98, 9, -2, -125, 38, 96, -49, -30, 77, 69, 126, 27, 22, -34 ]
The opinion of the court was delivered by Dawson, J.: This lawsuit arose over plaintiff’s questioned right to a private roadway over the north end of defendant’s golf course. The facts were these: Prior to February 6, 1917, Mary Foster and John R. Foster, common grantors of these litigants, owned 240 acres of land in Mission township, Johnson county. They resided on eighty acres of that property defined as SW1/^ 18-12-25 east, and on February 6, 1917, they leased to the Milburn Golf and Country Club 140 acres adjacent to their home eighty on the east, defined thus: Wy2 SE^L and Ey2 SW^ (less twenty acres described), 18-12-25 east. The term of the lease was for ten years, from April 1, 1917, until April 1, 1927, and contained the following reservation: “The lessors hereby reserve a'thirty-foot roadway along the north side of said land, or a roadway as now used in going from their residence to and from Milburn station, on the Strang Line, and agree to use gates entering said land if desired by the lessees.” On September 6,1919, the Fosters executed to defendant a written option of purchase of the leased premises, together with the twenty acres reserved from the lease at t-lie time of its execution in 1917. The consideration for the option was one dollar, and it was stipulated that the grantee should have the exclusive right of purchase for five years at $64,000 on specified terms of payment, and that the grantors would convey the property “free and clear.” The option also referred to the existing lease and provided for graduated additions “to the rental provided in the lease now held by it [optionee and lessee] on one hundred and forty acres of the above-described premises” during the five-year term of the option, and that the defendant optionee and lessee should have the use of the twenty acres reserved from the original lease of 1917.' On October 8,1919, a month after the defendant obtained the five-year option, plaintiff purchased the eighty acres which theretofore had been the residence property of the Fosters, and in the general warranty deed of conveyance the grant was described in terms of government survey: “Together with the right and easement to use for right-of-way purposes a strip of land thirty feet wide over the north end of the Milburn Golf and Country Club as the same is set forth in grantee’s lease, said Milburn Golf and Country Club, with all the appurtenances and all the estate, title and interest of the said parties of the first part therein.” Pursuant to the terms of the original lease of 1917, the Fosters, common grantors of these litigants, used the reserved thirty-foot strip along the north end of defendant’s golf grounds as a way of access to their residence property; and when plaintiff purchased the property in October, 1919, and thereafter he used the thirty-foot strip as his grantors had done and in accordance with the terms of his deed of conveyance. Plaintiff also, with the knowledge and acquiescence of defendant, spent a considerable sum of money in improving the private roadway, cutting the brush at an expense of $175, and grading the road and placing thereon several thousand yards of cinders at an expense of over $1,600. There was an informal, tentative agreement between plaintiff and the president of the golf club to the effect that since the members oil the golf club used the roadway much more than plaintiff and made ruts in it which necessitated a continual expense to plaintiff, the golf club should pay part of the expense of maintenance of the roadway, but nothing came of it. The fact that plaintiff had acquired a grant of an easement for a way of convenience to his residence was notorious and well known to the officers and members of the defendant club, and so, too, was the fact of plaintiff’s expenditures for the improvement of the roadway. In 1922, some three years after plaintiff acquired the property to which the easement was an appurtenance, plaintiff, at the suggestion of the managing committee of the golf club, took steps to keep the general public from using the roadway as a public highway, and with the approval of the golf club’s committee, he put up signs at the entrances to the roadway. Those signs read: “This is not a public thoroughfare, but a private road for the exclusive use of the undersigned and his guests, and for members of the Milbum Golf and Countiy Club. A. C. Jobes.” On June 7, 1923, the golf club elected to exercise the option of purchase granted to it in 1919, and on July 7, 1923, a deed of conveyance from John R. Foster and the heirs of Mary Foster was executed to a trustee for the golf club. Some time later, date not shown, defendant undertook to deprive plaintiff of the use of his private roadway. This lawsuit followed. Plaintiff’s petition set up the pertinent facts, and he prayed that he be protected in his easement and for a perpetual injunction against defendant, its officers, servants and employees, restraining them from interfering with plaintiff’s use of the thirty-foot strip across the north end of the golf club property, and plaintiff also prayed for a mandatory injunction requiring defendant to keep the private roadway and easement open for the plaintiff’s use. Defendant’s answer joined issues on various matters not now ma terial, and set up its lease of February 6, 1917, its option of purchase of September 6, 1919, and its purchase of the golf club property in June, 1923, and emphasized the point that the option contract of 1919— “Made no reservation or exception of a roadway, and that the land described in said option includes the tract of land in which the plaintiff claims to have acquired an easement for right-of-way purposes.” Defendant also alleged (and it was not disputed) that its option of purchase was filed for record in the office of the register of deeds on September 13, 1919, some three or four weeks before plaintiff purchased the Foster residence property with the easement pertaining thereto which is the subject of this action. Trial by the court; evidence heard at length; findings of fact and judgment thereon in favor of plaintiff; defendant’s motion for a new trial overruled; appeal. In behalf of defendant it is urged that Jobes had record notice of defendant’s option at the time he purchased the property and its appurtenant easement of a private roadway. It is also argued that plaintiff had actual notice of defendant’s notorious possession of the roadway and actual notice of defendant’s option to purchase. It is further argued for defendant that when defendant exercised its option and did purchase the property its rights related hack to the date of its option. Around these points of argument, well fortified with excerpts from decided cases, defendant endeavors to persuade us that the trial court’s judgment should be overturned. However, these contentions of defendant altogether ignore the significance of certain pertinent facts which were bound to make a persuasive appeal to the court of equity. Neither litigant was wanting in notice or knowledge of the rights of the other party. Plaintiff knew defendant had an option to purchase the golf grounds and twenty additional acres. He knew the Fosters had reserved a roadway over the north end of the golf grounds for the use of the west eighty acres which constituted their place of residence. Defendant also knew that the Fosters had specifically reserved out of the lease this particular private roadway and knew it was dealt with and recognized by the Fosters as an appurtenant way of convenient access to and from their eighty-acre residence property — as an easement over the golf grounds leased to defendant. Defendant knew that some four weeks after it had acquired an option to purchase the golf grounds “free and clear,” plaintiff had purchased the west eighty acres, together with its appurtenant easement, and knew that the Fosters’ deed to plaintiff contained an express grant of the easement for a roadway over the north end of the land to which defendant held a lease and option to purchase. Defendant also knew that plaintiff exercised the right to use the roadway. It. knew of and acquiesced in his draining and grading the roadway, cutting the brush on it, and causing it to be improved with hundreds of loads of cinders, and that it had been a matter of informal discussion between plaintiff and defendant’s president that the defendant should contribute to the improvement and maintenance of the roadway, and defendant knew and approved of plaintiff’s assertion of his personal, private right as against the public in the use of the roadway. Giving all these incidents their proper significance, this court is inclined to hold that the grant of the option to purchase the golf grounds was no broader than the grant of the lease, and that the Fosters’ obligation to convey the leased premises “free and clear” was not fairly susceptible of an interpretation that the thirty-foot strip expressly reserved in the lease for the convenient use of the adjacent eighty acres on the west was intentionally eliminated in the option by the words “free and clear.” The option contract, fairly construed, discloses that aside from the twenty acres not here concerned, it was the intention of the Fosters and the defendant that the relation of lessor and lessee could be .altered at the option of defendant into that of grantor and grantee of the identical property leased to defendant in 1917. We say the option contract is fairly susceptible of that construction. Moreover, and presenting a particular appeal to a court of equity, was the fact that defendant saw plaintiff enter into possession of that private roadway under his deed of 1919 which expressly conferred the use of the private roadway on plaintiff in language substantially similar to that in which that identical roadway had been reserved from the lease granted to defendant in 1917; and for nearly four years defendant suffered plaintiff to exercise dominion over the private roadway, cut the brush on it, grade and improve it at a cost of $1,600, without protest or claim of adverse right; and under elementary principles of estoppel the defendant cannot be heard to deny plaintiff’s easement for a private roadway. So whether this controversy is disposed of by fair interpretation of the written instruments under which these rival litigants claim through a common grantor, or under principles of equitable estoppel, this court is bound to hold that the trial court did not err, and its judgment is affirmed.	[ -15, 123, -36, -116, -40, 104, 40, -103, 107, -8, -89, 83, -113, 72, 5, 109, -18, 61, 69, 121, -25, -77, 23, -126, -110, -13, -77, -35, -87, 77, -10, 71, 72, 116, 10, 21, -62, -102, -51, 28, -114, -123, -69, 96, -39, 64, 52, 91, 80, 79, 17, 31, -13, 44, 49, -61, 41, 44, -5, 57, -111, -8, -65, -123, 126, 19, 33, 69, -100, -125, 72, -86, -112, 53, -120, -8, 83, -74, -42, 116, 13, -103, 40, -90, 102, 33, -31, -49, -8, -104, 14, 122, 13, -90, -76, 88, -30, 72, -76, -99, 88, 16, 71, 126, -18, 21, 25, 104, 69, -117, -108, -77, 15, 124, -110, 0, -9, 7, 49, 96, -53, 102, 76, 67, 54, -109, -113, -104 ]
The opinion of the court was delivered by Marshall, J.: The plaintiff, a soldier in the World War, filed his application for compensation under the soldiers’ compensation law. The board denied his application on the ground that he failed to establish that his residence was in the state of Kansas at the time he entered the service. An appeal was taken to the district court, which held that the plaintiff was not a resident of the state of Kansas at the time he entered the army for service in the World War, and rendered judgment against him. From that judgment he appeals to this court. From the statement that has been made, it can readily be seen that the only question for the district court to determine was the place of residence of the plaintiff at the time he entered the army. He was born in Kansas, became an orphan at an early age, and was placed in an orphans’ home. From there he went to the home of William Fasse in Geary county, where he lived until he grew to manhood. From that place he went to Nebraska and worked as a farm hand for some considerable time, and there enlisted in the National Guard of that state, in ’ which • organization he served through the World War. At the close of the war, he returned to the home of William Fasse and always claimed Kansas as his place of residence. From the evidence, the court, found that the plaintiff “was not a resident of the state of Kansas at the time of the outbreak of the World War, April 6,1917.” It should be noticed that the law bases compensation on residence at the time of entering the service, not at the outbreak of the war. The general finding of the court was against the plaintiff, which necessarily included the finding that he was not a resident of the state of Kansas at the time he entered the army for service in the World War. The case falls within the rule declared in Baldwin v. Soldiers’ Compensation Board, 117 Kan. 129, 230 Pac. 82, where this court said: “The evidence did not show — to the satisfaction of the trial court, at least— that plaintiff was a bona fide resident of Kansas at the time he entered the army. Indeed, the evidence to which the trial court gave credence was to the effect that plaintiff was not then a resident of Kansas. Since there was some competent evidence to support the trial court’s finding of fact, its decision and judgment cannot be disturbed.” The judgment is affirmed.	[ -16, -22, -11, 95, 10, 96, 34, -112, 112, -96, 39, 91, 109, 74, 5, 105, 107, 45, 97, 120, -51, -73, 70, -53, 114, -77, -21, -43, -72, 93, -12, 52, 76, 32, 74, -43, 102, -54, -123, 92, -50, -124, -87, -55, -47, 64, 52, 111, 30, 74, 17, -97, -5, 106, 20, -47, 41, 44, -37, -72, -63, -47, -114, 7, -3, 20, 51, 6, -108, 71, 80, -82, -104, 17, 64, -19, 123, 36, -122, 52, 99, -103, 32, 102, 99, 49, 33, -22, 124, -71, 46, -16, -113, -25, -105, 80, 67, 76, -106, -99, 127, 96, 70, 112, -22, 5, 29, 108, 15, -113, -74, -79, 79, -80, -110, -125, -17, -121, -75, 97, -36, -94, 92, 67, 120, -69, -113, -38 ]
The opinion of the court was delivered by Mason, J.: This action was replevin for cattle under a chattel mortgage. The plaintiff obtained possession and no redelivery bond was given. It has been finally decided by this court that the plaintiff was entitled to the cattle, and that issue is settled. It is represented, however, in a motion of the defendant to modify the judgment that from the proceeds of the cattle here involved' and other cattle covered by the mortgage the plaintiff has obtained money in excess of his claim. The defendant asks that the amount and ownership of such excess be decided by this court in order that the controversy may be ended, or if that request be denied then that the case be remanded to the district court in such a way that these matters be there determined. A complete adjustment in the present action of the entire controversy is desirable. Obviously, however, new questions of law and fact may be and probably will be involved in such settlement. This court is so doubtful of its jurisdiction in such a proceeding that it is unwilling to assume it even with the consent of the parties. An order will be made, however, to give opportunity for the hearing and determination of such matters by the district court in this action. Jurisdiction to that extent was expressly retained in response to a suggestion of counsel at the time the opinion wás filed. The direction for a mandate is modified so that, while requiring final judgment to be rendered that the defendant shall not recover any part of the cattle involved, the district court may permit supplemental pleadings to be filed relating to claims to any surplus of the proceeds, such claims to be litigated in this action, provided all persons interested be made parties and due service be made upon them or appearance be entered in their behalf, or suitable provision be made to indemnify the plaintiff against claimants not so served or appearing. Harvey, J., not sitting.	[ -13, -4, -44, -51, 74, 96, 42, -102, 65, -95, 39, -45, -23, -54, 20, 101, 98, 57, 69, 107, -41, -77, 87, 65, -13, -14, -112, -49, -71, 110, -28, 15, 77, 32, -62, -43, 70, -94, -63, 92, -82, 7, -119, -59, -7, 0, 48, 41, 18, 75, 101, -35, -13, 44, 57, -61, 9, 40, 123, 61, -48, -7, -70, 13, 127, 3, 49, 100, -116, 97, -40, 46, -112, 49, 1, -24, 115, -74, -122, 116, 111, -103, 8, 38, 98, -112, 116, -17, 90, -104, 47, -36, -113, -90, -112, 24, 35, 32, -74, -99, 126, 70, 38, 124, -17, 5, -97, 108, 23, -2, -106, -77, -115, 60, -104, -125, -1, -105, 48, 113, -51, -94, 92, 67, 90, -101, -98, -1 ]
The opinion of the court was delivered, by Johnston, C. J.: This proceeding was brought by a number of taxpayers to enjoin the board of county commissioners of Wyandotte county from constructing a bridge across the Kansas river at Seventh street in Kansas City, Kan., and also from issuing bonds and letting a contract for the construction of the bridge and the levying and collecting of taxes upon the property of plaintiffs for the construction or maintenance of this or any other bridge within the corporate limits of Kansas City. The board was proceeding to the construction of the bridge under the authority of chapter 76 of the Laws of 1923 (R. S. 68-1301 to 68-1304). Upon the pleadings and proof the trial court held that the act under which the board was proceeding was local and special, and therefore fell within the inhibition of the. constitution; that the law was not properly enacted; and even if it were held to be valid, the act itself discloses that it was not intended to authorize the construction of bridges within the limits of incorporated cities; and hence a judgment was rendered enjoining the defendants from building the bridge and from levying or collecting any taxes on the property of the plaintiffs. Defendant appeals. The act under which the board was proceeding was entitled, “An act relating to bridges and approaches thereto in certain counties,” and its material provisions are that the board of county commis sioners of any county which has or may hereafter have a population of 120,000 or more may locate and construct one bridge and the necessary approaches thereto across any river flowing through the county at a point where a public street, highway or trafflcway crosses or if prolonged would cross such river, and to issue bonds of the county for the estimated cost of the same without authorization of an election, and that none of the limitations in the laws of the state on the amount of indebtedness the county may assume, should be applicable; and also provided that the bonds issued under the act should not be computed in determining the amount of county indebtedness under any limitation statute relative to the limit of county indebtedness. It is further provided that nothing in the act should preclude the application to any bridge erected under a bridge act of 1905, and that no bridge should be constructed under the act at any location where a bridge exists at the time rights under the act are exercised. Another provision is that if within fifty days after the board has passed a resolution that it is necessary to construct a bridge in pursuance of the act, a petition of twenty-five per cent of the qualified voters is presented asking for a special election to vote upon the question of issuing bonds for the improvements, and if the board finds the petition to be sufficient it shall call a special election to vote upon the issuance of bonds. It is further provided that the board may direct the county engineer to prepare plans and specifications for the bridge and make an estimate of its cost, and employ engineers to assist the county engineer in making the plans and specifications and in superintending the construction after the plans and specifications have been completed and approved. The board is then authorized to advertise for bids and let a contract for its construction to the lowest responsible bidder, but that no contract shall be awarded at a price in excess of the estimate made. The contractor is required to give a bond to secure the faithful performance of the contract. He is to be paid out of the proceeds of the bonds, which are to run for twenty years and bear interest at a rate not exceeding six per cent. There are provisions relating to the execution and registration of the bonds providing that they shall not be sold for less than par, that no commission shall be paid for their sale, and it is made the duty of the board to levy a tax annually on all property in the county for payment of the bonds. A final provision is that no suit shall be brought to enjoin the erection of the bridge or the issuance of the bonds unless it is commenced within thirty days after the contract for the bridge is let. The plaintiffs contended in the trial court, and are contending in this court, that the act, couched as it is in general terms, indicates that the legislative intent was to provide only for the construction of a county bridge, one that was to be built, maintained and controlled by county authorities, and not for the erection of one within an incorporated city to be maintained and controlled by city authorities. It is argued that we have statutes giving full authority to cities to build bridges within their limits, and when built are to be maintained and controlled absolutely by city authorities; and on the other hand the laws authorizing counties to build bridges are usually confined to those to be erected within the county but outside of cities. It is argued that the building of a bridge by one municipality within another municipality is not in accordance with our system or policy, and that the act is not to be given such an interpretation unless the terms used by the legislature plainly and clearly express that intention. It is'said that bridges are part of the streets of a city, over which cities have absolute control; that there can be no divided control, or in fact any control of them by the authorities of counties, and therefore the act should be construed to mean that the bridge authorized to be erected was at a certain point in the county but outside of the limits of the city, citing Commissioners of Shawnee Co. v. City of Topeka, 39 Kan. 197, 18 Pac. 161; McGrew v. Stewart, 51 Kan. 185, 32 Pac. 896; City of Topeka v. Shawnee County, 91 Kan. 275, 137 Pac. 951; City of Cottonwood Falls v. Chase County, 113 Kan. 164, 213 Pac. 648. It is therefore urged that as the city has exclusive authority over bridges within its limits, and as each municipality is clothed with ample power to erect and maintain bridges within its own jurisdiction, it was not in the contemplation of the legislature that one municipality should intrude upon the other, or that in the absence of a clearly expressed intention the county should assume jurisdiction within the corporate limits of the city. Nothing contained in the act expresses a purpose to make its provision applicable within the limits of the city unless it be the reference therein to the point where a public street crosses a river; but it is not uncommon to apply the term street to a highway in an unincorporated village or even to a public road in a rural district. It must be conceded, and in fact is conceded by plaintiffs, that under its sovereign power the legislature can authorize a county to build' bridges within a city, impose the burden of maintenance upon the county and give it absolute control over city streets; but that is not the system that has been adopted in this state. The general policy has been to give cities exclusive power to erect and maintain streets and the bridges thereon within the corporate limits and exclusive control of them. The county and the district are distinct municipalities, with independent and conflicting jurisdiction as to streets, and bridges, and an intention of the legislature that there should be an assumption of jurisdiction and control by a county over bridges within a city is not lightly to be inferred. Strong reasons have been presented that such jurisdiction and control was not within the contemplation of the legislature in the passage of the act, but in view of the opinion reached on another branch of the case it is not deemed necessary to determine the question of the application of the act to bridges within incorporated cities. The principal question involved in the case is the constitutionality of the act. Plaintiffs contend, that although it is general in form, the classification and the restrictive features with which the act is hedged make it local and special in its application and therefore violative of section 17 of article 2 of the constitution. That limitation was adopted in 1906 to meet a strong tendency and prevailing practice of enacting special legislation, and these log-rolling methods had proceeded to such an extent as to give rise to the remark: “It has been estimated that fully one-half of the laws enacted by the state legislature in recent years have been special laws.” (Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583.) To cure this vice a limitation was prescribed that all laws of a general nature shall have uniform operation throughout the state, and that no special law shall be enacted where a general law can be made applicable, and further placed in the courts of the state the power and responsibility of determining whether an act is repugnant to the limitation. In form the act in question is general and is based in part on a classification of population, but added to it are other restrictive features which give it an obviously local and special application and operation. It places counties having a population of 120,000 or more in a class by themselves, and classifications based on the characteristic of population and which are free from other constitutional objections have in some instances been deemed to be valid legislation. (State v. Downs, 60 Kan. 788, 57 Pac. 962; Tarman v. Atchison, 69 Kan. 483, 77 Pac. 111; Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, and cases cited.) To 'be valid, however, the distinction between one class and another must be real and germane to the purposes of the act, and failing in these respects the act must necessarily be condemned as invalid. In the matter of building bridges it is not easy to discern a real difference between counties of 100,000 and those having 120,000, nor is it readily apparent why the general laws relating to the erecting of bridges which appear to be ample and adapted to all the counties of the state, may not be equally applicable to Wyandotte, the only county in the state having 120,000 inhabitants. At the time of its enactment and up to the present time the act is only applicable to a single county, Wyandotte, and it obviously was promoted and passed for the purposes' and benefit of its promoters in that county. It is not unreasonable, of course, to contemplate that other counties than Wyandotte will at some time attain the number of inhabitants named in the act, but that is only one of its special and exclusive features. It is not only limited in its operation to one county, but it is limited also to one bridge within one county. When a bridge is built in Wyandotte county, the act thereafter ceases to have any force or application to that county. If, in the course of time, another county should reach the population named, the application of the act would still be confined to a single county, in which only a single bridge could be built; and when a third county attained the required population and should proceed to build one bridge, the act would be without effect in the first and second counties. Another restriction is that no bridge may be built under the act where a bridge is in existence, and this provision precludes the construction of a new bridge at a point where one existed, however much it might be needed. Again, the act contains a limitation that the bridge can only be erected at a point where a public street, highway or traffic-way crosses, or if prolonged would cross, a river, thus making it special to a place where no street existed, but which if prolonged would cross a river. Other limitations are that statutes of limitation shall not apply to actions taken under the act, and also that the bonds issued under it shall not be counted or considered in determining the indebtedness of the county, which conflicts with a number of general statutes fixing a limitation on the indebtedness which a county may assume. No substantial reasons can be given for these exceptions and restrictions, and they plainly disclose that the act is local and special in its application and results. It is special not only by what is included in its scope but also on what is excluded. Its provisions indicate that the act was passed for the purpose of securing the building of a bridge at the particular point in Wyandotte county where the defendants proposed to build the bridge in question. An act which is designed to apply to one municipality and excludes others from its operation is ordinarily regarded to be special and repugnant to the constitutional limitations. (City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800; Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016; Bull v. Kelley, 83 Kan. 597, 112 Pac. 133; State, ex rel., v. City of Lawrence, 101 Kan. 225, 165 Pac. 826; Patrick v. Haskell County, 105 Kan. 153, 181 Pac. 611.) In State, ex rel., v. Deming, 98 Kan. 420, 158 Pac. 34, an act to establish courts in certain counties that was general in form but had many restrictions, was considered and held to be unconstitutional. It contained a number of characteristics found in the act in question. Of that act it was said: “While the act under consideration is couched superficially in general terms, the peculiar restrictions of its application dependent upon population of counties and of cities within such counties, inclusion and exclusion of cities, inclusion and exclusion relative to judicial districts, inclusion and exclusion dependent upon popular vote, all demonstrate that it is intended to operate only in Reno county and possibly one or two others. It is therefore special legislation. . . . No justification for this special act is shown, and none can be judicially conceived. It violates the uniformity clause of the state constitution: It attempts to cover subjects which not only can be governed by general laws but which have been governed by general laws since the foundation of the state, and is clearly at variance with the provisions of section 17 of article 2 of the state constitution.” (pp. 426, 427.) The general rule stated in the syllabus of that case is equally applicable here, to wit: “An act of the legislature which attempts a classification of counties which is capricious, illogical and unreasonable is essentially special and not general in its nature, and cannot be upheld under the scrutiny of the constitutional amendment of 1906. (Const., art. 2, § 17.)” As the act under consideration is held to be repugnant to the constitution it is unnecessary to consider the claim that it was not properly repassed after it had been vetoed by the governor. The judgment of the district court is affirmed.	[ -16, -54, -12, -4, -50, -62, 16, 25, 24, -77, -12, 83, -55, -38, 5, 105, -25, -3, -16, 120, -63, -77, 55, 74, -42, -77, -37, -59, -69, 93, -12, -43, 76, 48, 74, -107, 6, -62, -107, 28, -50, 4, -120, -59, 90, 65, 60, -17, 102, 74, -75, -114, -5, 40, 20, -29, -84, 44, 91, -86, -111, -79, -104, -43, 126, 21, 33, 4, -104, -127, 72, -90, -104, 49, 33, -4, 119, -90, -122, -11, 77, -39, 8, 118, 98, 33, -75, -53, -4, -72, 14, -42, -99, -90, -106, 25, 67, -118, -74, 95, 117, 86, 6, 126, -26, 4, -33, 108, -125, -117, -14, -13, -49, 52, -125, 1, -17, 33, 48, 97, -58, -10, 78, -9, 48, 27, -113, -72 ]
The opinion of the court was delivered by Johnston, C. J.: In this action a recovery was sought for alleged malpractice, the plaintiff charging that defendants Dr. Frank L. Flack and Dr. J. L. Barker undertook to diagnose and treat a dislocated and injured arm of the plaintiff and failed to use due care in doing so, with the result that the arm has been permanently crippled and injured, for which damages were asked. In the trial the jury awarded damages against Flack in the sum of $5,000, but found that Doctor Barker was not chargeable with negligence nor responsibility for the injuries sustained. Flack appeals and assigns error in overruling his demurrer to plaintiff’s evidence, in denying his motion to set aside two special findings made by the jury, and in refusing to render judgment in his favor upon the special findings notwithstanding the general verdict. A motion for a new trial was made by Flack, which was later withdrawn, and he stands on the ruling on his demurrer and upon the motions attacking the special findings. It appears that while plaintiff was riding in a Ford roadster the car was overturned, causing severe injuries to him. He was first taken to the office of Doctor Barker, who made an examination and said that the arm was broken and dislocated, and he found lacerations on his leg. Barker stated that he was not feeling well, and suggested that the plaintiff be taken to another doctor at Coffeyville. He was taken to the office of Doctor Flack at Coffeyville, where he was placed on a table; the arm was examined by Flack, who declared that it was broken and dislocated. After manipulating the arm for some time a crack was heard and Flack said that the arm had gone back into place. Splints were bandaged upon the arm, which was placed in a sling with the angle downward across the chest of plaintiff. The arm continued to give the plaintiff much pain, and he was examined several times by Barker, and finally he was taken back to Coffeyville, where Doctor Flack made an examination of the arm and declared that it was getting along all right. Plaintiff told Flack that a bone of the elbow was sticking out and that every time he moved the arm it cracked, but the doctor assured him that it was not any more than could be expected with a dislocation and fracture. It was suggested to Flack that an X-ray should be taken, but Flack said there was no use in it, that any man with a thumb and one finger could feel where the bone was broken, and that it was getting along all right and it would not be necessary to bring him in again. The splints were subsequently removed, when it was found that the arm was still swollen and painful. After the splints were removed, and while the plaintiff was trying to work his arm a little, as he had been advised to do, the arm fell back sideways, and continued to do so. When Doctor Barker undertook to flex the arm, plaintiff told him that it would hurt, and on another visit to Doctor Flack he advised him that the joint was getting along as well as could be expected and would have .an X-ray in his office in the next few days when an X-ray of the arm would be made. The plaintiff was taken to the office of Doctor Chaney, who operated an X-ray machine, where a picture was made which showed the dislocation and fracture. Another X-ray was made by Doctor Ebright, and an effort was made to put the arm back in joint which was unsuccessful. In the action brought it was charged that the doctors did not correctly diagnose the arm or ascertain the nature and extent of the injuries, that they did not properly reduce the dislocation, but carelessly and negligently and without using ordinary skill diagnosed and treated his injuries as a fracture below the elbow and a dislocation of the elbow joint, and carelessly and negligently bound up the elbow with splints and bandages without reducing the dislocation and without placing the bones in their proper position, whereby the bones were permitted to remain in such a position that his arm became deformed, crooked, stiff, enlarged, crippled and permanently impaired, causing and will continue to cause pain and suffering. The jury returned twenty-six special findings, finding that the dislocation of the elbow joint had been reduced, that in respect to redislocation of plaintiff’s arm in the course of treatment, it was found that the plaintiff’s arm was not properly dressed with splints and bandages so as to prevent a redislocation. That the defendants advised the plaintiff that the taking of an X-ray was unnecessary. That plaintiff had complained to defendants during the course of the treatment that the arm was not right. In respect to the negligence for failing to render proper care and attention to the arm, the jury found that Flack was negligent, but did not find that Barker was. It was further found that Barker when called upon to treat plaintiff advised that he would not undertake the treatment of the arm. When an X-ray was taken of the arm by the physicians in Wichita, he was advised that an open operation would aid in restoring the arm to a reasonable degree, but plaintiff did not submit to the operation. In answer to- the question as- to what the negligence of Flack consisted, the answer was: the jury found that Flack improperly bandaged the arm of plaintiff in a position that made the arm more liable to dislocation after splints and bandages were removed. Flack filed a motion asking the court to set aside the answers numbered 3, 8 and 26, but these motions were overruled. Afterwards the motion to set aside No. 26 was withdrawn. No. 3 is as follows: - “3. If you answer question No. 1 in the affirmative, then state whether plaintiff’s arm was properly dressed with splints and bandages so as to prevent a redisloeation? A. No.” No. 8 is as follows: “8. Do you find defendants guilty of negligence in failing to render proper care and attention to plaintiff’s arm? A. Dr. F. L. Flack, Yes; J. L. Barker, No.” No. 26 was as to Flack’s negligence. The answer was: “A. In that Flack improperly bandaged arm of plaintiff in position that would make arm more liable to further dislocation after splints and bandages were removed.” Defendant’s contention is that the demurrer to the evidence should have been sustained; that the plaintiff predicated his case on the failure of defendant to make an examination and that plaintiff’s own testimony refutes that claim. The evidence shows and the jury found that the dislocation had been reduced at the first examination. It is said there is no evidence of an improper diagnosis or of an improper reduction. It appears that the accident occurred on November 7, when he was taken to Flack’s office. The second visit to Flack was on November 25, and the next was on March 2, and the fourth visit on March 14. It is first contended that the demurrer to plaintiff’s evidence should have been sustained on the ground that the negligence alleged was not shown, that the evidence did not justify the submission of the case to the jury or form a basis upon which a verdict for plaintiff could stand. The negligence alleged was that a thorough and proper examination of the injury was not made by the defendant, that he did not ascertain the nature and extent of the injuries and used no means to diagnose the injuries, did not properly reduce the dislocation, but negligently diagnosed and treated the injury as a fracture below the elbow and a dislocation of the elbow joint; that he negligently bound up the dislocated elbow with splints without placing the bones in the proper position so that the arm became permanently impaired and crippled; and further, that he failed and refused to take an X-ray picture of the arm, declaring that it was unnecessary and that the arm was all right. It appears the diagnosis that there was fracture of the bone was incorrect, but no recovery can be or is built on that error. As to the reduction of the dislocation, the evidence tends to show that it was reduced at the first-treatment, but it was also shown that the arm was not bandaged in such a way as to prevent a redislocation. Plaintiff contends that this phase of the case was not properly pleaded and that the evidence pertaining to it should be disregarded. While that charge was not definitely stated in the petition, there was an averment that it was improperly bandaged and the matter of improper bandaging and treatment was .alleged. Evidence on that feature of the case was received without objection and testimony was given as to the proper method of bandaging a dislocated joint in order to hold it in place, and the question was tried out as fully as if the pleading had definitely covered the subject. Having been submitted to the juiy as an issue in the case on the basis of the testimony so taken, the pleading may be treated as amended in that respect. Although there is some conflict in the evidence as to the proper method of bandaging and treating a dislocation, there was testimony of physicians that the method employed by the defendant in bandaging the arm and binding it to his body was not proper or such as ordinary care required. The evidence also showed a lack of ordinary care after the first treatment. When defendant’s attention was called to the condition of the arm, that it cracked when moved, and that a bone was sticking up, he still insisted it was all right and doing as well as could be expected. Upon the suggestions to defendant that an X-ray picture of the arm should be made, he advised that it was not necessary. We think the evidence is sufficient to show that he failed to exercise that reasonable care and skill which the law requires of one of his profession, and that the bad condition in which the arm was left was the result of his negligence. No error is seen in the overruling of the demurrer to plaintiff’s evidence. There is a contention that finding No. 3, to the effect that defendant did not properly dress the aim with splints and bandages so as to prevent a redislocation, should have been set aside. The contention is based upon the ground already considered that the matter of redislocation was not sufficiently pleaded. That matter having been treated as an issue in the case, fully tried out, and having been submitted to and determined by the jury, is not open to the objection that is made. A like motion was made in respect to finding No. 8,’which found that the defendant Flack failed to render proper care and attention to plaintiff’s aim. The motion was denied. It is urged that the question was an improper one in that it amounted to a conclusion rather than a finding of fact. It is a broad and comprehensive finding, but so far as the record shows no objection was made to the form of the question, and if there was an objection made and overruled the matter was not presented to the court on a motion for a new trial. All rulings which might be grounds for a new trial which .are not presented to the trial court on a motion for a new trial are deemed to be waived. It is plain that no error was committed in denying the motion to set aside the finding. Some other of the questions discussed in the case are open to the same objection. An argument is made that the special findings are inconsistent with the general verdict and that defendant’s motion to render judgment in his favor upon the findings should have been allowed. While tlie jury found that the dislocation was reduced, and also that defendant had employed certain approved tests and manipulations of the arm to determine the nature of the injury and believed that he had obtained the ordinary motion of a joint after a dislocation had been reduced, they expressly found that the arm was not properly dressed with splints and bandages to prevent redislocation, and also found that defendant improperly bandaged the arm in a position which would make the arm more liable to further dislocation after the splints and bandages were removed. It cannot be held that the special findings are inconsistent with the general verdict or that defendant was entitled to judgment on the findings. The judgment is affirmed.	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The opinion of the court was delivered, by Harvey, J.: This is an action to recover taxes, alleged to have been levied without authority of law and to have been paid under protest. It was tried to the court, who made findings of fact and conclusions of law and rendered judgment for defendant. The plaintiff has appealed. The taxes complained of were levied in 1916. On December 20 of that year the plaintiff, although it protested the tax in controversy, paid the full tax of that year, in order to get the benefit of the rebate then allowed by law (Gen. Stat. 1915, § 11396, repealed by ch. 309, Laws 1919). The trial court held that the payment of the last half of the taxes at that time, for the purpose of obtaining the rebate was a voluntary payment as to the last half and could not be recovered. Plaintiff complains of this ruling, and has presented an able argument in support of its contention. But the ruling is in accord with the previous decisions of this court (K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Kan. 587, 596; A. T. & S. F. Rld. Co. v. City of Atchison, 47 Kan. 712, 715, 28 Pac. 1000; A. T. & S. F. Rld. Co. v. Comm’rs of Atchison Co., 47 Kan. 722, 28 Pac. 999; Railway Co. v. City of Humboldt, 87 Kan. 1. 123 Pac. 727; Bush v. City of Beloit, 105 Kan. 79, 181 Pac. 615), which we shall not disturb. The court found that Montgomery county was required by statute (R. S. 19-601) to have, and has had at all times material herein, a county auditor, and that plaintiff’s claim for a refund of the taxes sought to be recovered in this action had never been presented to nor passed upon by the county auditor, and by reason of this the court held plaintiff is precluded from maintaining this action. Plaintiff complains of this ruling. The statute provides it shall be the duty of the county auditor “to audit all claims of every nature and description presented to or claimed against his county” (R. S. 19-605); that he “shall allow no claim unless the same is expressly provided for by law, and due according to the terms of the law, or due by virtue of a contract authorized by law” (R. S. 19-607); the county commissioners may refuse to allow claims approved by the auditor, but no claim shall be paid which has not been approved by him (R. S. 19-608); claims allowed by the board of county commissioners shall be paid (R. S. 19-613); and no claim which the auditor has power to pass upon shall be sued on till after the decision of the auditor and the board of commissioners thereon (R. S. 19-615). Plaintiff contends that its claim for a refund of taxes is not one which the auditor had power to pass upon; that if presented to him he would have been prohibited by R. S. 19-607 from allowing it, and that plaintiff was not required to do a useless thing as a prerequisite to bringing the action. We cannot agree with this contention. A similar contention, made in Salthouse v. McPherson County, 115 Kan. 668, 672, 224 Pac. 73, was held not to be well taken. The statute defining the class of claims required to be audited (R. S. 19-605) is about as broad and as comprehensive as language can make it, and has been construed even as in- eluding a judgment of a court of record. (Gunning v. Wyandotte County, 81 Kan. 708, 711, 106 Pac. 999.) In 26 R. C. L. 455, it is said: “A claim to have taxes refunded is a claim of a contractual nature, and falls within statutory provisions requiring claims of such a nature to be presented to the municipal authorities for allowance before suit is brought.” And see cases collected in note 50, L. R. A., n. s., 181. The court found that on April 30, 1918, plaintiff filed with the board of county commissioners a request for the refund of the taxes sought to be recovered in this action, claiming the same to be illegal. Plaintiff contends this was a sufficient presentation of the claim for audit and that the failure of the auditor to pass upon it is not chargeable to plaintiff. This contention must be sustained. The county clerk is the clerk of the board of county commissioners (R. S. 19-304 to 307). It is his duty to certify to the auditor, on or before the first Monday in each month, all claims and demands against the county on file in his office (R. S. 19-605), and it is the duty of the auditor, upon receiving claims certified to him by the county clerk to examine and audit the same, and on or before the first Monday of the next succeeding month to certify to the county clerk his report and decision on such claims. (R. S. 19-606.) Had this action been taken by the county clerk and auditor, as required by statute, the claim would have been audited long before this action was brought in December, 1918. But defendant contends the claim for refund was not verified, for which reason the county clerk was justified in ignoring it. The claim was properly itemized, and stated clearly the reasons for the claimed refund; it was not objected to because of lack of verification, hence the verification was waived. (County of Saline v. Bondi, 23 Kan. 117; 15 C. J. 651.) Defendant argues that plaintiff should have presented its claim to the state tax commission, as provided by R. S. 79-1702. The decision of the court below appears not to have been based upon this point; but, aside from that, the statute does not provide an exclusive remedy. (Railway Co. v. Greenwood County, 104 Kan. 818, 180 Pac. 785; Salthouse v. McPherson County, supra.) The cause is reversed for a new trial on plaintiff’s right to recover the first half only of the taxes alleged to be illegal.	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The opinion of the court was delivered by Dawson, J.: This was an action to enjoin proceedings to create a benefit district in Wichita to pay for property taken to widen a street. The plaintiff owned a small tract of land in the city of Wichita bounded on the west by a narrow street named Fountain avenue. The city appropriated a strip of land off the west side of plaintiff’s land for the purpose of widening Fountain avenue and awarded plaintiff $2,000 as damages for the land taken. It assessed $1,500 against the remainder of plaintiff’s land as benefits; and to raise the money to pay the excess damages over benefits it erected a special benefit district consisting only of plaintiff’s remaining land. Plaintiff appealed from the award of damages; and brought the present suit to enjoin the city from proceeding with the matters incidental to and dependent upon the benefit district so created. The cause was tried on an agreed statement of facts, and the district court found that the city had acted unreasonably and granted the injunction prayed for. The city appeals, contending that the case is governed by the general rule that courts should not enjoin acts of city governments except in a clear case of abuse of discretion. Plaintiff contends that the present case falls within the exception which is part of the rule itself. The record presented to us does not show exactly how much land plaintiff had which was affected by the proceedings, but it may fairly be inferred from the abstracts and briefs that it was less in extent than an ordinary city block — perhaps an acre or so in extent. It is bounded on the west by this narrow street, Fountain avenue, and on the east by some street about 150 feet east of and parallel to Fountain avenue. It is not remarkable that the trial court should conclude that it was unreasonable — in effect an arbitrary abuse of discretion — to take a considerable part of plaintiff’s land for public use and then subject the remaining portion of it to the payment of all the damages for the land thus taken. If nobody thereabout other than plaintiff was to be benefited by the widening of the street, the widening of Fountain avenue was a mere capricious meddling with plaintiff’s property. If the widening of the street was of benefit to other nearby property, and it seems logically impossible that it could have been otherwise, then it was arbitrary and unreasonable to create a benefit district solely of plaintiff’s property and to relieve from the burden by exclusion from the district the other nearby property which was similarly benefited. (Norwood v. Baker, 172 U. S. 269, and Rose’s notes thereto in 43 L. Ed. 443, et seq.) This conclusion does no violence to the general principle of law contended for by defendants. Nor is it a sufficient defense for the seemingly unreasonable action of the city to argue that the benefited property across the street should bear no portion of the burden, for the reason that the narrow street already existing had been dedicated from the property on the west. There was neither evU dence nor stipulation covering that point; and on the scant record submitted to us this argued fact does not appear; nor would it, if true, justify the erection of a district comprised of no other property than plaintiff’s to bear the burden of this public improvement. It is also urged by defendants that by appealing from the award of condemnation, plaintiff made an election of remedies which precludes him from seeking redress by injunction. But the appeal from the award could only concern itself with incidents of the award, its inadequacy, invalidity or irregularity of the proceedings pertaining thereto, and matters of that sort. In such appeal the unreasonable conduct of the defendants in making a benefit district exclusively out of the mere remnant of plaintiff’s property to raise revenues to pay plaintiff for the portion of his land taken by condemnation could not be properly drawn in question. This injunction action was sanctioned by statute (60-1121), and its maintenance was not inconsistent with his appeal from the award in the condemnation proceedings. The judgment is affirmed.	[ -16, -2, -16, 110, 90, -32, 24, -112, 73, -79, -89, 95, 45, -55, 5, 61, -41, 121, -16, 107, -43, -94, 7, -61, -14, -13, -5, 69, -71, 93, -10, -42, 76, 49, -62, -43, 70, -64, 77, -36, -114, -121, -117, 77, -39, 66, 52, 107, 82, 79, 113, -115, -77, 40, 24, -61, -88, 44, 91, -67, 49, -5, -84, -123, 126, 19, 32, 36, -68, -61, -6, 10, -112, 57, 0, -24, 115, -90, -106, 116, 69, -101, -116, -30, 98, 1, 97, -17, -8, -119, 14, -39, -115, -90, -112, 88, 34, 15, -98, -97, 117, 4, 71, 126, -1, -107, 91, 44, 15, -122, -44, -79, -49, 120, -128, -125, -17, -121, 48, 100, -50, -26, 92, -13, 22, -37, -97, -40 ]
The opinion of the court was delivered by Hopkins, J.: The action was one to set aside a certificate of purchase and to enjoin the sheriff from selling certain real estate in the city of Florence. Both parties were denied relief, and both appeal. The facts were substantially these: On November 28,1916, George H. Clark, the son of the plaintiff, and Charles A. Stapleton negotiated to purchase the property in controversy from J. M. Cree for a consideration of $1,600. The money with which the consideration was paid was borrowed, $1,000 from the Marion County State Bank, and $600 from the Burns State Bank, the plaintiff indorsing the paper. At the same time, Clark, Jr., and Stapleton, with their respective wives, executed to the plaintiff their warranty deed covering the same property. The plaintiff afterwards paid the banks the borrowed money and took up the paper which he had indorsed for Stapleton and Clark, Jr. On May 2, 1921, nearly five years after the execution of the deed, the defendant Howe obtained a judgment against Clark, Jr., and Stapleton and caused execution to be levied upon the property in controversy. In the meantime, plaintiff’s deed was not filed for record until June 13, 1921, after judgment in Howe v. Clark, Jr., et al. had been rendered. The court in the instant case denied the injunction and gave judgment for the defendant for costs, holding plaintiff’s deed was an equitable mortgage. The plaintiff contends that the court erred in holding that the deed executed to him was a mortgage -rather than an absolute conveyance of title. The plaintiff’s own testimony, however, was to the effect that he indorsed the notes for Clark, Jr., and Stapleton; that he later paid the obligations at the two banks, amounting to \|1,600, with the understanding and agreement that Clark, Jr., and Stapleton would pay him so much a week, which was never done. The plaintiff’s deed was withheld from record for nearly five years. We think the evidence was sufficient under the circumstances to support a finding that plaintiff’s deed was a mortgage. The defendant contends that the court erred in admitting evidence that at the time an execution was levied upon the real estate in controversy George H. Clark had no interest, right or title therein, and in overruling defendant’s motion to strike out the portion of an answer of the plaintiff to a question, to wit: “I put up the money for the purchase of this property, and I had an agreement with them that they should pay me so much a week, which was never done.” The defendant’s contentions cannot be sustained. On the first proposition, he was in no wise prejudiced on account of the answer to the question, inasmuch as the trial court held that the plaintiff was not the owner of the land, but had only an equitable mortgage thereon. On the second proposition, oral evidence was competent to show the intention of the parties, the character of the transaction, the purpose for which the deed was executed, and the real nature of the consideration. A similar question arose in Boam v. Cohen, 94 Kan. 42, 145 Pac. 559, where it was held that even though the instrument was in form an unconditional bill of sale, parol evidence was admissible to show that it was intended as security for the payment of debt, and in fact a chattel mortgage. The rule is the same- whether the matter involved concerns either realty or chattel property. (Dyer v. Johnson, 109 Kan. 338, 198 Pac. 944. See, also, Root v. Wear, 98 Kan. 234, 157 Pac. 1181; Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127; Note on Deeds as Mortgages in L. R. A. 1916B, 87; 19 R. C. L. 251.) The judgment is affirmed.	[ -12, 106, -8, 62, 74, -32, 10, -88, 73, -95, 36, 123, -19, -60, 1, 101, -58, 45, 85, 105, -59, -78, 2, 67, -46, -45, -37, -35, -67, -35, -10, 87, 76, 48, -62, 125, -30, -118, -59, 80, -50, -123, 43, -28, -55, 92, 48, 107, 82, 12, 33, -114, -13, 47, 21, 90, 109, 40, 73, 49, 80, 120, -118, -123, 95, 2, -79, 117, -104, 3, -24, 46, -104, 53, 1, -24, 83, -90, -122, 84, 77, -101, 40, 54, 102, 33, -11, -49, 120, -100, 47, -3, -115, 6, 114, 88, 43, 32, -66, -99, 121, 16, 6, 116, -19, 13, 28, 108, 13, -113, -108, -125, 45, 106, -102, 3, -45, 11, 32, 113, -49, -94, 95, 103, 56, -69, 15, -1 ]
The opinion of the court was delivered by Harvey, J.: This is a suit in which all the stock fire insurance companies authorized to do business in the state are joined as plaintiffs against Frank L. Travis, as state superintendent of insurance (William R. Baker, successor in office, substituted) defendant, to enjoin defendant from putting into effect an order made by defendant respecting rates of premiums to be charged by plaintiffs upon insurance policies issued by them, upon property in this state. The evidence was taken before a referee, who made findings of fact and conclusions of law, as shown in the appendix. These were approved by the trial court and judgment was rendered for plaintiffs. The defendant has appealed and complains, among other things, of the rulings denying his motions to modify or strike out certain findings made and for additional findings, but we shall not find it necessary to examine these rulings. We are under much obligation, both to the referee and the trial court, for the evidently painstaking care they gave to the voluminous record and to the numerous questions presented, some of which are novel and unusually important. After having given notices to plaintiffs, and conducted hearings, which were continued from time to time, defendant, on January 22, 1922, made an order, effective March 1, 1922, decreasing the then existing fire insurance premium rates on certain classes of property, increasing it upon others, and leaving it unchanged upon the remainder; also, decreasing the tornado rate. Before the order became effective this suit was brought. Pending the action, plaintiffs have been permitted, in accordance with the statute (R. S. 40-469), to charge the old rate, where decreases were ordered, and to impound with defendant the difference between the old rate and the new rate, this impounded fund to be disbursed at the end of the litigation to the parties to whom it is adjudged to belong. Insurance is such an essential part of the commercial activities of our people, as now conducted, that it has become, and is, a business impressed with the public interest (German Alliance Ins. Co. v. Kansas, 233 U. S. 389), and thereby subject to reasonable regulations by the state. Most of the fire insurance business is conducted by stock fire insurance companies. It is essential that they be financially sound, and that their premium rates be so fixed that the insurance business conducted by them will produce an income sufficient to pay not only all losses and expenses of the business, but will yield a fair return, considering the hazardous nature of the business. Plaintiffs contended in the trial court that the order made by defendant was void for the reasons: (1) That no legal notice was given plaintiffs of the hearing upon the proposed change of rates; (2) that no proper hearing was had thereon; (3) that the statutes of this state do not clothe defendant with authority to “fix rates”; (4) that the defendant neglected to “determine” that the existing rates were excessive or unreasonable, which determination is claimed to be juris dictional to his right to make such order; and (5) that the order complained of is unreasonable, unjust and inequitable. The first four oí these questions were determined adversely to plaintiffs in the court below, and the rulings of the trial court thereon have not been appealed from, hence we may regard these questions as being settled so far as this case is concerned. As to the reasonableness of the order, the court found it proper to consider the tornado business separately from the fire business, and held the order was reasonable in so far as it pertained to the reduction of rates for tornado insurance. From this ruling there has been no appeal, hence the question of the reasonableness of the order, in so far as it pertained to tomado rates, is not before us. So we have before us, speaking in a large way, the single question: Was the order made by defendant, in so far as it pertains to fire insurance premium rates, unreasonable, unjust and inequitable? The trial court regarded this as including the following questions, each of which was considered and determined: (1) Is the order void or unreasonable because it attempts to adjust rates according to occupancy or vocational classifications without regard to the fire hazard contained in the individual risks? The trial court held the -order made by defendant was not void for this reason. From this ruling there has been no appeal, hence we need give the matter no further attention. (2) In fixing a rate of the character of the one in question, should it be so fixed as to yield to the companies a fair and reasonable percentage of the underwriting profits independent of the amount of their capital and surplus, or should it be fixed so as to yield a fair return upon the amount of their capital and surplus allocated by some proper method to the state of Kansas? The trial court held that the rate should be fixed so as to yield to the companies a fair and reasonable percentage of the underwriting profits independent of the amount or value of their capital and surplus. In this court the members sitting are equally divided in opinion upon this point, hence no decision is made thereon. (3) In determining the income of plaintiff companies, should consideration be taken of their investment earnings? The trial court determined this question in the negative. In this court the members sitting are equally divided in opinion upon this point, hence no decision is made thereon. (4) What is the proper basis upon which to predicate the rate of return? This question presupposes that the rate should be so fixed as to yield to the companies a fair and reasonable percentage of the underwriting profits independent of the amount or value of their capital and surplus, and we shall discuss it upon that supposition, although we have not ourselves decided that point. Therefore, the question before us may be stated: Upon what principle should underwriting profits be computed? or, What premiums shall be considered, and what losses and expenses shall be considered, in determining the underwriting profits of plaintiffs? Plaintiffs contend that in-determining underwriting profits earned premiums only, less inqurred losses and expenses, should be considered. This contention is erroneous as to both items. Incurred losses and expenses are losses and expenses as originally claimed, and average from year to year from 10 per cent to 12% per cent more than losses and expenses actually paid. In determining the profits of any business there can be no reason for computing the outgo greater than it actually is. This error alone goes far toward requiring a reversal in this case. The unearned premium on a policy of insurance is that portion of the premium paid by the insured which would be returned to him by the insurance company upon the cancellation of the policy at any time during the term for which it was written, computed pro rata and not at short rates. The earned premium is the difference between the premium paid by the insured and the unearned premium as above defined. For example, if a policy written for a term of a year, on which the premium is $48, is canceled after being in force one month, $4 would be retained- by the company as earned premium and $44 returned to the insured as unearned premium. If canceled when the policy had been in force ten months, the company would retain $40 as earned premium and return to the insured $8 as unearned premium. So the question of the amount of the earned premium and of the unearned premium respectively upon any policy is determined as of the date of its computation rather than over any given period of time. In computing the amount of the earned premium or of the unearned premium as of a given date upon all of its outstanding policies an insurance company usually resorts to some general method rather than to undertake the enormous task of computing the exact amount on each separate policy. Some of the companies make the computation upon an annual basis, regarding all policies written at any time within a given year as though they had been written the first day of July. If the computation be made as of December 31, as it is usually made for the reports to the superintendents of insurance, they credit 50 per cent of the premium on policies written any time within the preceding year to earned premium and 50 per cent of it to unearned premium, if the policy is written for a term of one year. ' If the policy is written for a term of three years, one-sixth of the premium is credited to earned premium and five-sixths to unearned premium. If written for five years, one-tenth of it is credited to earned premium and nine-tenths to unearned premium. Some use another method. But the particular method of making this computation is of little or no importance in this case. There is no actual segregation of the funds either upon the books of the companies, or the manner in which they are invested or handled. All moneys received by plaintiffs are handled as though there were no legal requirements for them to report their earned and unearned premiums separately to the insurance commissioners. Of money received from whatever source,' a sum estimated as sufficient to pay current losses and expenses is kept on hand, or readily available ; the balance is invested as required by statute. It is only when compiling a report of the condition of the company as of a specific date, as for making annual reports to state insurance departments, that attention is paid to the matter of earned and unearned premiums, which are then computed by a formula, as above indicated, It'will be noted that when the unearned premium is so computed it exceeds the amount of the earned premium; for it contains 50 per cent of the premiums on policies written for one year, 831/3 per cent of the premiums on policies written for three years, and 90 per cent of the premiums on policies written for five years. Plaintiffs did contend that this entire unearned premium should be disregarded in computing their income for rate-making purposes, that only the earned premium should be considered. As the commission and other expenses of procuring the business amount to more than the earned premiums on policies written for three and five years and consume a large part of the earned premiums on policies written for one year, plaintiffs argue that they are conducting their underwriting business 'at ah actual loss, and that the more policies they write and the greater the increase of their underwriting business, the greater is their loss on their underwriting business. The trial court adhered to the theory of plaintiffs that underwriting profits should be computed on the basis of earned premiums, less incurred losses and expenses, but as to the earned premiums did not follow out plaintiffs’ contentions in full. To the earned premiums as above computed the court added 35 per cent of the unearned premiums, and from that deducted the incurred losses and expenses. This 35 per cent was arrived at in this way: An insurance company desiring to reinsure its business and liquidate its affairs can usually effect such reinsurance for 70 per cent of its unearned premiums, hence the court concluded that at least 30 per cent of the unearned premiums might properly be regarded as ultimate profit, and then, on the theory that the reinsuring company would not take the business and pay 70 per cent of the unearned premium unless it could do so at a profit, an additional 5 per cent was added. By this method of computation 65 per cent of the unearned premium was disregarded in computing income of plaintiffs on their underwriting business. There was no further direct showing of the actual profits accruing to insurance companies out of unearned premiums, but in computing losses and expenses all losses were charged up against current receipts. There is no showing or any intimation in the evidence that losses in a given year, although they occurred under policies written two, three or five years prior thereto, were in fact paid out of unearned.premiums of previous years. Treating the matter in this light the entire unearned premium should be regarded as income or assets of the plaintiffs. Plaintiffs are correct in arguing, as they do, that the unearned premium paid to the insurance companies is as much a part of their property and assets as any of their other property, and that it is distinguished from their other property only in the respect that by statute they are not permitted to regard it as a surplus and disburse it to their stockholders in dividends prior to the termination of the terms of the policies. But plaintiffs are incorrect in saying that no part of it, or that only some certain portion of it, should be treated as income of the company for rate-making purposes. If all expenses and losses are paid from current receipts, even though the losses occur under policies written in previous years, and if all of this is paid from earned premium, then the unearned premium is not only an income and an asset of the company, but it is in fact profit arising from the underwriting business. If any part of the unearned premium is, or was during the test period, used for the payment of losses or expenses, a showing should have been made of the amount or portion so used, and the amount or portion not used, which showing would demonstrate what part of the unearned premium is really profit; and this, would have been much more accurate than an estimate formed from a consideration of the amount of the unearned premium necessary to effect a reinsurance and the possible profit of the reinsuring company therein. Wc escape all conjecture arising out of the consideration of earned premiums and unearned premiums when we consider the true situation; that is, the statutory requirement (R. S. 40-214) for the computation of unearned premium, otherwise called premium reserve, and the statutory restriction against the distribution of this premium reserve to stockholders in dividends, is designed as a measure of the solvency of insurance companies. It is not well adapted to be used in the consideration of the question of reasonable premium rates. A consideration of such rates will be less complicated by disregarding statutory provisions designed only for the purpose of attempting to secure the solvency of such company. In Ætna Ins. Co. v. Hyde, 285 S. W. 65 (Mo.), plaintiffs made a similar contention to the one made by them here; that the statutory provision for computing unearned premiums, and prohibiting their disbursement as dividends until the terms of the policies had expired, designed as a test of the solvency of the companies, should be used in computing their profits in determining whether the premium rates yield a fair return. The court declined to take that view, discussing the matter at length. Among other things it was said: “ . . . The solvency test is no test at all. . . . The referee, in holding with the plaintiffs in that matter, says that method of arriving at the earnings is not satisfactory. It is not only unsatisfactory; it is utterly indefensible. '. . . ” (p. 72.) Plaintiffs cite and rely on Sun Insurance Office v. Clark, decided by the English house of lords (1912) A. C. 443, in support of their contention that the unearned premium, or premium reserve, should be disregarded in computing their profits. All that was really decided in that case is that the question of what are the profits or gains of an insurance company for a given year, for the purpose of computing the income tax, is a question of fact, and where there is a controversy as to which of two or more methods should be used, that method should be used which shows the true gains or profits. In that case the insurance.company wrote policies for one, three, five and seven years. Under its method of transacting business, paying losses and keeping its books, it carried forward each year 40 per cent of the premiums received during the year as a premium reserve to pay losses on policies written during that year which might accrue under the terms of the policies in future years. The tax commissioner, after examining the records of the insurance company, conceded that this was a fair estimate of the amount necessary to pay such losses, and this was conceded by the government at the trial. The court held that since this method was conceded to be correct on the facts, it should be allowed. The court took pains to explain its previous decision in Life Assurance Corp. v. McGowan (1908), A. C. 207, where it had been held that of the three methods suggested to them in that case the one proper to be used was to deduct the amount of the total losses and expenses paid during the year in question from the gross receipts of that year, the difference to be the profit or gain upon which the tax was to be computed. That method was adopted in that case for the reason that it was the one found toi produce the most accurate results. In Sun Insurance Office v. Clark, supra, the government contended this was announced as a rule of law as the proper method of determining profits, but this contention was denied, and it was pointed out that what are the real profits or gains is in every case a question of fact; that no method used or approved should be regarded as the approval of that method as a question of law, but only because in the particular case it was shown to have produced correct results. In determining income of plaintiffs, premiums are receipts to be taken into account. In Sun Insurance Office v. Clark, supra, Lord Alverstone said: “Premiums are not profits or gains, they are receipts which must be brought into account, and out of which, after proper deduction for losses, profits will accrue.” (p. 457.) In computing income, or profits, of plaintiffs on their underwriting business nothing is gained by dividing premium receipts into two parts — earned premiums and unearned premiums. Such a division only complicates the computation. All premiums should be regarded as receipts, which, together with other receipts, if any, of the underwriting business, constitute the income for the period under consid eration. From the amount of such income should be deducted actual losses and expenses, the difference representing gains, or profits. This may give an accurate result, as in McGowan’s case, supra. If, in fact, a part of such receipts is set aside as a reserve to pay future expenses and losses on existing policies — a reserve which is actually used for that purpose — and the necessary amount of such reserve is shown by the evidence, or agreed upon between the parties, it is proper in determining such profits of plaintiffs to deduct the amount of such reserve from such receipts, as was done in Sun Insurance Office v. Clark, supra. A method of computing profits is sound in law only when the evidence shows that it reaches a sound result. It cannot be regarded as sound when (1) it treats losses and expenses as being substantially more than the amount necessary to pay them, and (2) disregards 65 per cent of unearned premiums, without a showing of the amount, if any, of expenses and losses paid therefrom. Before plaintiffs can properly contend that any part of their underwriting receipts should be set aside as a reserve to pay future losses and expenses on existing policies, and for that reason deducted from such receipts in computing their profits, it was incumbent upon them to show the amount necessary for that purpose and that such expenses and losses were in fact paid from such fund. If future losses and expenses on existing policies are in fact paid from future receipts, there is no reason for allowing the setting aside of such reserve. In this case plaintiffs contended that the unearned premium, or premium reserve, should not be taken into account in computing their profits, and yet it is these same unearned premiums which ultimately become surplus, to be disbursed to stockholders as dividends, or retained as additional surplus, adding to the value of capital and used in the insurance business. Plaintiffs’ contention presents a non sequitur of extraordinary beauty. It has no merit, and cannot be sustained. The fallacy arises from attempting to- apply the statutory solvency test to a computation of profits, and in not regarding all premiums as receipts to be taken into account, as hereinbefore discussed. And the variation from plaintiffs’ contention, made by the referee and trial court, of adding 85 per cent of unearned premiums to earned premiums for the purpose of computing income or profits of plaintiffs, is but little better, since it is not based, and does not purport to be based, upon any actual showing of the true amount of unearned premiums which are in fact earnings or profits. From what has been said it necessarily follows that the method of the referee and trial court of treating premiums in computing the income or profits of plaintiffs is erroneous and cannot be sustained. The referee found that unless the method employed by him in determining underwriting profits — that is, of deducting incurred losses and expenses from earned premiums, plus 35 per cent of unearned premiums — was correct, then the order sought to be enjoined is not unreasonable. We have determined that this method is incorrect. Other, questions, some of them pertaining to procedure, are argued by the parties, but we do not find it necessary to refer to them. From what has been said it necessarily follows that the judgment of the court below be reversed, with directions to enter judgment for defendant. It is so ordered. Burch and Marshall, JJ., dissenting. Hopkins, J., not sitting. Appendix A. — Report of Referee. Findings op Fact. 1. That in determining whether rates are reasonable, fire and tornado insurance should be considered separately and independent of one another. In the determination of this question, in so far as it relates to fire insurance, the amount of such insurance written by the plaintiffs should be considered in the aggregate; that is to say, total income on all classes of risks should be compared with total outgo. It is not proper to divide such risks into classes. In determining the question of rates, the area considered should be the entire state and the time ten years. In all my calculations I have used the figures from 1913 to 1922, inclusive. I have used this period because it was the only one of ten years for which both sides submitted figures and computations. 2. That five per cent of the written premiums is a fair underwriting profit. That, the nature of the business considered, this percentage will always be a varying figure and the whole body of rates should not be changed unless that figure exceeds seven per cent or falls below three per cent. That no additional allowance should be made for so-called “conflagrations” or “catastrophes.” That in computing underwriting profits, earnings on investments should not be considered. 3. -The actual underwriting profits of the plaintiffs during the period in question on all fines of insurance, was $5,745,508. The effect of the rate order is to reduce earnings approximately five per cent of the written premiums. Therefore, had the order been in effect during this period the underwriting profits would have been approximately $1,245,508. These results are arrived at as follows: Premiums earned .......... $85,975,248 Loss incurred ... $45,142,514 Expenses incurred 37,051,850 Total ....... - 82,194,364 Balance ........................................................... $3,780,884 Difference between unearned premium reserve at beginning and end of period .................................................... $5,613,212 (Add) Thirty-five per cent thereof ........................................ 1,964,624 Total underwriting profit .............................................. $5,745,508 (Subtract) Effect of rate order (estimated).................................. 4,500,000 Underwriting profit with rate order applied..............................* $1,245,508 Note. — The 35 per cent of the difference in unearned premium reserve is added because of prepayment of expenses as explained in memorandum. The underwriting profit was 6.29 per cent of the written premiums, which I find is not unreasonably high. Had the rate order been in effect the underwriting profit would have been 1.35 per cent of the written premiums, which I find is unreasonably low. 4. Underwriting profits of the plaintiffs during the period in question on the “earned” basis, without making any allowance for prepayment of expenses, was $3,780,884. Had the rate order been in effect, the underwriting loss on this method of computation would have been approximately $718,716. This result is arrived at as follows: Premiums earned ........................................................ $85,975,248 Losses incurred ............................................... $45,142,514 Expenses incurred ............................................. 37,051,850 ---- 82,194,364 Underwriting profit.................................................... $3,780,884 (Subtract) Effect of rate order (estimated) ................................. 4,500,000 Underwriting loss with rate order applied............................... $718,716 The underwriting profit on the “earned” basis was 4.1 per cent of written premiums, which I find is not unreasonably high. Had the rate order been in effect, the underwriting loss would have been .075 per cent of the written premiums, which is confiscatory. 5. The underwriting profits of the plaintiffs on the basis of written premiums and incurred losses and expenses for the period in question was $9,386,723. With the rate order in effect, the profits on the “written” basis would have been approximately $4,886,723. This result is arrived at as follows: Premiums written ........................................................ $91,581,087 Losses incurred ............................................... $45,142,514 Expenses incurred .............................................. 37,051,850 - 82,194,364 Underwriting profit ................................................. $9,386,723 (Subtract) Effect of rate order (estimated) ................................. 4,500,000 $4,886,723 Underwriting profits on the “written” basis were 10.2 per cent of the written premiums, which I find to be unreasonably high. With the rate order in effect, profits on the “written” basis would have been 5.3 per cent of the written premiums, which I find not to be unreasonably low. 6. Underwriting profits of the plaintiffs on tornado insurance, computed on the earned premium basis without any allowance or prepayment of expenses for the ten-year period, was $2,040,873, which is 21.0 per cent of the written premiums, which I find to be unreasonably high. With the rate order in effect, on the same basis, profits would have been something over $1,000,000 or approximately 11 per cent of the written premiums, which I find not to be unreasonably low. This result is arrived at as follows: Premiums earned.......................................................... $9,220,203 Loss incurred ...................................................$8,129,917 Expenses incurred ............................................... 4,049,413 - 7,179,330 Underwriting profit .................................................... $2,040,873 (Subtract) Effect of rate order (estimated) .................................. 900,000 Underwriting profit with rate order applied............................... $1,140,873 Note. — The effect of the rate order on tornado insurance is an estimate, because the tornado insurance on some classes of risks was not changed. However, the reduction could not in any event be more than 10 per cent of the written premiums. 7. Of all the classes of insurance affected by the order, tornado insurance is the only one I find to be unreasonably high. Had the rate order been in effect only on tornado insurance during the ten-year period, the underwriting profits of plaintiffs on all lines of insurance would have been approximately $4,850,000, which is equivalent to 5.28 per cent of the written premiums, which I find is a reasonable return. I find that the order; in so far as it applies to tornado insurance, is reasonable, and that if sustained the underwriting profits of the plaintiffs on tornado insurance alone will not be unreasonably low and that the underwriting profits of the plaintiffs in the aggregate on all lines of insurance will be fair. 8. For the periods of 1913 to 1917, 1918 to 1922, and 1913 to 1922, the United States net premiums, United States unearned premiums, Kansas net premiums, Kansas unearned premiums, Kansas earned premiums, Kansas losses incurred, and Kansas loss ratios as taken from the annual statements of the stock fire insurance companies doing business in the state of Kansas during these several periods, or computed therefrom, are found to be as follows: Note. — There is a slight discrepancy between the Kansas net premium figures and the Kansas earned premium figures quoted in this finding and those used in findings numbered 3, 4 and 5. This is occasioned by the different methods of computation used and because of the large mass of figures from which these results were obtained, which naturally produced some slight errors. However, the differences are so small that they do not affect in any way the final result. So that for all practical purposes they may be treated as being identical. 9. On the basis of Kansas premiums ($9,859,000) to United States premiums ($4,296,101,000) the share of the total capital and surplus of all companies doing business in the. state apportioned to Kansas for the ten-year period, would be approximately $74,000,000. On the same basis the share of the ‘‘paid, in” capital and surplus apportioned to Kansas would be approximately $56,000,000. 10. On the basis of amount of risk in Kansas ($9,764,000,000), the amount of risk in the United States ($988,178,000,000), the capital and surplus apportioned to Kansas for the ten-year period would be approximately $37,000,000. ' On the same basis the ‘‘paid in” capital and surplus apportioned to Kansas would be approximately $28,000,000. Note. — The total capital and surplus of the companies used in findings numbered 9 and 10 is as of December 81, 1921. 11. I find that it is not proper to allocate capital and surplus to Kansas on any basis for determination of any of the questions presented in this case. However, if any allocation is to be made, I find the one computed on Kansas premiums compared with United States premiums, of the total capital and surplus (which allocates to Kansas $74,000,000 of such capital and surplus), to be correct. 12. If it is proper to allocate capital and surplus to Kansas for the purpose of computing underwriting profits, which I do not believe, I find that there should be added to such allocated capital and surplus ten per cent thereof, the same being the value of plaintiffs’ interest in the agency plants in the state. Note. — The figures above quoted as to capital and surplus cannot be exact, and are not exact, for the reason that foreign companies, which do a substantial share of the business in the state, make no return of their total capital and surplus, but only make a deposit in this country, which entitles them to do business. However, the figures are not far from the truth. 13. The investment earnings of plaintiffs, inclusive of gains from increases. in market value of securities not sold in the United States for the ten-year period, amounts to $289,102,380. Gains in market value of securities hot sold are not in reality earnings, but no evidence was introduced of what such gains amounted to. Therefore, if we are to consider the figure at all, we must use it as it stands. If it is proper, to allocate any portion of such earnings to Kansas to be considered in the making of rates, then on the basis of Kansas premiums to United States premiums the amounts so allocated to Kansas would be approximately $5,782,047. On the basis of amount at risk in Kansas to amount at risk in the United States, the investment earnings allocated to Kansas would be approximately $2,891,023. I do not believe any such allocation should be made, but assuming that it should be made, the basis of Kansas premiums to United States premiums is the correct method to be used. 14. Prior to 1918, the 1909 edition of the Analytic Schedule was in use in Kansas. Just prior to 1919 an application was made by the plaintiff companies to substitute therefor the 1914 edition, which was somewhat different. Representatives of the insurance department and the companies together made an investigation of the effect the proposed schedule might have on existing rates, and after such investigation the application of the companies was granted and the 1914 schedule adopted. Such adoption required the rerating of all the towns in the state and such rerating in many instances showed a change in the rates, sometimes higher, sometimes lower, but on the whole the rates were slightly higher. I am unable to say, however, that this increase was due to the application of the new schedule. Rate changes in the same risk might be caused by so many different factors, such as change of occupancy, change in exposures, the introduction of new hazard in a building, etc., that it is impossible for anyone to determine with any degree of accuracy what elements were responsible for such changes. Additional Findings of Fact by the Referee. 1. Since the filing of my report herein my attention has been called to the fact that after the conclusion of the taking of testimony 'amended figures concerning the earned premiums in the United States and Kansas were by agreement of the parties introduced in evidence by the defendant. The defendant claims that plaintiffs agreed such amended figures were correct. This plaintiffs deny. The fact is that after defendant asked permission to introduce such amended figures in evidence, plaintiffs by letter to me agreed they might be introduced without the necessity of calling any witnesses to identify or verify them, but there was no specific admission that such figures were correct, neither was their correctness challenged. However, whether we use the original or amended figures is of no consequence. It is true the amended figures increase the earned premiums of the plaintiffs in Kansas over the ten-year period by approximately $200,000, but such figures also increase the outgo of plaintiffs over the same period in approximately the same amount, leaving the underwriting profits (and that is what we were seeking to determine) in each case approximately the same. The amended figures as taken from defendant’s Exhibit No. 17 show the following: Earned premiums..........................................$86,171,778 Losses and expenses incurred ............................... 82,383,549 Underwriting profit..................................... $3,778,229 Under the original figures as used by me in my report the underwriting profit was $3,780,884, a difference between the two of approximately $2,600, and that difference in favor of the defendant. 2. Defendant takes the position that he is not contending for the so-called “written” basis in determining the underwriting profits. There is therefore no occasion for finding No. 5 of my original report, and there will be substituted in its place what defendant says is the proper method, which is the following: Add to the incurred losses and expenses 52.35 per cent of the increase in unearned premiums between the beginning and end of the period in question (1913 to 1922, inclusive), and substract the sum total from the net written premiums. That method gives this result: Net -written premiums .................................................... $91,859,673 Loss incurred ................................................. $45,331,699 Expense incurred .............................................. 37,051,850 Plus amount to be paid for loses and cancellation on outstanding policies after expiration of the premium period, or 49.35 per cent for losses plus three per cent for cancellations, equals 52.35 per cent of the increase of the unearned premiums ($5,613,212), equals, 2,938,516 Total outgo ............................................ .. 85,322,125 Underwriting profit ................................................... $6,537,548 Subtract effect of rate order (estimated) .................................... 4,500,000 Underwriting profit with rate order applied................................. $2,037,548 The difference between this plan as contended for by the defendant and what I believe to be the correct method as set out in my finding No. 3, is that under the defendant’s plan nothing is set aside or reserved to take care of the expenses on unexpired policies after the end of the current year in which they are written, and this I think is not proper. While it is true that the major portion of the expenses of writing a policy are incurred in the year in which they are written, it is also true that there are some expenses connected with such policies which come after the end of the year in which they are written, and provision should be made for such expenses. There is the general overhead of carrying on the business, and each policy should pay its proportionate share of such overhead. There are adjustment expenses and legal expenses when losses occur and each policy should pay its proportionate share of those. In determining the income tax to be paid by the companies, their profits are computed upon the earned basis, this being provided for by federal statute, so that as portions of these unexpired policies become earned in the future such earned portions go into income and a tax must be paid thereon, and it is proper that each policy should pay its proportionate share of such tax. I think, therefore, that in so far as the method contended for by the defendant fails to make any provision for future expenses on unexpired policies, it is not correct. Conclusions of Law. 1. The insurance rates existing on tornado insurance are, and were at the time the order was made, excessive and unreasonably high; the rates ordered are reasonable; therefore, the order in so far as it applies to tornado insurance should be sustained. 2. The insurance rates existing on all lines of insurance, other than tornado, are not and were not at the time the order in question was made, excessive or unreasonably high; the rates ordered are unreasonably low; therefore, the order in so far as it applies to such other lines should be set aside. Gilbert H. Frith, Referee. Addenda. For the convenience of the court I will here set out what I regard as appropriate conclusions of law if certain theories of computing profits and determining what are reasonable rates, other than the ones adopted by me, are used. 1. If it is proper to compute underwriting profits on the so-called “written” basis as contended for by the defendant, then the order in its entirety should be sustained, regardless of every other consideration. 2. If earnings from investments, as such earnings are shown in the findings, are to be added to underwriting profits and considered in the making of rates and such earnings are allocated to Kansas on the basis of Kansas premiums to United States premiums, then the order in its entirety should be sustained, regardless of the method used in determining underwriting profits. 3. If earnings from investments are to be considered in the making of rates and such earnings are allocated to Kansas on the basis of amount at risk in Kansas to amount at risk in the United States, then the order in its entirety should be sustained, unless it is found that the correct method of computing underwriting profits is on the “earned” basis without making any allowance for the prepayment of expenses, in which event the order should not be sustained except in so far as it applies to tornado business.	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The opinion of the court was delivered by Burch, J.: J. T. Slusher appeals from a judgment foreclosing mechanics’ liens on his land. The Sycamore Mineral Springs Company owned forty acres of land. Slusher owned twenty acres adjoining the forty-acre tract on the east. The company established a public amusement park, and purchased material of the lien claimants for the construction and erection of improvements in the park. The improvements extended over both tracts, were erected in execution of a single design, and could not be independently operated. After finding these facts, the court stated the following finding of fact and conclusion of law: “Of all of which said defendant, J. T. Slusher, had knowledge, acquiesced therein, and consented thereto, and by reason of the premises is estopped from denying the right of said mechanic’s and materialmen’s lien holders to such liens or their right to foreclose their said respective liens on said twenty-acre tract so owned by him.” The lien statements described the sixty acres as one tract, and named the Sycamore Mineral Springs Company as owner. The pleadings set out contracts with the company to furnish material and the furnishing of material pursuant to the contracts, and claimed liens by virtue of the lien statements. Estoppel was not pleaded, and an essential element of estoppel on the part of Slusher was neither proved nor found. The finding of consent is merely a deduction from the findings of knowledge and acquiescence. No consent was manifested in any manner to the lien claimants. They were not misled or induced to act on account of Slusher’s noninterference with realization of the company’s park improvement plans. They did not rely on anything he did or failed to .do. They furnished material to the company without regard to Slusher's ownership or non-ownership of the twenty-acre tract, or the nature of the company’s privilege to use it, and they were in no position to assert that Slusher had dedicated his land to them as security for payment of the company’s bills. Leaving at one side defect of pleading, proof, and finding of estoppel, the court enforced a mechanic’s lien. In this state a mechanic’s lien is a statutory lien. While the statute has a basis in equity, the legislature has determined the extent to which equity controls, and has prescribed the conditions of the lien. One who furnishes material for the improvement of a tract of land under contract with the- owner, the owner’s trustee, the owner’s agent, the owner’s husband, or the owner’s wife, may acquire a lien on the tract by pursuing a prescribed course. (R. S. 60-1401.) Unless the material be furnished under a contract with 'the owner, his trustee, agent, or spouse, there can be no mechanic’s lien. One who sells building material may always know who his buyer is and where the material is to be used, and is not privileged to sell on the buyer’s credit and then charge the land of another with a lien for the price. In the case of Doane v. Bever, 63 Kan. 458, 65 Pac. 693, Bever had befriended Schwartz, and Schwartz was living with Bever. Bever’s barn burned. Schwartz was notified that his application for a pension had been allowed. As some recompense to Bever for his kindness, Schwartz bought lumber of Doane to build a bam for Bever, and to build a chicken house which Schwartz expected to use. Schwartz explained his financial situation to Doane, and Doane charged the lumber to “Schwartz for A. Bever.” In an action by Doane to foreclose a mechanic’s lien on Bever’s lots, the jury found Schwartz was not Bever’s agent. A lien on principles of equity was contended for. The court said: “The plaintiffs in error also urge that they are entitled to a lien because confessedly the material supplied by them was used in betterments on the premises of defendant Bever. The argument, although made with force and ingenuity, is without weight. They must secure a lien under the statute or not at all.” (p. 462:) The conditions under which a statutory lien may attach and the nature and extent of the lien must be determined from the statute. In the case of Lang v. Adams, 71 Kan. 309, 80 Pac. 593, the court said: “Being created by statute, a mechanic’s lien can only arise under the circumstances and in the manner prescribed by the statute. Under the law the foundation of the lien is the contract with the owner for labor or material.” (p. 310.) As the supreme court of Maine expressed it, the vitality of a lien created solely by statute depends on the terms of the statute, and parties may not “by estoppel enact or enlarge a statute.” (Gile v. Atkins, 93 Me. 223.) In the case of Conroy v. Perry, 26 Kan. 472, a mechanic’s lien case, the syllabus reads: “One who claims a right given solely by statute must bring himself fairly within the terms of the statute.” (H 2.) In the opinion by Justice Brewer it was said: “The court can make no law and give no lien except as prescribed by statute.” (p. 475.) In this instance no attempt was made to establish the relation of principal and agent between the Sycamore Mineral Springs Company and Slusher. The facts were these: Slusher gave the company an option to purchase his twenty acres. The company made what it called subleases to concessionaries, on the assumption it had a lease from Slusher, although he had given no lease. A sublessee became fearful he might be bound in some manner to Slusher, and the company, Slusher, and the sublessee entered into a written agreement defining their relations. This instrument, dated April 12, 1921, recited that the company had leased Slusher’s land for a term of three years ending March 1, 1924. After execution of the instrument, Slusher could not dispute that the company was his lessee and, reverting to the subject of estoppel, he could not have forbidden the erection of improvements on his land by his lessee had he desired to do so. The liens were filed in September and October, 1921. The district court did not find the facts disclosed by the evidence regarding the relations between the company and Slusher. Had it done so, the lien claimants might have been allowed mechanics’ liens on the company’s leasehold estate. The court preferred to make an order which would embrace the entire estate. The subject is of no importance now, because the lease expired in March, 1924. The holder of a naked option to purchase is not an owner, within the meaning of the mechanic’s-lien statute. The judgment of the district court is reversed, and the cause is remanded with direction to modify the judgment by denying foreclosure of the mechanics’ liens so far as they relate to Slusher’s land.	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The opinion of the court was delivered by Hopkins, J.: The action was one to recover on a promissory note which had been executed in payment for stock in the Savage Harvester Company. There were various defenses, general denial, no consideration, fraudulent misrepresentations, no (blue sky) permit to sell the stock, etc. The court directed a verdict for plaintiff for $4,753, and defendant appeals. The facts were, substantially, these; On February 21, 1921, the plaintiff entered into a written contract with the Savage Harvester Company, of Denver, Colo., by the terms of which the Savage company agreed to purchase certain combined threshing outfits from the plaintiff, which the plaintiff agreed to manufacture. The Savage company, in order to secure the performance of the contract, was to deposit with the plaintiff collateral security amounting to $50,000. The note in controversy was procured from the defendant and delivered to the plaintiff under the terms of the contract, some time in March, 1921. The question presented by this appeal is whether the evidence that plaintiff was a holder in due course was so clear and unequivocal as to leave no difference of opinion among fair-minded men; i. e., whether the court erred in taking the case from the jury and directing a verdict. L. S. Weller testified that he was the manager of the Salina Motor Company; that the Salina Motor Company was the agent of the Savage Harvester Company in the sale of the stock in question; that one O’Shaughnessey was also an agent of the Savage company, stated that the stock was worth $150 a share, and that they had orders for several hundred machines. The defendant testified that at the time of the execution of the note in controversy O’Shaughnessey, a man named Wood, and Weller, represented to him that the Savage Harvester Company had a manufacturing plant in Denver and were manufacturing and selling machines in a number of states, and had been selling them for three or four years, and that the stock was selling for $150 a share, and was worth that amount. He testified that he believed all of these representations and relied upon them, and that he purchased $8,000 worth of stock and gave the note in question, along with other notes and $500 in liberty bonds; that no stock was ever delivered to him, and that he did not learn of the fraud practiced upon him until about the time this suit was filed. Weller also testified that the Savage company had no manufacturing plant in Denver; that all it had was a small part of a building leased for the purpose of assembling machines. The defendant in troduced in evidence the contract between the plaintiff and the Savage company, which shows that the statement that the Savage Harvester Company had a plant in Denver and was manufacturing machines was untrue. The contract disclosed the fact that the Savage company was contracting with the plaintiff for the manufacture of all of its machines. J. E. Welborn, general manager of the plaintiff company, among other things testified: “I did not personally examine these notes before receiving them. Mr. E. Clyde Hammond and Attorney A. A. Lee carried on the negotiations. . . . I think there was something said that the notes were to be given for the sale of stock of the Savage Harvester Company, but I did not make an examination relative thereto.” The witness Weller also testified that in a conversation with Hammond, Hammond stated that “the Reed Foundry people were a bunch of chumps for getting mixed up with the Savage company and that they had gone into the deal against his protests”; that “the Savage company was at the time they went into the contract practically defunct, and that they had taken a bunch of stock notes to guarantee the performance of that contract.” The great bulk of defendant’s evidence was excluded by the court for one reason or another. For instance, the defendant offered in evidence eight letters written by the plaintiff to the Savage company which leave at least a fair inference that the plaintiff was familiar with the Savage company’s dealings in these matters. One of the letters, written before plaintiff received the note in controversy, said: “In the second place, we are not going to put any more money into the proposition than we have invested so far until you show us that the $50,000 security you propose to give is acceptable. We learn through Mr. Hammond that the notes you hold, given for stock, are considered , . . worthless. This is probably not because the makers are not responsible, but due to the laws of your state. In other words, if the makers of these notes repudiate payment your courts will uphold them and there is no way for us to recover.” In .another, plaintiff said: “It would appear, however, from the information we get and from what Mr. Hammond has wired us (we have had no letter from him as yet), that the Savage Harvester Company affairs are very badly involved to say the least, and at this long distance we are of the opinion that everything has not been handled in a manner which would tend to increase our confidence in your organization.” In still another, plaintiff said: “We are asking Mr. Hammond to investigate the rumor that you have failed to comply with the ‘blue-sky laws’ and also the security you propose to furnish. We know that you will give him eveiy assistance and make the task as short as possible so we may be at liberty to proceed with the manufacture of tractor and harvester.” Testimony that the secretary-treasurer of the Savage company (later) informed the defendant that it never had any manufacturing plant in Denver, was stricken out, as was also evidence that the company had never sold any machines, that it did not have consent to sell stock in Kansas at the time defendant’s notes were taken. The defendant offered also to show that in 1923 he made a complete investigation of the assets of the Savage company during the year 1920 and was familiar with the actual value of its stock at the time the Savage company procured his note; also to show that he contracted for a harvester and tractor and gave his note for $2,500 for the same; that although the machine was never delivered to him, his note was sold by the company. These offers were made upon the theory that he had an opinion as to the value of the Savage company’s stock, and offered to show its value. The offers were refused. He testified that he examined the records in the “blue-sky” department of the bank commissioner’s office of the state of Kansas and that there was no record in that office showing that the Savage company had a permit to sell its stock at the time of the execution of the note. This evidence was stricken out by the court. In support of a motion for a new trial the defendant filed an affidavit alleging that after the action was filed and before trial he made at least ten trips from his home in Hill City to Denver for the purpose of obtaining evidence in this action, and that ón each trip he attempted to learn the whereabouts of O’Shaughnessey, former agent of the Savage company, and Curtis Baldwin,- president of the company; that he was not able to locate them until after the trial. He offered Baldwin’s affidavit which, among other things, recited that no- stock was ever delivered to the defendant for his note; that he (Baldwin) turned over to A. A. Lee, representing the plaintiff, the note of the defendant, together with others; that before accepting the notes Lee made a careful investigation of each of them and was informed that the defendant had never received his stock for such note. He also informed Lee of all other facts respecting the stock sale transaction. Defendant offered also an affidavit of Elson H. Whitney, a lawyer of Denver, to the effect that he had been attorney for the Savage company and that, among other things, he had called upon A. A. Lee, representing the plaintiff, upon several occasions, and on more than one occasion had discussed with Lee the nature of the securities deposited with the plaintiff, and that Lee was fully informed relative to the notes and securities and consideration therefor, and that no stock of the Savage company had, up to that time, been delivered to the makers of such notes. There were other matters set out in the affidavits of more or less materiality. We are of opinion the showing of the defendant of diligence was sufficient and that- there were allegations of newly discovered evidence which, under all the circumstances, would have warranted the trial court in granting a new trial. We are also of opinion that the court should, have shown greater latitude in the introduction of evidence. “On the trial of a civil action in which, the claim for release is based upon allegations of fraud great latitude should be given in the introduction of evidence tending to disclose the alleged fraud.” (Brakefield v. Shelton, 76 Kan. 451, Syl. ¶ 3, 92 Pac. 709.) The letters which were offered by the defendant, together with the testimony of Weller, Welbom and the defendant, were sufficient to show that the plaintiff was familiar with the dealings of the Savage company to such an extent that its good faith in accepting the defendant's note might well be questioned. There is a controversy between the parties as to whether or not the defendant, on the hearing of the motion for a new trial, reoffered in evidence the rejected letters and the evidence that had been stricken out. The defendant asserts that all such evidence was again offered. The plaintiff claims it was not. We think it can make no difference. “It is entirely proper-and good practice for an attorney to apprise the court of what he hopes or expects to prove by a witness (Eagon v. Eagon, 60 Kan. 697, 57 Pac. 942), and where the rejected evidence is documentary and is preserved the supreme court can examine it and its formal reoffering in support of the motion for a new trial may be ignored (Bank v. Seaunier, 104 Kan. 7, 8, 178 Pac. 239; Bellport v. Harkins, 107 Kan. 454, 192 Pac. 730); also, where the testimony of a witness has been introduced or,partially introduced and is then excluded, it is unnecessary to reproduce it on the hearing of the motion for a new trial, since the trial court knows what the evidence is and the supreme court can gather its substance.” (Leach v. Urschel, 112 Kan. 629, 635, 212 Pac. 111.) We are of opinion that the evidence to which attention has been called should not have been stricken out, and that the letters should have been admitted. In Pioneer Trust Co. v. Combs, 117 Kan. 89, 90, 230 Pac. 302, it was said, in the opinion: “Where because of fraud in the inception of a note the plaintiff has- the burden of proving that he is a holder in due course the question whether he has met the requirement is ordinarily one for the jury. (Trust Co. v. Gill, 113 Kan. 261, 270, 214 Pac. 413.) There is, however, an exception to this general rule, recognized by this and many other courts, which has been thus expressed: ‘unless that evidence is so clear and unequivocal as to leave no room for difference of opinion concerning it among fair-minded men.’ (Beachy v. Jones, 108 Kan. 236, 195 Pac. 184.)” The instant case, in our opinion, does not fall within the exception. The evidence was sufficient to take the case to the jury. In Beachy v. Jones, 108 Kan. 236, 241, 195 Pac. 184, the court, in applying the law to the evidence, said: “Be that as it may, the question whether Beachy was a holder in good faith was clearly a question for the jury, under section 66 of the negotiable-instruments act. In Phillips v. Eldridge, 221 Mass. 103, the court said: ‘There was evidence that the note here in suit was procured by duress practiced by the payee on the makers. If that evidence was believed, the plaintiff to recover had the burden of proving that he was a holder in due course as defined in R. L., c. 73, § 69. The plaintiff and the payee, when called as adverse wit nesses by the defendants, testified to facts which would have warranted a finding that the plaintiff was a holder in due course. But the jury were not bound to believe their testimony, although uncontradicted, and therefore a verdict for the plaintiff could not have been directed as a matter of law. When testimony warranting a finding that the plaintiff was a holder in due course of a note originating in fraud is given by witnesses called by the plaintiff, it is settled that a verdict cannot be directed for the plaintiff as matter of law. (p. 104.)’ “In Arnd v. Ayleswotrth, 145 Ia. 185, on a similar question, it was said: ‘And to justify the court in directing a verdict in her favor the testimony of the bona jide character of her holding must not only be without substantial evidence tending to impeach it, but the showing in its support must be so clear and unequivocal as to leave no room for difference of opinion concerning it among fair-minded men.’ (p. 188.) “In Bank v. Fountain, 148 N. C. 590, the rule was thus stated: ‘When it has been established or there is allegation and evidence tending to show that a negotiable instrument was procured by fraud, in a suit by one claiming to be the holder in due course, it was error for the trial judge, upon supporting evidence, to charge the jury that the prima jade case of the plaintiff was restored by his uncontradicted testimony; that he acquired the note in the usual course of business, before maturity and without notice of any vice in it, as the burden of proof thereof was upon plaintiff, and the question as to the issue and the credibility of the evidence thereon was one for the jury.’ (Syl. 2.)” See, also, Trust Co. v. Gill, 113 Kan. 261, 214 Pac. 413; Standard Investment Co. v. Gill, ante, p. 421; and see, also, Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008; Prewitt v. Sholl, 120 Kan. 158, 242 Pac. 149. The judgment is reversed and the cause remanded, with instructions to grant a new trial. Btjrch, J., dissenting.	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The opinion of the court was delivered by Marshall, J.: The history of this litigation is as follows: In Stillie v. Stillie, 115 Kan. 421, 223 Pac. 281, a judgment of the district court granting a new trial was affirmed on February 29, 1924. The action had been first tried by George H. Whitcomb, judge of the district court of Shawnee county, division No. 2, and a new trial had been granted by him, after a demurrer to the evidence of the plaintiff had been sustained. After that judgment was affirmed, a trialwas had in the district court of Shawnee county before Oscar Raines, judge pro tern,., which resulted in a verdict and judgment in favor of the plaintiff. From that judgment the defendants appealed. That judgment was rendered November. 17, 1924, and was affirmed in Stillie v. Stillie, 119 Kan. 816, 244 Pac. 844. Thereafter, within proper time, a motion for rehearing was filed by the defendants and an opinion denying a rehearing is reported at Stillie v. Stillie, 120 Kan. 565, 244 Pac. 844. Thereafter an extension of time was granted in which the defendants could file a second motion for rehearing. That has been done, and with it has been filed a motion to set aside the judgment on the ground that it was obtained by fraud and corruption on the part of the plaintiffs. A motion has also been filed suggesting that Zachariah Stillie, one of the defendants, died January 8, 1923, leaving no children, and that Lewis Stillie, another of the defendants, died July 2, 1924, leaving Roberta Stillie, Blanch Stillie Menor, Eugene Stillie, Hiram Stillie, Isaac Stillie, and Ethel Stillie Battle, his children, surviving him. The second motion for a rehearing reargues all the matters of law that were presented when the last appeal was first heard by this court and all the matters that were presented in the first motion for rehearing which was denied in Stillie v. Stillie, 120 Kan. 565, 244 Pac. 844. The majority of the court adheres to the principles of law previously declared in the opinions found in Stillie v. Stillie, 119 Kan. 816, 244 Pac. 844, and in Stillie v. Stillie, 120 Kan. 565, 244 Pac. 844. These principles will not be further discussed. The death of Zachariah Stillie and Lewis Stillie occurred before the judgment was rendered in this action. There has been no consent that the action be revived against their heirs. More than one year has elapsed since their death and since the judgment was rendered.' The court does not have the heirs of Zachariah Stillie and Lewis Stillie before it and is powerless to make any order against them. This is a matter that must be handled by the parties to this litigation as to them seems best. The motion to set aside the judgment on the ground of fraud and corruption on the part of the plaintiffs presents a serious matter. That motion sets out the following contract: “State of Kansas, County of Shawnee. “Personally appeared before me, a notary public, Jack Johnson, guardian of Irene Stillie Jackson, Lena McDowell and Henry McDowell. We hereby agree by and between Irene Stillie Jackson, through her guardian, Jack F. Johnson, party of the first part, and Lee Skidmore and Ida Skidmore and parties of the second part. “All parties do hereby agree that in consideration of the Skidmores influencing or securing the proper signatures of Carl Jackson of Carthage, Mo., making correct statements and signing papers to whether he is or is not the father of Irene. In the case of Carl Jackson signing and admitting such papers, Lee Skidmore and Ida Skidmore are to become in full possession of lots, beginning on the southwest comer of King and Lincoln, then south to Porter’s fence, and then west to the alley, then north to place of beginning, and all the appurtenances thereto belonging. Jack Johnson. Lee Skidmore. Lena McDowell. (His mark X) Henry McDowell. Irene Jackson Stillie. “Subscribed to before me this 29 day of Aug. 1922. (Seal) Van Smith, Notary Public. “My Com. Ex. Dec. 16, 1924.” The contract recites that Jack Johnson was the guardian of the plaintiff. Lena McDowell, one of the contracting parties, was the mother of the plaintiff, and Irene Jackson Stillie was the plaintiff. The motion alleges that the affidavit of Carl Jackson was obtained as provided in the contract; that it was sworn to August 25, 1922; and that the appellants first learned of the existence of a contract about May 27,1926, and did not see it until June 1, 1926. It appears from the opinion in Stillie v. Stillie, 115 Kan. 420, 223 Pac. 281, that the affidavit of Carl Jackson was used to procure a new trial before Judge Whitcomb. The motion shows an attempt to pervert justice at its source, and shows an attempt which if successful cannot be permitted to stand. The rule is that this court determines appeals on records made in the trial court, but that rule has not always been strictly followed. In Caldwell v. Modern Woodmen, 90 Kan. 175, 133 Pac. 843, this court said: “A judgment upon an insurance policy based, upon the presumption of the death of the insured person after an unexplained absence of over seven years was affirmed. Afterwards, and while the action was pending upon a motion for a rehearing, evidence was filed in this court tending to prove that the insured person was still alive. A rehearing was granted upon the question whether the issue of death should be again tiled in the district court, and upon that question, on leave given to both parties, additional evidence was filed in this court tending further to prove that the insured is living. No evidence is presented to the contrary. It is held: (1) That upon the circumstances of this case the defendant is not precluded from asserting that the insured is still alive by its failure to discover and produce proof of that fact at the trial; (2) that this court has jurisdiction to allow a new trial of the single issue of death. “While this court has no jurisdiction to determine the issue of death presented in the pleadings, it may, in the exercise of appellate jurisdiction, consider the new evidence in determining the question whether that issue shall be retried in the district court. “In the extraordinary situation presented, in order that the truth may be ascertained and justice done, a new trial of the issue to determine whether the insured person was living when the action was commenced is allowed.” In Craig v. Craig, 110 Kan. 13, 202 Pac. 594, this court said: “The supreme court has both inherent and statutory power to prescribe a rule of procedure whereby an order of the supreme court reversing a judgment which was procured by the fraud of a litigant may be set aside and corrected.” In Craig v. Craig, 112 Kan. 472, 212 Pac. 72, the court said: "Following the decision in the preliminary hearing of this case, 110 Kan. 13, 202 Pac. 594, it is held that the supreme court is possessed with inherent and statutory power to set aside or correct an order of reversal of a case procured by the -fraud of one of the litigants, notwithstanding the mandate has been spread in the district court and the cause there dismissed. This court has like power to prescribe a rule of procedure for setting aside or correcting such an order.” In Ridge v. Manker, 132 Fed. 599, 601, the eighth circuit court of appeals said: “An appellate court may avail itself of authentic evidence outside of the record before it of matters occurring since the decree of the trial court when such course is necessary to prevent a miscarriage of justice, to avoid a useless circuity of proceeding, to preserve a jurisdiction lawfully acquired, or to protect itself from imposition of further prosecution of litigation where the controversy between the parties has been settled, or for other reasons has ceased to exist.” Under the rule to which this court is adhering in the present action, it was necessary to show ‘that Carl Jackson was not the father of the plaintiff. She with her mother entered into the contract to procure the affidavit of Carl Jackson. With his affidavit, a new trial was procured; without the affidavit, a new trial possibly would not have been granted. On the new trial, the mother, Lena McDowell, was a material witness and testified that Jackson Stillie was the father of the plaintiff. If the contract had been shown on the cross-examination of the witnesses, it would have affected the credibility of those who signed it to such an extent that it might have caused the jury to disbelieve their testimony. If the contract set out in the motion was signed as there alleged and a false affidavit from Carl Jackson was obtained in obedience to that contract, it was a fraud practiced on the court in favor of the plaintiff, a fraud that was extrinsic or collateral to the matter tried by the court. In Garrett v. Minard, 82 Kan. 338, 341, 108 Pac. 80, it was said: “It was stated as a general rule ‘that an act for which a court of equity will set aside or annul a judgment between the same parties, rendered by a court of competent jurisdiction, has relation to fraud extrinsic or collateral to the matter tried by the first court, not to fraud in the matter on which the judgment was rendered. By the expression “extrinsic or collateral fraud” is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy.’ ” In Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079, the court said: “The fraud which will authorize a court to vacate a judgment in an action brought for that purpose under section 570 of the code of civil procedure must be extrinsic or collateral to the matter involved in the former action, and sufficient to justify the conclusion that but for such fraud the result would have been different.” Section 60-3007 of the Revised Statutes provides that— “The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made ... for fraud, practiced by the successful party, in obtaining the judgment or order.” The cause is remanded to the trial court with directions to ascertain the truth of the matter set out in the motion filed in this court and to grant a new trial if it be found that the allegations of the motion are true. Johnston, C. J., and Burch and Harvey, JJ., dissent from the order adhering to the principles of law declared in Stillie v. Stillie, 119 Kan. 816, 244 Pac. 844, and Stillie v. Stillie, 120 Kan. 565, 244 Pac. 844.	[ -16, -22, -76, 76, 12, -32, 98, -110, 67, -95, -80, 83, 41, -62, 5, 125, 74, 45, 84, 105, -58, -105, 22, 72, -30, -14, -39, -43, -79, -36, -4, -42, 76, 48, 10, -43, -26, 104, -59, 84, -122, 4, -88, -20, 91, -126, 60, 121, 82, 75, 53, 38, -61, 43, 28, -61, 40, 61, 95, -69, 89, -40, -126, -57, -19, 20, 51, 32, -102, -91, 56, 62, -40, 53, 0, -20, 115, -74, -122, 116, 105, -119, 13, -26, 99, 99, 25, -17, -68, -102, 30, 55, 29, -26, -110, 88, -29, 73, -74, -99, 117, 112, 11, -6, -29, -123, 28, 60, 7, -113, -106, -79, 7, 59, -102, 23, -13, -121, 48, 113, -123, -78, 92, 71, 17, -13, -121, -105 ]
The opinion of the court was delivered by Harvey, J.: This is an action for damages for personal injuries. It is predicated upon the doctrine of res ipsa loquitur. There was a verdict and judgment for plaintiff. Defendant has appealed, and contends the court erred in overruling its demurrer to plaintiff’s evidence, in refusing to submit special questions, and to give instructions requested, and in the instructions given. The questions here to be determined depend upon the proper understanding of the doctrine expressed by the maxim res ipsa loquitur and its application to the case before us. Briefly, the facts are substantially as follows: The defendant Light and Power Company, under a written contract with, and ordinances of, the city of Kansas City, Mo., installed and maintained ornamental street lights upon certain streets of the city, including Grand avenue. In November, 1921, the American Legion convention met in Kansas City, and as a part of its program gave a street parade one afternoon. Plaintiff, a man fifty-eight years of age, a carpenter by trade, and a resident of Kansas City, Kan., and his son, a young man about twenty years of age, were among the spectators viewing the parade. The street was crowded. While plaintiff was standing on the sidewalk on Grand avenue, near one of the ornamental light posts constructed and maintained by defendant, viewing the parade, some one yelled “Look out!” Plaintiff looked up and saw one of the lamp globes falling toward him. He involuntarily threw his hand above his head. The lamp globe struck his hand, fell to the pavement and broke into many pieces. When the lamp globe struck his hand it cut a deep gash in the palm, near the base of the thumb, causing serious injury. On this appeal there is no controversy over the extent of plaintiff’s injury, nor the amount of the verdict — if plaintiff is entitled to recover — hence we shall not concern ourselves with these matters. It was a clear day, with but little wind blowing. While the crowd was noisy, there is no evidence that anything was being dragged about the street, nor that missiles of any character were being thrown through the air. Having shown these facts, plaintiff rested. Defendant’s demurrer to the evidence was overruled. Defendant then offered evidence that the lamp, globe and fixtures were of the kind known as the upright Tilk lamp, the kind required by its contract with, and the ordinances of, the city, and that the same was a-substantial lamp, fixtures and globes, entirely suitable for the purpose. It was practically conceded in the court below, and is conceded in this court, that no fault is found with the design of the lamp or fixtures. Defendant offered further evidence that it had competent, careful employees who installed, inspected and maintained the lamps; that a day or two before the parade its employees had taken the globes from the lamps, washed them and put them back. The employees who did the work testified to the careful manner in which this was done, and that each globe was put in its proper place and fastened with the set screws provided for that purpose, and the light bulb properly fixed inside of the globe, and when so' placed and fastened the globe could not get loose nor fall unless it was struck with something and broken loose, and that the lamps and fixtures were inspected daily. They did say that, considering the possibility of error in any human endeavor, there was a bare possibility that some globe was not properly placed, or the set screws properly tightened, and the light bulb not properly placed in the globe, in which event the globe would roll off easily. Defendant requested a peremptory instruction in its favor; this was denied. It then asked the court to submit to the jury three special questions: (1) What caused the lamp globe to fall? (2) What defect existed in the construction or maintenance of the globe and fixtures; and (3) if they found for plaintiff, to state of what defendant’s negligence consisted. This request was refused. There is also a controversy concerning instructions refused, and those given, which will be later noted. We shall not undertake an exhaustive treatment of res ipsa loquitur. Literally translated the phrase means “the thing itself speaks,” or “the thing speaks for itself.” It is a term used in a limited class of negligence cases, referring to the method of proof of general negligence (as distinct from proof of specific negligent acts or omissions), by proving the injury, together with the accompanying circumstances, from- which it may be inferred, and is reasonable to infer, that the casualty happened only because of some negligence of defendant. In actions for damages because of defendant’s negligence, the general rule is, of course, that the negligence of defendant is never presumed, but must be established by proof. The cases in which res ipsa loquitur is applicable are not exceptions to the general rule. “It does not dispense with proof of negligence in personal-injury cases.” (Root v. Packing Co., 88 Kan. 413, 424, 129 Pac. 147.) Rather, in cases in which the phrase is applicable, proof of negligence is made, if at all, by circumstantial evidence; that is, the proof of the casualty and of the surrounding circumstances are such as to léave no reasonable conclusion to be drawn therefrom other than that the casualty happened because of the negligence of defendant. In Marceau v. Rutland R. R. Co., 211 N. Y. 203, it was said: “It is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify the conclusion that the accident was caused by negligence. The inference of negligence is deducible, not from the mere happening of the accident, but from the attendant circumstances. ‘It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury; but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred, contain, without further proof, sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer.’ (Shearman & Redfield on Negligence, § 59.)” (p. 206.) In Griffen v. Manice, 166 N. Y. 188, it was said: “It is not the injury, but the manner and circumstances of the injury, that justify the application of the maxim and the inference of negligence. . . . The application of the rule presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue, the defendant’s negligence. The maxim is also in part based on the consideration that where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present. Neither of these rules — that a fact may be produced by circumstantial evidence as well as by direct, and that where the defendant has knowledge of a fact but slight evidence is requisite to shift on him the burden of explanation — is confined to any particular class of cases, but they are general rules of evidence applicable wherever issues of fact are to be determined either in civil or criminal action.” (p. 193.) In Benedick v. Potts, 88 Md. 52, it was said: “In no instance can the bare fact that an injury'has happened, of itself and divorced from all the surrounding circumstances, justify the inference that the injury was caused by negligence. It is true that direct proof of negligence is not necessary. Like any other fact, negligence may be established by the proof of circumstances from which its existence may be inferred. . . . This phrase (res ipsa loquitur), which literally translated means that ‘the thing speaks for itself,’ is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as the cause of that accident.” (p. 55.) In Stewart v. Carpet Co., 138 N. C. 60, 66, it was said: “The doctrine does not dispense with the requirement that the party who alleges negligence must prove the fact, but relates only to the mode of proving it. The fact of the accident furnishes merely some evidence to go to the jury, which requires the defendant ‘to go forward with his proof.’ The rule of res ipsa loquitur does not relieve the plaintiff of the burden of showing negligence, nor does it raise any presumption in his favor. Whether the defendant introduces evidence or not, the plaintiff in this case will not be entitled to a verdict unless he satisfies the jury by the preponderance of the evidence that his injuries were caused by a defect in the elevator attributable to the defendant’s negligence. . . . The judge should carefully instruct the jury as to the application of the principle, so that they will not give to the fact of the accident any greater artificial weight than the law imparts to it.” We are aware that in Price v. Met. Street Ry. Co., 220 Mo. 435, it was held that in an action for damages in which the doctrine of res ipsa loquitur is applicable, an instruction placing on plaintiff the burden of proving the negligence of defendant was properly refused, for the reason “it destroys every vestige of the doctrine of presumptive negligence,” and this holding has been followed in Bloom v. Union Electric Light & Power Co., 251 S. W. 411 (Mo.), and in Carlson v. Kansas City, Clay County & St. Joseph Auto T. Co., 282 S. W. 1037 (Mo.). But these cases appear not to be in accord with the great weight of authority, and we are unable to follow the reasoning in them. We regard it as much more in accordance with Justice, and as involving fewer complications, in every action for damages because of negligence of defendant, to require the plaintiff to establish the negligence of defendant by proof, either by direct or by circumstantial evidence, in accordance with the well-known rules of evidence applicable to civil cases. In Allen, Appellant, v. Kingston Coal Co., 212 Pa. St. 54, it was said: “The doctrine res ipsa loquitur, dangerous and uncertain at best, is never to be applied except where it not only supports the conclusion contended for, but also reasonably excludes every other.” (See, also, Minneapolis General Electric Co. v. Cronon, 166 Fed. 651.) In 29 Cyc. 590, it is said: “While, as already shown, negligence is never presumed and cannot be inferred from the injury alone, it may be inferred from evidence of the injury in connection with the facts and circumstances under which it occurred. In many cases it is laid down that negligence may be presumed where the injury is caused by an act which in the ordinary course of things would not have resulted in injury if due care had been used in its performance. Perhaps a more accurate statement is that where defendant owes to plaintiff a duty to use care, and the thing causing the accident is shown to be under the management of defendant or his servants, and the accident is such that in the ordinary course of things does not occur if those who have the, management or control use proper care, the happening of the accident in the absence of evidence to the contrary is evidence that it arose from the lack of requisite care. Even under these circumstances the happening of the accident is- merely prima facie evidence and not conclusive proof of negligence. The maxim res ipsa loquitur was originally limited to cases of absolute duty or an obligation practically amounting to that of insurer under a contractual relation, but has been extended to actions sounding in tort where no contractual relation existed. So that when the physical facts of an accident themselves create a reasonable probability that it resulted from negligence, the physical facts are themselves evidential and furnish what the law terms ‘evidence of negligence’ in conformity with the maxim res ipsa loquitur.” (p. 591.) In 5 Wigmore on Evidence, § 2509, it is said: . “With the vast increase, in modern times, of the use of powerful machinery, harmless in normal operation, but capable of serious human injury if not constructed or managed in a specific mode, the question has come to be increasingly common whether the fact of the occurrence of an injury (unfortunately now termed ‘accident,’ by inveterate misuse) is to be regarded as raising a presumption of culpability on the part of the owner or manager of the apparatus. ‘Res ipsa loquitur1 is the phrase appealed to as symbolizing the argument for such a presumption. . . . “What the final accepted shape of the rule will be can hardly be predicted. But the following considerations ought to limit it: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. It may be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.” The maxim has been applied by this court in S. K. Rly. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45; Mo. Pac. Rly. Co. v. Johnson, 55 Kan. 344, 40 Pac. 541; A. T. & S. F. Rld. Co. v. Elder, 57 Kan. 312, 46 Pac. 310; Railroad Co. v. Burrows, 62 Kan. 89, 61 Pac. 439; Potter v. Rorabaugh, 83 Kan. 712, 112 Pac. 613, and perhaps in other cases. Its application has been denied in Root v. Packing Co., 88 Kan. 413, 129 Pac. 147; Cloud v. Traction Co., 103 Kan. 249, 173 Pac. 338; Cash v. Oil Refining Co., 103 Kan. 880, 176 Pac. 980, and in other cases, some of which are cited in the cases named. Naturally, when plaintiff has produced evidence of defendant’s negligence, even though the showing be made by circumstantial rather than by direct evidence, the defendant, to relieve itself from liability, is under the duty of producing evidence to the effect that the injury was not due to its negligence. This may be done by showing due care on its part (even without showing what caused the injury), or by evidence showing that it was caused by the acts of some third person, or by vis major (10 C. J. 1036). We are aware that in Minihan v. Boston Elevated Railway, 197 Mass. 367, it was said: “What is meant by the statement that res ipsa loquitur applies where there is no explanation by the defendant ... is that this rule applies where the defendant does not show what caused the accident.” (p. 373.) But this places too much of a burden upon defendant, unless it be a case in which the defendant stands in the relation of an insurer of the safety of plaintiff. Obviously, one whose duty is to exercise due care should be relieved from liability unless it can be said from the evidence that he has failed to exercise such due care, and that such failure was the proximate cause of plaintiff’s injury. And this should be true, although defendant is not able to show a specific reason for the casualty, for then he is in no worse situation than is the plaintiff who cannot show such specific cause. Naturally, if defendant is able to show that the casualty was occasioned by the acts of third persons, or vis major, he should be permitted to do so, and such showing will relieve him of liability. But the fact still remains that the casualty might have been caused by the acts of third persons, or vis major, without the defendant being able to prove that fact, and his inability to so prove it should not make him liable. He should be relieved of liability if, from all the evidence tending to prove defendant’s negligence, together with his showing of due care, the jury cannot reasonably say that the defendant was negligent. In Carmody v. Boston Gas & Light Co., 162 Mass. 539, an action for damages caused by the escape of gas from a broken gas pipe, the following instruction was approved: “The mere fact that a pipe broke and the gas escaped is not of itself sufficient to establish the liability of the company. It is evidence for you to consider upon the question of neglect; but there is other evidence bearing upon this question of neglect, and so it becomes a matter for you to determine, in view of all the evidence bearing upon the question, the burden being upon the plaintiffs to satisfy you, as a result of all the evidence, that there was in fact a neglect by the defendant, through which, and by means of which, this gas escaped.” (p. 540.) In the opinion it was said: “Instructions that evidence ‘is sufficient to show,’ or ‘has a tendency to show,’ or ‘is enough to show,’ or ‘is prima facie evidence of,’ are not to be understood as meaning that there is a presumption of fact, but that the jury are at liberty to draw the inference from them.” (p. 542.) This ruling has been approved in Greaney v. Holyoke Water Power Co., 174 Mass. 437; Brown v. Kansas Natural Gas Co., 299 Fed. 463, 465, and in other cases. To our mind it correctly states the rule for the consideration of such evidence without placing an undue burden either upon the plaintiff or the defendant. See, also, Sweeney v. Erving, 228 U. S. 233; 20 R. C. L. 184-195. The doctrine expressed by the maxim res ipsa loquitur, as above discussed, has been repeatedly applied when persons rightfully upon streets or highways have been injured by the falling of objects which the defendant, in the exercise of due care, was under the duty of maintaining in such a way that it would be safe for persons to be upon or pass along such streets or highways. See Kearney v. L. B., &c., Railway Co., 5 Q. B. 411; 13 R. C. L. 443, 501; 29 Cyc. 593, and cases there cited; and it has been applied by this court in Potter v. Rorabaugh, 83 Kan. 712, 112 Pac. 613, and Atchison v. Plunkett, 8 Kan. App. 308 (reversed on other grounds, 61 Kan. 297, 59 Pac. 646). Viewing this case as a whole it is a proper one for the application of res ipsa loquitur. The lamp and fixtures were such that ordinarily no injury would be expected from their use if carefully constructed and maintained. Although defendant was not an insurer of the safety of those who use the streets, the duty of carefully constructing and maintaining the lamp so that it would not be likely to cause injury to those who rightfully used the street, was upon the defendant, under its contract with, and the ordinances of, the city, and the injury happened without any voluntary action of plaintiff. Turning now to the specific questions urged by defendant upon this appeal. It was not error for the court to overrule the demurrer to plaintiff’s evidence. When plaintiff’s evidence showed the duty of defendant to maintain the lamps, his own rightful use of the street, the injury from the falling globe, with no act of his to cause it, and nothing to indicate it was caused by third parties, or vis major, he had produced evidence from which the jury might reasonably conclude there had been a lack of due care on the part of defendant in its duty properly to construct and maintain the lamp and its fixtures. With this evidence in, defendant then undertook to show due care on- its part in the erection, inspection and maintenance of the lamp and fixtures. It was clearly the function of the jury to weigh this evidence, together with all the evidence in the case tending to show defendant’s due care, or its lack of it, and determine whether or not 'the defendant was negligent in the manner in which it constructed and maintained the lamp and fixtures, and if such negligence was the proximate cause of plaintiff’s injury. Hence it was not error for the court to deny defendant’s request for a peremptory instruction in its favor. Defendant complains because the court refused to submit to the jury the three special questions requested. These called for the jury to find specific negligent acts or omissions of defendant. There was no evidence before the jury from which such findings could have been made; that is, there was not specific evidence that the lamp globe had not been properly placed in the socket provided for it, nor that the set screws, designed to hold the globe in place, had not been properly adjusted and tightened, nor that the globe was cracked ,or broken when put in place, nor that the light bulb was not properly placed within the globe. The court is not required, by R. S. 60-2918, to ask the jury to find facts not established by the evidence; none of our decisions so hold. Passing now to defendant’s criticisms of the rulings of the court in refusing to give instructions requested, and to the instructions given. These present the only serious difficulty in the case. It would make this opinion too long, and perhaps no good would come from it, to copy the instructions and to analyze them in detail. We have given them careful study and concluded there is no serious error in them. They correctly state that the burden is upon the plaintiff to prove negligence of defendant, causing plaintiff’s injury, and are evidently drawn, in part at least, from the language used in the opinion in Potter v. Rorabaugh, supra. Some phrases in the instructions, taken alone, are objectionable as throwing too great a burden on defendant, but when considered together with other instructions given and the instructions considered as a whole, we conclude they could not be so misleading as to require the granting of a new trial. 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The opinion of the court was delivered by Dawson, J.: This was an action on a policy of insurance purporting to protect an automobile against theft. The main defense was that plaintiff had no insurable interest in the property. The ostensible facts were these: Plaintiff resided on a farm about four miles north of Burlington, county seat of Coffey county. In the autumn of 1923 he let it be known that he wished to buy a car. Several dealers from nearby towns called on him and exhibited their cars and quoted prices. A stranger also called on him, giving his name as that of W. K. Jones, and pretending to be a salesman and representative of the French Motor Company of Osage City, a town thirty miles from plaintiff's residence. Jones called four times, at first offering to sell a secondhand car, but eventually he sold plaintiff a new Ford sedan for $773, which was $3 less than the price quoted by the Ford dealer in Burlington, and $1 less than the price asked by the Ford dealer in Melvern, a little town a few miles further away. Jones delivered the car at plaintiff’s farm. Plaintiff testified that he paid the entire price in cash, as he had no confidence in banks and had accumulated the money in the course of a year and kept it in his house. He did not take a receipt for the money, nor did he require or obtain from Jones a bill of sale for the car. Jones disappeared and has never since been heard of. Jones had no connection with the French Motor Company of Osage City and the car had never passed through its hands. Plaintiff applied for a license and in due time received it from the secretary of state. He also took out a policy of insurance issued by defendant to protect the car against theft. A month later the car was stolen, and, like Jones, it has never since been heard of. Plaintiff thinks he correctly read the motor number on the car, and on that supposed number, 8259052, the automobile license was issued and the insurance policy executed. It developed, however, that no Ford sedan ever bore such number; those figures were the engine number of a new Ford one-ton truck purchased from a regular Ford dealer in September of the same year by a farmer in North Carolina and still owned by him. In his petition plaintiff admitted that he had never received a bill of sale for the car from Jones. Attached to his petition was a copy of the insurance policy, which, among other matters, provided: “This policy is subject to additional conditions printed on back hereof. “Perils insured against . . . “(c) Theft, robbery or pilferage, . . . “Warranties by the Assured. “The assured’s occupation or business where the subject of this insurance is used in connection therewith, the description of the automobile insured, the facts with respect to the purchase of same, the uses to which it is and will be put, and the place where it is usually kept, as set forth and contained in this policy, are statements of facts known to and warranted by the assured to be true, and this policy is issued by the company relying upon the truth thereof. . . . “Title and ownership. This entire policy shall be void unless otherwise provided by agreement in writing attached hereto,- “(a) If the interest of the assured in the subject of this insurance be other than unconditional and sole ownership . . .” Defendant’s answer denied plaintiff’s ownership of the automobile, raised the point that plaintiff did not have an insurable interest in it, and stressed the clause in the policy touching “Warranties by the Insured,” quoted above, and alleged that plaintiff had breached those warranties by giving defendant an incorrect descrip tion of the car, particularly with reference to the number of the motor. On this joinder of issues the cause came on for trial. Defendant’s objection to the introduction of evidence was overruled. The jury returned a verdict for plaintiff for the full amount of the policy and judgment was entered accordingly. Defendant appeals, assigning various errors which chiefly center about the question whether plaintiff had an insurable interest in this automobile. The statute, R. S. 8-117, makes it unlawful for any person to buy an automobile from anybody except a 2’egular dealer having an established place of business unless the seller is identified by two acquaintances of the buyer and unless he obtains from the seller a bill of sale in writing, reciting a desci’iption of the car, its make, style, year of model, and engine number, and giving the full name and address of the seller, and signed also by the identifying witnesses and giving their addresses. If the automobile which is the subject of the pui’chase and sale is a second-hand car, the buyei’, in addition to the provisions of R. S. 8-117 summarized above, must notify the county sheriff and a police officer of the nearest town of his purchase and give those officials a comprehensive description of the car. (R. S. 8-118.) One cannot read these statutes without coming to the conclusion that their purpose was to minimize the possibility of permanently depriving owners of automobiles of their property by theft. A car is easily stolen. Its speed will carry its taker hundreds of miles away in one round of the clock. And so the legislature very properly has prescribed this statutory mode for the sale, exchange, or barter of automobiles, to curtail the chances of their successful larceny and sale by thieves, and for enlarging the possibilities of recovering and restoring to their owners automobiles which are stolen. The statute also is designed to protect gullible people from buying stolen cars and from ¡irresponsible vendors of whom nothing is known except what they choose to say or pretend about themselves. In Miller v. Insurance Co., 117 Kan. 240, 242, 230 Pac. 1030, in discussing the Missouri statute on this general subject, it was said: “If he had caused a record of the transfer to be made with the secretary of state inside of five days the insurance company would have had opportunity to protect itself against Cohen’s fraud. One purpose of the statute is ob viously to make it difficult for a thief to dispose of a stolen car, but it has other beneficial effects, one of them being to prevent the tricking of a would-be purchaser into paying for a car after his supposed vendor has parted with the title. If, as the evidence tends to show, the insurance company was tricked out of its money by Cohen through a device which was made available to him because of the failure of the plaintiff to take the steps required by the statute in order that his purchase should be valid, the superior equities are clearly with the insurance company; it is within the protection of the statute, and the provision that a sale of a car made without an indorsement and delivery of the registration certificate, and without a record of the change of ownership with the secretary of state, shall be fraudulent, operates in its favor against the plaintiff.” Assuming the truth of plaintiff’s evidence touching his acquisition of this automobile, as we are bound to do since the jury gave it full credence, nevertheless he did take that car from the elusive Jones in total disregard of the statute designed to protect him against being defrauded, and designed to restrict traffic in stolen automobiles and the losses attendant thereon, for the benefit of everybody, including the defendant insurance company. It, too, is entitled to the protection of the statute, since no inconsiderable factor in determining its insurance rates is based upon the percentage of recoveries of stolen automobiles covered by its policies through the efficacy of the statute governing their transfer and sale. By buying this car from a stranger, not a dealer having an established place of business, without knowing his address, without his being identified by available witnesses, without a bill of sale giving an accurate description of the car, plaintiff rendered it virtually impossible for this defendant company to recoup any sum it might pay him for its theft. Without these clues, which the statute required plaintiff to take and preserve when he bought the automobile, the defendant has no chance to recover the stolen property; and the state has little chance to bring Jones to justice for defrauding the plaintiff, or to capture and punish the thief who deprived plaintiff of it. In view of this, can we say that plaintiff had an insurable interest? The sale to him was illegal. Was it also void? The statutes of some states expressly so state. (Rev. Stat. Mo. 1919, ¶ 7561, cited in Motor Co. v. Warren, 113 Kan. 44, 213 Pac. 810.) Our statute does not expressly say so, but so far as concerns parties like defendant who had a right to contract on the assumption that the statute concerning the transfer and vesting of title had been complied with, logic and justice would seem to require a similar conclusion to be deduced from a breach of it. In Insurance Co. v. Todino, 111 Ohio St. 274, 277, where .a husband had given his wife an automobile and had caused the insurance policy protecting the vehicle from theft to be indorsed to her, but had failed to give her a bill of sale as the statute required, it was held she had no insurable interest in the car. That statute did not expressly declare that a sale made in violation of its terms was void. It did provide that “any such bill of sale not verified before delivery shall be null and void.” The opinion is instructive and convincing. In part, the Ohio court says: “The authorities are plentiful that courts always look to the language of a statute, its subject matter, and the wrong or evil it seeks to remedy or prevent, or, in other words, the purpose sought to be accomplished by its enactment, to determine whether a transaction governed by such statute is void if the statutory requirements be not followed, or whether (there being no direct provision making such transaction void) the 'penalty provided by the statute for the failure to observe it is all that is to be exacted. “A distinction has been recognized between statutes designed for the protection of the public and those designed primarily for the raising of revenues. The courts are in accord that where a statute is enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, a contract in violation thereof is void, even though a money penalty also is exacted. “The statute under consideration is not a revenue-raising measure. No fees of any consequence are paid or are payable. It was not designed to prevent the sale of automobiles. Its sole purpose was to prevent, in so far as possible, the stealing of automobiles, which, because of the opportunity to commit the crime and escape detection, unfortunately had become, and is still, so prevalent as to be classifiable as a near industry. The declaration of the general assembly which passed the act is that its purpose was and is to prevent traffic in stolen cars. “In view of the requirement of the statute that a bill of sale shall be verified before it can have force and effect, how can it be successfully argued that no bill at all may have force and effect? Omission of action is not action. Nonperformance is not performance. Failure to do a thing is not the doing of it. The absence of a paper is not the equivalent of a paper. As title cannot pass without a verified bill of sale, and in this transaction no bill of any kind or character was executed by the donor or filed by the donee (plaintiff), how can it be claimed that at the time of the theft plaintiff was the sole and unconditional owner of the car, within the meaning of the policy?” (p. 276.) In Hennessy v. Automobile Owners’ Ins. Ass’n (Tex. Civ. App.), 273 S. W. 1024, plaintiff sought to recover on a policy of insurance on a second-hand automobile which he had sold to one Chisholm, retaining a mortgage on the vehicle to secure notes given by the purchaser in part payment. After this sale, the defendant insurance company issued its policy on the car against fire and theft. The car was stolen and destroyed by fire, and payment on the policy was resisted on the ground that in the acquisition of the car by plaintiff and in its sale to Chisholm there had been a breach and total disregard of a penal statute requiring a sale or trade of a second-hand automobile to be evidenced by an accompanying bill of sale and other regulatory directions. (Penal Code, Texas, 1925, art. 1435.) It was held that neither the vendor nor the vendee had an insurable interest in the car, although following its theft and destruction a bill of sale was procured and recorded in belated compliance with the statute. The same principle was recognized in Pope v. Glens Falls Ins. Co., 136 Ala. 670; and in State ex rel. Insurance Co. v. Cox, 307 Mo. 194, 37 A. L. R. 1456, although in that case the statute itself did expressly denounce as void a sale in violation of its terms. As we have seen, an important rule of public policy is involved in this case. The statute (R. S. 7-118) was enacted to protect the public against fraud, to limit the amount of mischief wrought by automobile thieves, to aid in bringing such thieves to justice and to facilitate the recovery of stolen automobiles; and it must be held that the sale and barter of automobiles in disregard of the statute confers no insurable interest on the vendee. It follows that the judgment must be reversed on the principal matter involved herein. In anticipation of such probable conclusion of this court, the appellee seeks to make something out ’of the minor point that plaintiff had good title to the accessories purchased by plaintiff and attached to the car, and there should be no question of his insurable interest in them. It does not appear that this point was urged below; but aside from that, if plaintiff had complied with the law in acquiring the automobile, the defendant would have stood some chance to recover it, accessories and all, and thus recoup its loss for whatever sum it might have to pay on this policy — whether on the car itself, or merely on the accessories. As the case stands, however, and through the fault of the plaintiff, it has not a chance of recoupment. Granting that plaintiff’s acquisition of this automobile was as thoroughly innocent of guile as his evidence disclosed and the jury believed, his want of sophistication touching the wiles of designing men (other than bankers) and the consequences flowing therefrom must be borne by himself, and cannot justly be transferred to the defendant insurance company. The judgment is reversed and the cause remanded with instructions to enter judgment for defendant.	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The opinion of the court was delivered by Dawson, C. J.: This was an action in ejectment and for the rents of the property involved. Plaintiffs’ petition alleged their ownership and title to a quarter section of Crawford county land, that they were entitled to its possession, and that defendant unlawfully kept them out of possession. A second cause of action was also pleaded in which plaintiffs claimed damages in the sum of $3,200 for being deprived of the use of the property for ten years last past, estimating their loss and damage at $320 per annum. In an answer and second amended cross petition defendant Evan J. Connell denied generally all the allegations of plaintiffs’ petition, and then pleaded matters which might defeat plaintiffs’ action and also entitle him to a decree adjudging him to be the owner of the property in dispute and barring plaintiffs of any interest therein. The matters pleaded in the second amended cross petition must be summarized at some length, viz.: Plaintiffs are the two sisters of defendant, and all three are the children of the late T. B. Connell and the late Sarah I. Connell, who in their lifetime owned and resided on the farm in question. Defendant was born on that farm in 1870 and has resided there all his life. Defendant alleged that about the year 1895 his father and mother made an oral agreement with him— “Whereby he was to become the owner of the above described real estate at the death of his parents in compensation for the care for their physical needs, looking after them and their property and looking after them in their old age, and medicine and medical services, which he had given to his said parents and would give said parents during the remainder of their lifetime that he performed each and every part of said agreement on his part to be done.” The father died in 1902, apparently intestate, and his estate was never probated. In January, 1913, these three litigants, plaintiffs and defendant, executed a deed in favor of their mother, Sarah I. Connell, con veying to her all their interest in the Connell farm under the statute of descents. (G. S. 1935, 22-108, 22-118; Dodge v. Beeler, 12 Kan. 524.) Defendant alleged that the purpose of this conveyance was to enable their mother to carry out the oral agreement between defendant and his parents made some 18 years previously; and that after the death of T. B. Connell, the mother repeatedly affirmed-the oral agreement of 1895 and "always intended that the same should be carried out according to its terms.” On September 28, 1914, the mother, Sarah I. Connell, made her will, and died on August 27, 1929. Her will was duly admitted to-probate omSeptember 14, 1929. Its pertinent terms read: “First. I give and bequeath to my son, Evan J. Connell, the sum of one-hundred dollars ($100.00). “Second. All the rest, residue and remainder of my estate, both real and personal, and wherever located, I give, devise and bequeath to my daughters, Ella Pownall and May Connell, to have and to hold the same obsolutely,. share and share alike. “Third. -I hereby appoint my daughter, Ella Pownall, executrix of this my will without bond.” Defendant’s pleading further alleged that Sarah I. Connell bequeathed to him only the sum of one hundred dollars ($100) because she knew -he was to- receive the real estate in controversy under the oral agreements alleged, and that this fact was well known to the plaintiffs; and that ever since the will of Sarah I. Connell was admitted to probate plaintiffs have so construed this will, and during all that time until shortly before the filing of this action they have considered that defendant was the owner of the-farm by virtue of said agreement. Defendant further alleged that upon the death of Sarah I. Connell he took possession of the property involved, and has openly claimed its ownership ever since, which facts plaintiffs knew since-1929, and that they have permitted defendant, without objection,, to continue to assert his ownership and they are now estopped to-assert their ownership; that he has paid the taxes and the expenses of upkeep and has made lasting improvements on the property, to wit, an addition to the barn in 1915 at a cost of $1,500, another improvement to the barn in 1939 at §, cost of $300, also a cellar,, chicken houses and small sheds constructed by defendant at various times at an aggregate cost of $500. Defendant concluded with the usual prayer—that plaintiffs take nothing, and that he be adjudged the owner and his title quieted, and for equitable relief. _ Plaintiffs filed a demurrer to the second amended cross petition as above summarized, on the ground that it did not state a cause of action in favor of defendant or against the plaintiffs. This demurrer was sustained and defendant appeals, contending that the facts pleaded in his second amended cross petition stated a cause of action for the specific performance of an implied or constructive trust, that plaintiffs acquired title with notice of the trust, and that the statute of limitations has no application until such trust is repudiated. It is not easy to discern any rational theory of the existence of any sort of trust in the facts pleaded by defendant. An oral promise by a father and mother that their son shall have their farm after their deaths in consideration of services performed and to be performed by him is merely a contract for a devise or conveyance of land. The parents do not place themselves into the artificial status of trustees of their farm by their making of such a. contract. But if they may be regarded as trustees, their duties as trustees necessarily were to be consummated not later than the time of the death of the survivor of them. The father died in 1902 without giving any indication that he recognized the alleged contract of 1895 or the status of the farm as a “trust res” in favor of his son. The mother made her will in 1914. In it she not only failed to recognize the alleged contract of 1895, or any status of the farm as a trust in favor of defendant, but deliberately devised the farm in controversy to defendant’s sisters, the plaintiffs herein. Moreover, on the death of the mother fifteen years after she made her will, her estate was probated and no claim was made in the probate court that plaintiff had an oral contract with his mother whereby he was to have the farm at her death. Nor did defendant present in that court any claim that the farm constituted an implied or constructive “trust res” for his benefit under the alleged 34-year-old oral contract with his parents. But to continue our examination of defendant’s theory of a trust, if the farm property could be regarded as a “trust res” and defendant’s mother as the trustee thereof, the fact that she died without taking some step to comply with the contract of 1895 and that her will which was duly probated wholly ignored that contract and made a disposition of the farm wholly at variance with the contract—these facts gave positive notice to defendant that the al leged “trust” had been repudiated. Consequently he was bound to assert his right to the property within the time allowed by the statute, which was three years, under the civil code. (G. S. 1935, 60-306, 2d clause; Burrows v. Johntz, 57 Kan. 778, 48 Pac. 27; Nicholson v. Nicholson, 94 Kan. 153, 157, 146 Pac. 340; Wright v. Jenks, 124 Kan. 604, 610, 261 Pac. 840. See, also, 65 C. J. 1028-1029.) Defendant’s cross petition asserting his right to the property was filed sometime in 1941 — some twelve years after the probate of his mother’s will, at which time, if not sooner, he was made aware of his mother’s breach of trust. Clearly, then, his cross action was barred by the three years’ provision of the statute of limitations. In the above we have tolerantly considered defendant’s theory of the case as a cross action to enforce an implied or constructive trust based on an oral contract, but we do not approve of that theory of the case. Equitable considerations frequently can be invoked for relief in cases of hardship, unjust enrichment and the like, on the theory of a constructive trust, but they cannot-be invoked in the face of pertinent statutes. As said in Beeson v. Lotz, 101 Kan. 399, 166 Pac. 466: “Rules of equity cannot be intruded in matters plainly and fully covered by positive statutes.” In our view the controlling question in this case is.shortly disposed of. The farm in question was devised to plaintiffs by Mrs. Connell’s will, and that will was duly probated. If defendant had any objection to the will he should have challenged it in time and season. If he considered that he had an equitable claim to the farm in conflict with its disposition by the will, he had the privilege of contesting it within the time allowed by the statute—one year, under G. S. 1935, 22-223. In Mayer v. Taylor, 142 Kan. 54, 45 P. 2d 858, the action was to enforce an alleged contract that in 1892 plaintiff’s uncle and aunt, residents of Topeka, had agreed with plaintiff’s mother, resident of Belgium, that if she would send plaintiff, then a minor, to them in Topeka and if he would render to them the dutifuL obedience of a son until he attained his majority, the uncle and aunt would leave him all their property at their deaths. Plaintiff alleged that the obligation of his mother and himself was fully performed. The uncle and aunt- made a joint and mutual will whereby their property was devised to various beneficiaries excluding the plaintiff. That will was never probated as that of the uncle who died first. The aunt made some codicils to it, and after her death it was duly probated on April 22, 1933. On May 11, 1934, plaintiff began his action to enforce the alleged oral contract of 1892—one year and 19 days after the probate of his aunt’s will which ignored the contract. The trial court held that plaintiff’s action was barred by the one year’s provision allowed by the civil code to contest the will. This court affirmed the judgment. In the opinion we said: “Counsel for plaintiff, however, make the contention that this action is not one to contest the will—that such a contest would only be concerned with its formalities, the capacity of the testators, and possible questions of undue influence, with none of which matters plaintiff is concerned. However, the statute which authorizes the contest of a will does not confine the grounds of such contest within such narrow limits. Any cause of action which a pleader can set down on paper which, if established, would necessarily render a will nugatory, is a contest of the will and must be brought within the time allowed by the statute above quoted. All this is stare decisis in this jurisdiction, since it was authoritatively and deliberately so declared in the thoroughly contested case of Rishel v. McPherson County, 122 Kan. 741, 253 Pac. 586; id. 123 Kan. 414, 255 Pac. 979; id. 124 Kan. 31, 257 Pac. 939.” (p. 57.) To the same effect were Kunze v. Kunze, 145 Kan. 72, 64 P. 2d 568; Koch v. Wolf, 146 Kan. 247, 69 P. 2d 1088; Axe v. Wilson, 150 Kan. 795, 96 P. 2d 880. That our oft-repeated rule which controls this case is not limited to Kansas jurisprudence, see Stowe v. Stowe, 140 Mo. 594, 41 S. W. 951, where it was held: “Wills are the creatures of statutes, and the jurisdiction of the probate court for admitting them to probate is exclusive save as to review, and courts of equity have no jurisdiction to set them aside. “Where a will has been obtained by fraud, and the time has passed in which its probate can be tested, the courts will not nullify its effects by declaring the devisees hold the property as trustees for the heirs of the testator. The rights of the heirs depend on the final establishment of the will, and if it is not set aside in the statutory way it determines the title to the estate.” (Syl. n 2,5.) The judgment is affirmed. Hoch, J., not participating.	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The opinion of the court was delivered by Dawson, C. J.: On June 30, 1942, the plaintiffs filed separate applications for alternative writs of mandamus to require the county clerk of Wyandotte county to file their declarations of intention to become candidates for nominations to the elective offices of the city court of Kansas City at the oncoming primaries to be held on August 4,1942, and to require him to accept their tenders of the statutory filing fees therefor. Governor Ratner and the other members of the state board of canvassers were impleaded for whatever possible concern they might have in the proceedings. C. Clyde Myers was permitted to inter-plead as an avowed candidate for nomination for one of the elective city court offices if plaintiffs’ applications for mandamus were granted. Plaintiffs’ separate applications for alternative writs were of the same general tenor. Paraphrasing that of Powers as typical, it was alleged that he was a resident citizen of Kansas City, in Wyandotte county, and affiliated with the Republican party, and that he had tendered to the defendant county clerk his declaration of intention to become a candidate for nomination to the office of judge of the city court of Kansas City township, division No. 2, in Wyandotte county, at the primary election to be held on August 4, 1942, and therewith he also tendered the requisite statutory filing fee. The county clerk is the public official charged with the duty of accepting all proper declarations of candidacies for nominations for county and township offices, and likewise the duty of preparing the primary election ballots with the names of all such candidates printed thereon. But in the matter of Powers’ candidacy and the others of present concern, the county clerk declined to accept the declarations of candidacy and declined to accept the tendered filing fees on the ground that no such city court offices were to be filled at the election this year, 1942. The county clerk’s written statement declining the tenders of candidacy and filing fees read, thus: "The above and foregoing declaration of intent to become a candidate for judge of the city court of Kansas City township, division No. II, Wyandotte county, Kansas, together with the proper filing fee for said office, was offered to me on June 20, 1942, at 11:43 o’clock a. m., and it being my opinion that no vacancy exists in said office to be filled by election at this time I therefore refused to accept said declaration of intent to become a candidate of judge of the city court of Kansas City township, division No. II, Wyandotte county, Kansas, and refused to accept said filing fee. Signed: Howard Thorn, County Clerk.” The statute on which the county clerk based his official action is chapter 170 of the Session Laws of 1929 (G. S. 1935, 20-2105), and provides that the judges of the city court of Kansas City shall hold their offices for a term of four years. Petitioners alleged that this statute is unconstitutional on the ground that the city court of Kansas City is essentially and fundamentally a township court, that Kansas City is itself a township of Wyandotte county, and that the statutory provision fixing the terms of the elective officials of the city court offices of Kansas City at four years violates the constitutional provision which declares: “General elections and township elections shall be held biennially on the Tuesday succeeding the first Monday in November in the years bearing even numbers. All county and township officers shall hold their offices for a term of two years and until their successors are qualified. . . .” (Const., art. 4, sec. 2.) Another constitutional paragraph which bears somewhat on the legal question involved in these proceedings reads: “Two justices of the peace shall be elected in each township, whose term of office shall be two years, and whose powers and duties shall be prescribed by law. The number of justices of the peace may be increased in any township by law.” (Const., art. 3, sec. 9.) The application for the writ includes a cursory rehearsal of the various statutes which have been enacted during the last forty-five years which were designed to give Kansas City an improved system of administering justice in petty courts of first instance over that supplied by the township courts, that is, by justices of the peace. Petitioners allege that the lapse of time and the divers and sundry statutes enacted from time to time since their inception in 1897 (Laws 1897, ch. 107) have not altered the fundamental character of the city court of Kansas City; that it remains to this day a township court, that its officers are township officers and not city officers, that elections thereto are biennial and not quadrennial, and that if the ancestry of the present city court of Kansas City is not traceable to the original statute of 1897 and related legislation as a township court, and is to be regarded as a city court having no relation to its township prototype, then it is founded on special legislation in violation of the constitutional provision which declares: “All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.” (Const., art. 2, sec. 17.) In the county clerk’s answer to the alternative writ, he directed attention to the provisions of the most recent statute (Laws 1929, ch. 170) which declare that the judges, clerks and marshals of the city court of Kansas'City shall be elected for terms of four years beginning with the general election of 1932. He also cites article III, section 1 of the constitution, which vests the judicial power of this state in a supreme court, district courts, probate courts, “and such other courts, inferior to the supreme court, as may be provided by law.” Defendant’s answer further alleged that the present incumbents of the various elective offices of the city court, judges, clerk and marshal, were regularly elected to their respective offices at the general election of 1940, and have been duly inducted into their respective offices and that their terms of office will not expire until after the general election of 1944, at which time their successors will be elected; and consequently there are no vacancies in said offices to be filled at the general election in 1942. Defendant concluded his answer with a motion to dismiss. On their joint application, Lysaught, city judge of the second division of the city court; Callahan, marshal; and Burt, clerk, were permitted to intervene. They filed an answer of the same general tenor as that of the county clerk, and moved to dismiss the proceedings — partly in reliance on two decisions of this court, Chesney v. McClintock, 61 Kan. 94, 58 Pac. 993, and Griffith v. Manning, 67 Kan. 559, 73 Pac. 75. Out of abundance of caution, however, these intervenors alleged that they had made timely tenders of declarations of their candidacies for nominations for the respective offices they now hold, but that such tenders were declined by the county clerk; and they prayed that their rights as such candidates be protected in the event that this court should hold that such offices are to be filled at the regular biennial election in November, 1942. On behalf of the governor and his associates on the state board of canvassers, a motion was filed to dismiss them, as they have no statutory duty to perform in the premises and are neither necessary nor proper parties to the proceedings. This motion was not contested and it is sustained. As these proceedings were filed on June 30, and the primary election was scheduled for August 4, and the ballots had to be prepared by the county clerk and samples thereof mailed to the various candidates “at least two weeks before the primary,” and the party chairmen were privileged to suggest to him whatever changes should be made in the form of the ballots “on or before the eleventh day preceding such primary” (G. S. 1935, 25-211), it is. obvious that expedition in the joinder of issues, and in the hearing and decision, were imperative if this litigation was to be of any service to the parties concerned. And so the court authorized the filing of pleadings and briefs in typewriting, and set the cause for argument on July 8. Following the argument, the court held consultation on the cause the same day and decided that the writs of mandamus applied for should be denied—which in effect sustained the position taken by the county clerk—that the elective officers of the city court of Kansas City should hold their offices for four years, and that their official terms were not governed by the constitutional and statutory provisions relating to biennial elections of township officials. While in the interest of all concerned, announcement of the court’s decision was made at once, the preparation of our opinion has necessarily been deferred until now, owing to the immediate summer adjournment of the court. To an understanding of the legal questions involved in these proceedings, it will be necessary to examine the entire series of legislative enactments under which the city court of Kansas City was created, its structure amended from time to time, and under which it now exists. We shall also have to take note of’ whatever decisions of this court have borne directly or indirectly on this series of enactments, and likewise some constitutional provisions which may affect the general result. The statutes under which the city court of Kansa,s City was created and its structure, jurisdiction and procedure amended from time to time are these: (1) Laws of 1897, chapter 107, and chap ter 264; (2) Laws of 1903, chapter 212; (3) Laws of 1905, chapters 192 and 193; (4) Laws of 1911, chapter 96; (5) Laws of 1915, chapter 196; (6) Laws of 1917, chapter 161; (7) Laws of 1920, Special Session, chapter 34; (8) Laws of 1923, chapter 133; (9) Laws of 1927, chapter 180; (10) Laws of 1929, chapter 170; (11) Laws of 1933, eha'pter 171. But first it should be noted that a township is a territorial and political subdivision of the state and county, organized for the convenient exercise of some of the elementary functions of government. (Rathbone v. Hopper, 57 Kan. 240, 45 Pac. 610; Deerhead Township v. Fritz, 152 Kan. 110, 114, 102 P. 2d 1035; 63 C. J. 99 et seq.; 26 R. C. L. 784 et seq.) Except as modified by the existence of some considerable city within its confines or by its peculiar geographical situation, its territorial extent usually ranges from six miles square in harmony with the original government survey to twice that extent or more. (See official Atlas of Kansas of 1887, pp. 168, 227, 235 and 241.) By a statute of 1868, G. S. 1935, 80-1404, each city of over 2,000 inhabitants (as in the case of Kansas City) constitutes a separate township. The original statute creating the city court of Kansas City was chapter 107 of the Session Laws of 1897. Section 1 of that act reads: “That in Kansas City township, Wyandotte county, Kansas, two new courts be, and are hereby created and established, to be called the city court of Kansas City, first district, and the city court of Kansas [City], second district, respectively; each of which courts shall have one presiding judge whose style of office shall be 'judge of the city court,’ and each of said courts shall have a clerk whose style of office shall be 'clerk of the city court.’ ” Section 2 of the act defines the court’s jurisdiction and procedure to be those of justices of the peace, and deprives the justices of the peace in Kansas City township of all jurisdiction except in civil cases where the amount claimed does not exceed one dollar. Sections 3 and 20 provide that the terms of the judges of the court shall be two years. Section 4 provides that for the purposes of the act, Kansas City township shall be divided into two districts, and that one of the city court judges and one of the city clerks shall be elected from one of such districts, and the other judge and clerk from the other district. Section 6 provides that the salaries of the judges and clerks of the city court shall be paid by the county. Section 9 requires the board of county commissioners to provide suitable rooms in each of the districts for the holding of the city court. Section 20 provides that terms of the court’s elective officials shall be two years and that first election shall be at the same time that city officials are elected— in the spring of the year. At the same session of the legislature, by chapter 264, Kansas City township was divided into two districts corresponding to those defined by chapter 107, for the purpose of electing two constables, one for each district and no more, who were to be paid annual salaries out of the county treasury. In 1903 the act creating the city court was amended so as to require its elective officials to be qualified voters of the district in which their division of the district court was located, but that they should be elected at large by the voters of Kansas City township. In 1905, an act entitled “An act prescribing the jurisdiction of the city courts of Kansas City township,” etc., was enacted. It also made some changes in procedure and practice of no present concern. In 1911 chapter 96 of the Session Laws was enacted, providing for the election of all judges, clerks and marshals of city courts in cities of the first class at the regular elections for state and county officers. (Const., art. 4, sec. 2; Gen. Stat. 1909, sec. 3228; G. S. 1935, 25-101.) This statute contained a preamble in which it was avowed that it was being enacted in deference to the decision of this court in Fee v. Richardson, 82 Kan. 190, 107 Pac. 789, which held that the elective officials of the city court of Kansas City township were not city but township officers, and in consequence women who at that time were not qualified electors and could not vote for them. The court did not find it necessary to refer to the constitutional amendment of 1901, but obviously the statute of 1911 was drafted to conform to its terms. In 1915 section 1 of the statute of 1911 was amended by section 5 of chapter 196, in details of no present concern, and original section 1 was repealed. In 1917 chapter 161 was enacted. Its title was “An act relating to the city courts of Kansas City, Kansas, amending sections 3210 and 3217, General Statutes of 1915, and repealing said original sections.” Section 3210 was the gist of the statute of 1897 which had provided salaries for two constables in Kansas City township and section 3217 was the section of the original statute of 1897 as amended by chapter 212 of the Session Laws of 1903. This statute of 1917 provided a marshal for each division of the city court of Kansas City, fixed their salaries, and abolished the salaried constables in Kansas City township. In 1915 salaries for deputy marshals of city courts in cities of over 90,000 inhabitants were fixed at $75 per month (chapter 107), and in 1919, these salaries were raised to $100 per month (chapter 179). Kansas City was the only city in the state having 90,000 population at those dates. (See statistics of State Board of Agriculture, 1915-1916, p. 592; 1919-1920, p. 537.) In 1920 chapter 34 of the Special Session Laws was enacted. It provided that each division of the city court of Kansas City should have a marshal, and that “one of said marshals- shall be elected every two years from the first and one from the second district of said Kansas City township as bounded and designated by section 4 of chapter 107 of the Laws of 1897.” The salaries of the marshals, and the judges and clerks of the city court were again revised, but still made payable from the county treasury. Sections 3210 and 3217 of the General Statutes were again repealed, likewise chapter 161 of the session laws of 1917. Chapter 133 of the Session Laws of 1923 revised the structure, jurisdiction, procedure and other features of the city court of Kansas City, and specifically amended and repealed almost all the earlier legislation which we have briefly summarized above. Eor present purposes, however, it will suffice to quote the first section of the act: “Section 1. That general sections 3204, 3205, 3206, 3208, 3209, 3210, 3211, 3212, 3213, 3215, 3217, 3221,' 3226, 3230, 3231 and 3232 of the General Statutes of Kansas for 1915, and chapter 161, Laws of Kansas 1917, and chapter 179, Laws of Kansas 1919, and chapter 34, Laws of Kansas, special session 1920, be and the same are hereby amended to read as follows: That in Kansas City township, Wyandotte county, Kansas, three courts be and are hereby created and established, to be called the city court of Kansas City, first district; the city court of Kansas City, second district; the city court of Kansas City, third district, respectively; each of which courts shall have one presiding judge, whose style of office shall be ‘judge of the city court.’ The terms of office of the judges of said courts shall be two years and until their successors are duly elected and qualified, and the first election of such judges, clerk and marshal, respectively, shall be held at the general election in November in the year 1924.” We come now to an examination of chapter 180 of the Session Laws of 1927, which, except in respect to the duration of the official terms of its elective officials, is the statute under which the city court of Kansas City is now organized and by which its jurisdiction and procedure are prescribed. The first section of the act reads: “Section 1. That in all cities of the first class in the state of Kansas now having or hereafter acquiring a population of more than 110,000 shall be a judicial township, and in such township there shall be established a city court, which shall be composed of two divisions, designated as division number one and division number two, and each of said divisions of such court shall have a presiding judge, whose style of office shall be ‘judge of the city court, division number one,’ and ‘judge of the city court, division number two,’ and one clerk, whose style of office shall be ‘clerk of the city court,’ and one marshal, whose style of office shall be ‘marshal of the city court’: Provided, That this act shall not be construed to abolish any of the city courts of Kansas City township, Wyandotte county, Kansas, now existing, or terminate the office of any officer thereof prior to the second day of January, 1929.” By sections 5, 7, and 9, it is provided that at the general election in 1928 and each two years thereafter, the qualified electors of said judicial township shall elect two judges, one clerk and one marshal to serve as officers of such city court. The salaries of these officials are to be paid out of the county treasury and the board of county commissioners are required to provide and furnish suitable rooms in the courthouse for the use of the divisions one and two of the city court, and suitable rooms convenient to the courthouse for the judge of “said third division” until the expiration of his term of office. The act provides that when it takes effect the justices of the peace “of such townships” shall be stripped of all civil and criminal jurisdiction except civil cases where the amount claimed does not exceed one dollar. Jurisdiction is conferred upon the court, civil and criminal, such “as justices of the peace now have in this state, . . . and all the laws of this state relating to the powers, duties and jurisdiction of justices of the peace, and practice, pleadings and proceedings in justice courts, . . . shall apply to said city court ... so far as .. . applicable.” All earlier legislation having any conflicting relation to the city court as constituted by this act was repealed in specific terms, with this qualification in section 26: “Provided, That in any city to which this act applies where city courts are now in existence, said courts as now situated shall continue to function and the officers thereof shall perform the duties of their office as now provided by law until the second Monday in January, 1929.” The next enactment relating to the city court of Kansas City was chapter 170 of the Session Laws of 1929, entitled “An act relating to officers of city courts in cities of the first class of not less than 110,000 population in counties having an assessed valuation of less than $200,000,000, amending sections 5, 7 and 9 of chapter 180 of the Laws of 1927, and repealing said original sections.” Section 1 of the act reads: “That section 5 of chapter 180 of the Laws of Kansas for 1927 be amended to read as follows: Sec. 5. That at the general election in 1932, and each four years thereafter, two judges of such court shall be elected by the qualified electors of said judicial township at large. Each such judge shall at the time of his election be a qualified voter of said township and shall have had five years’ active experience in the practice of the law; and he shall hold his office for a term of four years; and shall receive as full compensation for his services the sum of 83,600 per year, payable monthly, to be paid out of the county treasury of the county in which said judicial township is located: Provided, The judges of said court elected at the 1928 general election shall hold their offices until their successors are elected and qualified under the provisions of this act.” Sections 2 and 3 of the act likewise extend the official terms of clerk and marshal of the court and fix their salaries and salaries for sundry deputies and assistants—of no present consequence. The last of this long series of acts pertinent to the city court of Kansas City appears to have been chapter 172 of the Session Laws of 1933, the title of which indicates its character. It reads: “An act providing for and relating to city courts in cities of the first class having a population of not less than 117,000, and amending section 20-2101 of the Revised Statutes Supplement of 1931, and repealing said section.” The section of the Revised Statutes Supplement to which the title of this act refers is section 1 of the statute of 1927 which we have already examined. This statute is of little present importance except as part of the chronicle of Kansas City court legislation. It changes the requirements of population which may affect the status of the court. The section as amended appears as G. S. 1935, 20-2101. It has taken much space to list these statutes and to make this very summary abridgment of their contents. This done, however, the legal questions presented in this lawsuit become clear. The original special act of 1897 creating the city court of Kansas City township was enacted prior to the adoption of the constitu tional amendment of 1906 (art. 2, sec. 17), which charged this court with the responsibility of determining whether such a statute was repugnant to the constitutional requirement that all laws of a general nature should have uniform operation throughout the state, or whether the existing circumstances to which the legislation was directed would justify the enactment of a special act. In the early case of State of Kansas, ex rel. Johnson, v. Hitchcock, 1 Kan. 178, this court held that the responsibility belonged to the legislature, and not to the court, to determine whether the legislative purpose in a particular situation could be expediently accomplished by a general act or whether a special statute was the most practical way to attain it. (See 10 Kan. Bar Journal, 288-297.) When the original statute creating the city court of Kansas City township was enacted there was no serious contention that the court was anything other than a more elaborate township court, than that of a justice of the peace, and essentially of the same nature. Prior to the constitutional amendment of 1902 (art. 4, sec. 2), the officials of the court could be elected at any time the legislature saw fit to prescribe. Thereafter, however, the election of township officials had to be chosen biennially as in the case of state and county officers. (G. S. 1935, 25-101, 25-1601.) By the statute of 1929, chapter 170, the terms of the elective officials of the city court are fixed at four years, beginning with the election of 1932. (G. S. 1935, 20-2105, 20-2107 and 20-2109.) Plaintiffs contend that this extention of the terms of these officers from two years to four years violated the constitution in two particulars, first, that the city court of Kansas City remains as it has from its inception in 1897 a township court and its elective officials are township officials, and in consequence their official terms must conform to the constitution. On this point, counsel for plaintiffs cite the case of Fee v. Richardson, 82 Kan. 190, 107 Pac. 789, where this court had occasion to say: “The city courts of Kansas City are essentially justice of the peace courts, and the marshals thereof are constables.” Plaintiffs also cite the case of Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042, where it was held that the elective term of a judge of the city court of Wichita city township was two years, and not four years, notwithstanding the legislative declaration to that effect in chapter 170 of the Session Laws of 1929, which is relied on by defendants in this action to withstand the plaintiffs’ applications for mandamus to require the defendant county clerk to accept the decía rations of their candidacies for the elective offices of the city court of Kansas City this year; and that the provisions of the statute of 1929 extending the terms of the elective officers of the Kansas City court have no more constitutional validity as applied to Kansas City than they did as to Wichita. Turning to the brief of counsel.for the county clerk, the first point raised is that the plaintiffs are estopped to invoke mandamus to assert their right to file for the offices to which they aspire because they delayed unreasonably before attempting to file their declarations of candidacy. It is pointed out that the county clerk officially published the statutory notice of the election on April 9, 1942, as required by G. S. 1935, 25-204, and that said notice gave no intimation of any Kansas City court offices to be filled this year. Without placing our decision on this point, it must be admitted that it has some merit since the remedy sought by mandamus does not issue against a public officer as a matter of course. Its invocation against a public officer should be timely, by one who deems himself entitled thereto, so as not to interfere with the orderly routine of the officer’s duties. (Kolster v. Gas Co., 106 Kan. 84, 86, 186 Pac. 738.) In the instant case the applications for the writs of mandamus were not filed in this court until June 30. The time for filing declarations of candidacy expired on June 20. (G. S. 1935, 25-205.) This court was scheduled to adjourn on July 11. Obviously the time to formulate the pertinent issues, brief the case and argue it, and for the court to give it mature and thorough consideration was altogether so short that the court would have been justified in declining to entertain the action. However, owing to the seeming urgency of its speedy determination, the primary election being scheduled for August 4, and the county clerk needing all the time the circumstances would permit to prepare and have printed and distributed the ballots to be used thereat, we did entertain the action and reached a decision- which was announced on July 8, although this opinion in support of that decision has required much more time for its preparation. The next argument urged against the issuance of the writ is that if the statute of 1929 fixing the terms of the city court’s elective officials is unconstitutional, then the court would have no qualified officials to act, since the last biennial election was held in 1928 in accordance with the statute of 1927 (Laws 1927, ch. 180, secs. 5, 7, 9). This seeming impasse is not serious. The officers elected at the last lawful election-—whenever it occurred—hold their offices until their successors are duly elected and qualified. (Const., art. 3, sec. 12.) Moreover, there is no want of lawful authority for the filling of vacant judicial offices. (Const., art. 3, sec. 11; Laws of 1927, ch. 180, sec. 14.) We come now to what appears to be the strongest point counsel for the county clerk urge to sustain the statute of 1929. Summarizing their argument, they contend that as there is nothing in the constitution which prohibits or limits the creation of courts, the legislature had plenary power to enact the statute of 1927 and to amend it as experience should suggest. Although the city of Kansas City is a township of the familiar and prevailing type recognized by the constitution and general statutes, it was within the province of the legislature to create in Kansas City a township of another and special sort, a judicial township, and that it did do so by the statute of 1927, and did endow that distinct type of township with a tribunal fully equipped to transact the judicial business of a court of first instance in that important metropolitan area—and that the legislature did do so irrespective of whatever other courts the constitution and statutes had therefore established for administering the simpler functions of government in Wyandotte township as well as in all the other townships of this state. The first time the act creating the city court in Kansas City township came before this court for consideration was in the case of In re Greer, 58 Kan. 268, 48 Pac. 950, where the statute was upheld against the objections then raised against it. This decision was followed in Chesney v. McClintock, 61 Kan. 94, 58 Pac. 993, where the validity of the special act of 1899, chapter 129, creating the court of Topeka was questioned. It was there held that the act was not void because the tenure of office of the elective officers of the court was for a longer term than that then specified in the constitution for township officers. This court said: “The law in question did not create a township office. It created a tribunal designated ‘The court of Topeka.’ This the legislature had authority to do, under section 1, article 3, of the constitution. It provided by law for a court inferior to the supreme court. Whatever name might have been given to it, it is a judicial tribunal, created within the limits of the city of Topeka, which it was within the discretion of the legislature to establish.” (p. 99.) In the same opinion the court referred to its decision in the case of In re Greer, supra, which it was urged to reconsider, but it held that this court was so entangled in its many earlier decisions in which it had declined to determine whether a general act could be made applicable to the creation of city courts that it felt'bound to reiterate that it was the legislature’s prerogative to determine when it was impracticable to deal with a matter by a general act and when a special statute was necessary to attain the- legislative purpose. In the opinion, the language of Mr. Justice Johnston, later chief justice, was quoted thus: '“The old question so often raised is again presented: Was it competent for the legislature to determine whether a general law could be made applicable, and whether a special law was necessary? If the question were a new one, the writer of this opinion would be inclined to the view that the courts should determine in each case whether this constitutional restriction had been violated or not; but the question has been put at rest by a long series of decisions holding that the decision of the question is exclusively for the legislature, and not for the courts.’ ” (p. 100.) We do not overlook the fact that the Greer and Chesney-Mc-Glintock cases were decided before the adoption of the constitutional amendment of 1902 providing for the biennial elections. In Griffith v. Manning, 67 Kan. 559, 73 Pac. 75, following the adoption of the constitutional amendment of 1902 (art. 4, sec. 2) providing for biennial election of county and township officers, the elective term of a judge of the city court of Kansas City was drawn in question. This court reiterated its pronouncement in Chesney v. McClintock, supra, that the office of judge of the city court of Topeka was not a township office, saying that “the law creating the city court of Topeka ... is identical with the act creating the city courts of Kansas City, so far as this point is concerned.” In the later case of Fee v. Richardson, supra, where this court said, “The city courts of Kansas City are essentially justice of the peace courts, and the marshals thereof are constables,” the court gave no intimation that it was overruling the earlier cases cited above which had held that the elective city court officers were not township officers. And so at this late date it appears wise to 'a majority of this court not to disturb the present practice of nominating and electing the officials of the Kansas City court for four-year terms, since this would specifically require the overruling of the cases cited above which have declared that they are not township officers whose terms are for two years and to be chosen at the biennial elections in November as provided in article 4, section 2 of the constitution. In our recent case of Clark v. Murray, supra, where the duration of the term of a judge of the city court of Wichita city township was in question and where it was held that the elective term of such judge was two years, and should be filled at the regular biennial election in November, this court in a careful opinion by Mr. Justice Thiele took note of substantial differences between the city court act of Wichita and the city court acts of Kansas City. The writ of mandamus is denied and judgment is entered for defendant.	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The opinion of. the court was delivered by Hoch, J.: Appellant was convicted, on two counts, of stealing chickens in the nighttime, and sentenced on each count to the state reformatory, to serve as provided by law for grand larceny, the two terms to run concurrently. Motion for new trial was made and overruled. The only question presented here is whether the trial court erred, to the prejudice of the defendant, in the admission of certain evidence. The information charged that Nelson Appleby (appellant) and Elmo Banning stole twenty-three chickens from Walter Leniton on the night of April 8, 1941, and twenty-six chickens from Joe Hole-man on the night of the-day of April, 1941. All parties involved lived in Chautauqua county. Trial was held in April, 1942. Defendant Banning was the principal witness for the state, and he recited at length and in detail the circumstances connected with the theft of the chickens, which he said was committed by him and Appleby together. He testified that they took chickens from both the Leniton and Holeman places on the night of April 8, and that they returned and again took chickens from Holemanis on the night of April 9. He testified that he was eighteen years old at the time of the trial, and Appleby testified he was twenty-two. As a witness for the state, Charlie Coe, undersheriff of Chautauqua county, testified concerning investigation which he made following the theft, and of conversation which he had with Appleby.He testified that Appleby admitted selling chickens to Mrs. Bra-shear at Cloverdale on the morning of April 9, but said that they came from his home—that his mother left them to him when she died. Mrs. Brashear testified that she bought chickens from Appleby early on the morning of April 9, and that the chickens were in sacks, and he told her his mother had put them in the sacks; that Banning was with him. Holeman testified that he was with Coe when the conversation with Appleby took place; that Appleby lived on a farm with his father and grandfather and that Appleby stated to them that he sold chickens at Cloverdale, that they came from his home, that he had a right to sell them and that when his mother died she left him the chickens. The appellant testified that he lived with his father and grandfather on the farm; that his mother had died five years before; that he sold chickens at various places during April of 1941; that he thought the first time he sold chickens was on April 3, 1941; that he sold chickens to Brashears; that the chickens he sold were either his own or his father’s or grandfather’s and sold with his father’s permission; that he had seventy-five or a hundred chickens on April 1, 1941, but didn’t know how many he had on April 1, 1940; that usually he and his father and grandfather had probably seventy-five to one hundred chickens on the place. As to the chickens sold at Cloverdale on April 9, and at Independence on April 10—con-cerning which sales the state had introduced testimony—he testified that they were not his. Briefly, his testimony was that on the morning of April 9, while driving home from Cedarvale, he came upon Elmo Banning, whose car was standing by the roadside with a flat tiré; that Banning had in his car several sacks of chickens which he said he was taking to market and asked him if he would haul them in as he had no spare tire; that he and Banning loaded the chickens into his car and took them to Cloverdale, where Banning sold them to Mrs. Brashear; that he had no knowledge that the chickens had been stolen, and that Banning paid him about a dollar and a half for hauling them in. As to the conversation with Mrs. Brashear and just what took place then, his testimony differed very materially from the testimony given by Banning and by Mrs. Brashear. As to the chickens which the state contended were sold on April 10, he said that he met Banning and his brother, Lyle Banning, in Cedarvale that day and at their invitation went with them to Neodesha to look for a job, and then on to Independence, and that he did not know until they were some place between Sedan and Independence that they had some chickens in the back of the car. He testified that he had nothing to do with selling the chickens at Independence. As part of his defense appellant entered a plea of alibi. He said that he spent the week beginning April 7, 1941, at the home of Frank Blenden, in Cedarvale, that he slept there the nights of April 8 and 9, as well as other nights in the week, and took most of his meals there. Several members of the Blenden family and one or two others testified in support of the alibi and told with considerable particularity what took place on different days during the week in question. In order to fix the dates, there was testimony that it was the week when appellant was helping to overhaul an old car at the Blenden place and that it was the same time when there was a carnival in Arkansas City. As a part of this recital, Frank Blenden testified that he and his son Leslie went to Sedan on April 9, to get repair parts, consisting of rings, back main bearings and gaskets, for his car that was being overhauled. , His testimony was that all the parts wére bought at Sedan, but was not clear as to what parts were bought at different stores there. The son Leslie testified that they bought the rings at the Dewey Auto Store, Sedan, the gaskets at the Western'Auto Supply, Sedan, and the bearing caps at Cedar-vale. In rebuttal, the state called Bob Hays, the operator of 'the Western Auto Store at Sedan, and asked him about the sale of auto parts during the week of April 7,1941. He testified that his records showed no sale of a rear main bearing for a model A Ford during that week. When asked whether the records showed a sale of gaskets, he replied that he hadn’t checked as to that, but would do so if he were told the exact type of gasket involved. Appellant first predicates error on the admission of the Hays testimony, supra, although counsel frankly stated in the oral argument that he would not consider such error enough, standing alone, to call for reversal. We think this alleged error calls for very little discussion. The state had a right, if it could do so by proper means, to break down appellant’s alibi. Apparently the purpose in offering the Hays testimony was to discredit appellant’s evidence fixing the dates when the car was being overhauled. Upon analysis the Hays testimony does not appear either to prove or disprove the testimony as to the purchase of auto parts, and even assuming it should have been excluded, its admission was not prejudicial. We come to the one contention upon which appellant principally relies. The county clerk, put on the stand by the state, in rebuttal, was permitted over objection to testify concerning the property tax returns of the defendant’s father and grandfather with whom he lived. ■ These statements, taken by the assessor on April 1, 1941, covered property as of March 1,1941. The witness testified that the blanks upon which the returns were made contained, among many items, an item “poultry” and that neither the father’s nor the grandfather’s sworn return showed any entry after that item. The apparent purpose was to show that there was no poultry on the place where defendant lived, and thus to discredit his testimony that he had sold chickens from there in April. We agree with appellant that the testimony should not have been admitted. Both the father and grandfather were in the,courtroom during the trial and could have been called. The tax returns were not those of the defendant, he was not responsible for them, and he had no opportunity of cross-examination. Furthermore, they were not the best evidence on the question of whether there were chickens on the Appleby place in April. They would have been the best evidence on a question of whether the father and grandfather had returned any chickens for taxation in 1941, but that was not the issue. On the other hand, it may be noted that- appellant also had the opportunity, which he did not choose to take, of calling the father and grandfather to testify as to whether there were chickens there. Conceding that admission of the testimony was error, it does not follow that the judgment must be reversed and a new trial ordered. In the first place, we are directed by the statute (G. S. 1935, 62-1718) to disregard technical errors or defects not prejudicial to the substantial rights of the parties. In compliance with that rule, many judgments have been affirmed in spite of technical errors. (Taylor v. Clendening, 4 Kan. 524; Germond v. Littleton, 22 Kan. 730; Land Co. v. Thompson, 57 Kan. 792, 48 Pac. 34; Cook v. Railway & Bridge Co., 101 Kan. 103, 165 Pac. 803; Turner v. Close, 125 Kan. 485, 264 Pac. 1047; Taggart v. Taylor, 128 Kan. 330, 278 Pac. 21; State v. Carter, 148 Kan. 472, 473, 83 P. 2d 689; State v. Linville, 150 Kan. 617, 621, 95 P. 2d 332, and many others.) In the second place, the error must be appraised in the light of the whole record, to determine whether substantial rights have been prejudiced. (5 C. J. S. 805-810; State v. Patterson, 112 Kan. 165, 170, 210 Pac. 654; Clark v. Insurance Co., 105 Kan. 728, 185 Pac. 1056; Union Public Service Co. v. Public Service Comm., 135 Kan. 123, 9 P. 2d 976; State v. Jones, 137 Kan. 273, 279, 280, 20 P. 2d 514; State v. Badgley, 140 Kan. 349, 353, 37 P. 2d 517.) The trial of this case consumed two days. The abstract submitted being brief, we sent for the transcript and have carefully examined the entire record. That examination convinces us that the defendant was not prejudiced by the admission of the testimony in question. It is unnecessary to review the evidence in detail. Suffice it to say that in addition to the story, told with minute details by Banning, who testified that he and the defendant stole the chickens, there was circumstantial evidence in support of his testimony, there was damaging testimony given by Mrs. Brashear as to conversation had concerning the theft in the presence of defendant and his father; by Leniton as to conversation had with Banning very soon after the theft; by Coe, undersheriff, as to conversation with defendant’s father in defendant’s presence and other testimony, by the state, not necessary to relate. While objection was made to some of this testimony, its admission is not assigned as error. The testimony complained of appears inconsequential when viewed in the light of all the evidence before the jury which weighed it and passed upon the credibility of the witnesses. This view is fortified by close examination of the testimony given by the county clerk. If it be said that the returns, made not by the defendant but by his father and grandfather, then sitting in the courtroom, tended to create in the minds of the jurors—doubtless familiar with tax returns—a belief that there were no chickens on the Appleby place and thus discredit the defendant’s story, any such impression must have been much weakened by testimony elicited on cross-examination of the county clerk. He answered “Yes” when asked: “It is a very common occurrence for them not to show poultry when they had it?” It follows from what has been said that the judgment must be affirmed. It is so ordered.	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The opinion of the court was delivered by Thiele, J.: This was an action to partition real estate. The property involved includes five tracts which originally stood in the name of Marley M. McBroom and four tracts which stood in the names of Marley M. McBroom and Melley J. McBroom, his wife. For present purposes it may be said that the petition alleged the status of the various parties, and that plaintiffs and the defendant Clarence McBroom were children of Marley M. McBroom, who died on November 11, 1927, leaving a will which was offered for probate upon the petition of the widow, Melley J. McBroom, and duly admitted to probate on March 16, 1928. A copy» of the will was attached to the petition as an exhibit. Under its terms the testator without particularly describing any property gave his wife Melley J. McBroom one-half of all his real and personal property, to use, sell or dispose of as she might desire during her lifetime and at her death what was left wás to be divided equally among his children, Clarence, Eugene and Florence, who were given the other one-half of his property. The petition further alleged that although the mother, Melley J. McBroom, had failed to make a formal election to take under the will she did in fact accept and take under his will; that immediately following her husband’s death she went into possession of the property devised to her, collected the rents, paid the taxes and operated and managed the property for thirteen years from the death of her husband up to the time of her death on December 19, 1940; that she accepted under the will of her husband by her acts, and she and her representatives were estopped to deny her election to take under the will. We need not set out the shares of each party in the various tracts. The petition further alleged that Tressa H. Fish, guardian of Marlene McBroom, a minor, Marlene McBroom individually, and Tressa H. Fish, executrix of the last will of Melley J. McBroom, claimed some right adverse to plaintiffs, but it was subservient to their rights. They prayed for partition and that their title be quieted. So far as need be noted, the answer of the guardian contained a general denial and then alleged the death of Melley J. McBroom on December 19, 1940, and that her will was duly admitted to probate on January 25, 1941, the will being attached as an exhibit. Under this will, Melley J. McBroom, without specifying any particular piece of property, gave all of her property to Tressa H. Fish as trustee for “my adopted daughter Marlene May McBroom.” We pass by the details of the trust. The will provided it should continue in force until Marlene should arrive at the age of twenty-one years and the property then on hand should be divided equally among her four children, Clarence, Eugene, Florence and Marlene, but if Marlene should die prior to becoming twenty-one years of age, the trust should cease and the property divided among the children surviving Marlene. The will also appointed Tressa H. Fish as testamentary guardian of the person and estate of Marlene, and as executrix of the will. The answer alleged the interest of the trustee in the property and prayed for judgment accordingly. The answer of the executrix adopted the answer of the guardian. Some amendments to the answers and replies of plaintiffs need not be detailed. The defendant Clarence McBroom filed no answer and was in default. At the trial plaintiffs introduced their evidence, to which the defendants, except Clarence McBroom, demurred. The trial court overruled the demurrer, the defendants elected to stand on their demurrer, and judgment was rendered in favor of plaintiffs, and defendants appeal. Their abstract contains no specification of errors, as required by our Rule No. 5, but in their brief they state the question involved is whether the evidence was sufficient to establish that Melley J. McBroom, never having filed a written election in the probate court, did accept in pais under the will of her deceased husband. Before discussing the evidence generally it may be stated as a preliminary that after Melley J. McBroom on December 14, 1927, filed her petition a hearing was had, and the will of Marley M. McBroom was admitted to probate. Nothing further was ever done in the probate court. She never filed any election to take under the law or the will, nor was she ever cited to make.an election. A reference to the above dates will show that at that time R. S. 22-245, 22-246 and 22-247 were in effect. There is some contention that under those sections the law made an election for her and that was an election to take under the law of descents and distributions and not under the will. That contention as made cannot be sustained, for it has been held in numerous cases, some of which are later mentioned, that an election can be made by acts in pais. Although stated in various ways, the rule seems to be that if the acts done are plain and unequivocal, and done with full knowledge of the legal rights of a surviving spouse and of the condition of the ¿state, the election is as binding as though made in strict accord with the statute. See among other cases: Sill v. Sill, 31 Kan. 248, 1 Pac. 556; James v. Dunstan, 38 Kan. 289, 16 Pac. 459; Reville v. Dubach, 60 Kan. 572, 57 Pac. 522; Cook v. Lawson, 63 Kan. 854, 66 Pac. 1028; Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608; Larned v. Larned, 98 Kan. 328, 158 Pac. 3; Ross v. Ross, 111 Kan. 533, 207 Pac. 786. It is not necessary that the evidence of particular witnesses be detailed. The evidence did disclose that before Marley M. McBroom made his will he talked with his wife as to the disposition he intended to make of his property, and the will was made; that after his death his wife offered it for probate and it was admitted, nothing further being done in the probate court; that Melley J. McBroom on occasions in talking with her neighbors and friends, stated how the property was to go under the will and that she was perfectly satisfied with the will; that she was doing as her husband wished and at her death the property would go to the children. The evidence further showed that she looked after the property, collected the' rents, etc. The above course of conduct persisted from the time of the husband’s death until the death of the widow, or a period of about thirteen years. Appellants recognize our oft-repeated rule that as against a demurrer the evidence is to be taken as true, and that the evidence and all the inferences to be derived therefrom are to be considered in the light most favorable to the party adducing the evidence. As we understand their contention, however, it is that although that evidence indicated that Melley J. MeBroom was aware of the terms of the will and the provisions for her and expressed satisfaction therewith, there was no evidence that she was aware of or had been advised as to her legal rights in the premises and of her right to have elected to take under the law and not the will; that a stronger showing must be made in order to sustain the burden of establishing an election, such as was claimed here, than in an ordinary suit at law, and that the proof was deficient and the demurrer should have been sustained. In making their contentions that there was no evidence that Melley J. MeBroom acted with knowledge of her legal rights, appellants recognize that in Cook v. Lawson, 63 Kan. 854, 66 Pac. 1028, upon which the trial court evidently relied in part, this court held: “Express proof of a widow’s knowledge of her rights under the statute is not always necessary, as knowledge on her part may be inferred from her acts and declarations, and from the long failure to dissent from the provisions of the will.” (Syl. 112.) We are not convinced the above ruling is not sound for the reasons asserted—that it was a per curiam opinion, and reliance was placed only on Reville v. Dubach, 60 Kan. 572, 57 Pac. 522, which dealt with evidence which should have been received on the question whether an election had been made. It may be remarked that Cook v. Lawson, supra, has never been overruled or even criticized, and has been cited in an approving way in four later decisions. (Pirtle v. Pirtle, 84 Kan. 782, 115 Pac. 543; Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608; Ross v. Ross, 111 Kan. 533, 207 Pac. 786; Carlyle v. Pee, 125 Kan. 727, 265 Pac. 1113.) It has been noted that Melley J. MeBroom, over a period of about thirteen years, pursued a course of conduct indicating a full acceptance of the terms of her husband’s will. In Ross v. Ross, supra, where for a period of. about seven years, the Surviving husband’s conduct indicated acceptance under his wife’s will and thereafter he attempted to claim under the law, Cook v. Lawson was quoted approvingly on the point here in issue, and in holding that the husband by his conduct had elected to take under the will, the court said (l. c. 539): “But, to use plain terms, with full knowledge the plaintiff for many years acted as if he had chosen to take what the will gave him and his actions in this respect were so significant and so continued that to hold he had not elected would be to convict him of remarkable inconsistency.” And so here, Melley J. McBroom knew the disposition to be made by the will of her husband before the will was executed, she offered the will for probate, she never attempted to make an election in the probate court to take under the will, she repeatedly expressed satisfaction with the will, and,her course of conduct was not only consistent with acceptance of its terms, but inconsistent with a claim she took under the law. Only after thirteen' years after her husband’s death and only after her death, does any person contend she had not made an intelligent election. Paraphrasing what is said in Cook v. Lawson, supra, it may be said the evidence in the case at bar was such that knowledge of her rights was inferable from her acts and statements of satisfaction and that it is fair to infer that during the long period between the death of her husband and her death she learned what her rights were under the law. It does not appear that the will of Melley J. McBroom was offered in evidence. The making of it, however, would not indicate any intention to change her position concerning her husband’s will. In her will she described no specific property, and 'the will was perfectly proper to dispose of her own property, and concededly she had an undivided interest in some of the tracts presently involved. There is also a suggestion that as the Marley M. McBroom estate was not closed by July 1, 1939, the provisions of the new probate code, which then became effective, are applicable (G. S. 1941 Supp. 59-2602) and that because Melley J. McBroom did not file an election as required by G. S. 1941 Supp. 59-2233, she renounced the will. It is sufficient here to say that her election to take under her husband’s will was evidenced by her acts and statements done or said prior to July 1, 1939. The record discloses only one incident after that date, and that her election had been made prior thereto. The ruling of the trial court on the demurrer was correct and it is affirmed. Hoch, J., not participating.	[ 112, 108, -35, 60, 10, 96, 10, -104, 115, 97, -92, 87, -21, -34, 16, 109, 115, 125, -32, 105, -25, -78, 22, -125, -45, -13, -45, -43, -79, -51, -10, 127, 76, 32, -126, -43, -30, -86, -27, 22, -114, -111, 9, -91, -55, 66, 52, 107, 84, 15, 85, -114, -77, 41, 29, 106, 76, 46, -5, -68, 80, -72, -113, 20, -39, 3, -111, 38, -40, -95, -8, 74, -40, 52, -128, -32, 87, -74, -106, 52, 74, -103, 40, 38, 103, 16, -59, -19, -8, -104, 7, 122, -123, -90, -9, 88, 2, -32, -68, 29, 113, 80, 11, 116, -26, -107, 28, -84, 8, -81, -106, -111, 9, -4, -116, 3, -53, 7, 48, 113, -51, -94, 93, 71, 63, -109, -97, -104 ]
The opinion of the court was delivered by Harvey, J.: Appellants in each of these cases were charged with violating the truancy law of our state (G. S. 1935, 72-4801, 72-4802), were found guilty, and have appealed. The cases were tried separately in the courts below, first in the juvenile court and on appeal in the district court, but have been consolidated here, for the legal questions presented are the same in each case. The pertinent portion of G. S. 1935, 72-4801, reads: “That every parent, . . . having control over or charge of any child who has reached the age of seven years and is under the age of sixteen years, shall require such child to attend continuously a public school or a private, denominational or parochial school taught by a competent instructor, . . . each school year, for such period as the public school of the district in which the child resides is in session: . . .” Section 72-4802 provides the procedure for the enforcement of the act by the county superintendent and truant officers appointed by him through proceedings in juvenile court, provides penalties for those found guilty of violating the act, and makes it the duty of the county attorney to investigate complaints filed and to prosecute any action brought under the act. In 1907 our legislature passed an act (Laws 1907, ch. 319) entitled “An act to provide for the display of the United States flag on the schoolhouses of the state, in connection with the public schools, and to encourage patriotic exercises in such schools.” Section 1 of the act made it the duty of the school authorities of every public school to purchase a suitable United States flag, flag staff, and other necessary appliances, and to display the flag upon, near, or in the school building during school hours, and at such other times as the authorities might direct. This section was amended in 1919 (Laws 1919, ch. 274, § 2) so as to apply to public, private and parochial schools, and is now G. S. 1935, 72-5305, and a section was added making it the duty of the county superintendent to notify the school authorities of the provisions of the statute and making it a misdemeanor, punishable by a fine, for such authorities not to comply with the statute within thirty days after such notice. (G. S. 1935, 72-5307, repealed by Laws 1939, ch. 309, new act; see G. S. 1941 Supp. 73-710.) Section 2 of the act authorized the school authorities to establish rules and regulations for the custody, care and display of the flag, and when the weather would not permit it to be otherwise displayed, to have it placed conspicuously in the principal room of the schoolhouse. This section was rewritten by the 1919 act and is now G. S. 1935, 72-5306. Section 3 of the act, now G. S. 1935, 72-5308, reads as follows: “It shall be the duty of the state superintendent of public instruction of this state to prepare for the use of the public schools of the state a program providing for a salute to the flag at the opening of each day of school, and such other patriotic exercises as may be deemed by him to be expedient, under such regulations and instructions as may best meet the varied requirements of the different grades in such schools. It shall also be his duty to make special provision for the observance in such public schools of Lincoln’s birthday, Washington’s birthday, Memorial day (May 30), and Flag day (June 14), and such other legal holidays of; like character as may be hereafter designated by law.” The “Manual of Patriotic Instruction,” (1935) prepared by the state superintendent of public instruction and now in general use, contains 287 pages. Several pages are devoted to the flag, how to display it, and the flag code. Attention is called to the decision of the United States supreme court in Halter v. Nebraska, 205 U. S. 34, 27 S. Ct. 420, upholding a Nebraska statute identical with our G. S. 1935, 21-1301, providing penalties for the unlawful acts respecting the United States flag, and recommendations were made for subsequent legislation. The manual contains much patriotic instruction of a general character and for many special days and occasions. On page 17 it is said: “Salute When Giving the Pledge “In pledging allegiance to the flag of the United States of America, the approved practice in schools, which is suitable also for civilian adults, is as follows: “Standing with the right hand over the heart, all repeat together the following pledge; “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands: One Nation, indivisible, with liberty and justice for all. “At the words ‘to the flag,’ the right hand is extended, palm upward, toward the .flag 'and this position is held until the end, when the hand, after the words ‘justice for all,’ drops to the side.” Appellants in these cases are religious people, students of the Bible and members of the sect commonly known as Jehovah’s Witnesses. In the tenets of their faith reliance is especially placed in the following verses'from the 20th chapter of Exodus: “3 Thou shalt have no other gods before me. “4 Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is. in the water under the earth: “5 Thou shalt not bow down thyself to them, nor serve them: . . According to their belief the flag is a graven image; to worship it is a violation of the command of God and would condemn them. They have brought their children up in their faith. We need not enlarge upon their beliefs, for it is conceded in the briefs of appellee that appellants and their children are sincere in their religious beliefs. Mr. and Mrs. Smith, appellants in No. 35,546, live in the Lawton school district in Cherokee county. They have two children of school age, Barbara, nine, and Artye Lee, eight, who had attended the Lawton school four and three years respectively. A witness for the state, who had known Mr. Smith all his life and his wife for perhaps ten years, testified: “Mr. and Mrs. Smith are considered as industrious, home-loving, law-abiding citizens, by all their neighbors.” Similar testimony was given by other witnesses. They were anxious for their children to attend school. Their children are intelligent, well-behaved, good students, and wanted to go to school. At the beginning of the term of school September 1, 1941, the members of the school board went to the school and told the teacher to exclude any children from the Lawton school who failed to salute the flag. “We authorized the teacher to exclude the children until they did salute the flag.” In previous years,patriotic exercises had been conducted at the Lawton school, but It does not appear that at any time previously any penalty was imposed upon any child who did not salute the flag. The first week of school patriotic exercises, including a salute to the flag, were conducted, but the Smith children did not salute the flag. Apparently the school board and the county superintendent were advised of that fact and the teachers instructed to carry, out the directions of the board given at the beginning of the school term. On Monday morning of the second week Miss Turrill, principal of the school, to avoid humiliating the children in the presence of other pupils by expelling them,, went to the Smith home shortly before school time. Mrs. Smith was preparing the children for school. Miss Turrill showed her a letter which she had received from the county superintendent, which in part stated: “The United States supreme court in an opinion filed on June 3, 1940, held that it is within the power of a school district board to exact participation in the flag salute ceremony as a condition of children’s attendance at school.” The letter referred to and quoted from a letter of the attorney general in which a procedure respecting the matter was suggested (which procedure was not followed) and continued: “The following facts are apparent: 1. The salute is required by law daily. 2. School boards are authorized to discipline pupils who refuse to give it. 3. Parents are- subject to prosecution if refusal is persistent. 4. The Patriotic Manual contains full directions for giving the salute.” Mrs. Smith read the letter and understood it. Miss Turrill gave her to understand that if the children came to school and did not salute the flag they would be sent home. The children did not go to school that day. Conferences were had with the parents and the school board without result. The Smiths employed a well-educated man, who lived at Carthage, Mo., and who held a life certificate from another state, to teach their children privately. This proved to be unsatisfactory to the school authorities because he did not possess a teacher’s certificate issued in this state. They then sent their children to school at Columbus, the county seat, but in a few days the school board met and passed a resolution that children must salute the flag if they attended school, and they were sent home. Later the parents got them in school at Parsons, Kan.-, where they were permitted to attend, and paid their board and tuition there. In the meantime the truant officer filed a complaint against the parents under the compulsory education law. A trial was had in the juvenile court, where they were found guilty. They appealed to the district court, where a trial was had, and they were again found guilty. They raised the question by appropriate motions that our compulsory education statute, as applied to this case, was in violation of the first and fourteenth amendments of the federal constitution and of section 7 of our bill of rights. Mr. and Mrs. Griggsby, appellants in No. 35,547, resided in the Charter Oak school district of Cherokee county. Their children were expelled from school for the sole reason that they failed to salute the flag. The evidence disclosed that the Griggsbys are good, law-abiding citizens. They testified they respect the flag and taught their children to respect it, but because of their religious views the saluting of the flag would be a sin. Their children were well behaved. The proceedings in their case differ only in details from those in' the Smith case. Counsel for the state cite and rely upon Minersville District v. Gobitis, 310 U. S. 586, 60 S. Ct. 1010, 84 L. Ed. 1575, 127 A. L. R. 1493. Obviously, this is the case referred to in the letter of the county superintendent which Miss Turrill gave Mrs. Smith to read. We note, without comment as to its effect, that in the later case of Jones v. City of Opelika, 316 U. S. 584, 62 S. Ct. 1231, 1251, 86 L. Ed. 1174, 1195, which involved a similar question, three of the justices who had concurred in the opinion of the court in the Gobitis case, in a separate opinion stated: “Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly-decided.” (p. 623.) Aside from that, we think the case is not in point. In the Gobitis case a citizen of Pennsylvania, a member of the religious sect known as Jehovah's Witnesses, whose children had been expelled from a school because they did not salute the flag, brought an action in the federal court to enjoin the authorities from continuing to exact participation in the flag salute ceremony as a condition of his children attending the school, contending the requirement was in violation of the first amendment and the first section of the fourteenth amendment to the federal constitution. The case reached the supreme court, where the question involved was viewed as though the legislature of Pennsylvania had itself formally directed the flag salute for the children of the school district. The court, regarding the first amendment as being included in the fourteenth, section 1, said: “We must decide whether the requirement of participation in such a ceremony, exacted from a child who refuses upon sincere religious grounds, infringes without due process of law the liberty guaranteed by the fourteenth amendment.” (p. 692.) . The court took note of the fact “that the Congress has not entered the field of legislation here under consideration.” The pertinent syllabi, as published in the official publication, 310 U. S. 586, read: “So far as the federal constitution is concerned, it is within the province of the legislatures and school authorities of the several states to adopt appropriate means to evoke and foster a sentiment of national -unity among the children in the public schools. “This court cannot exercise censorship over the conviction of legislatures that a particular program or exercise will best promote in the minds of children who attend the common schools an attachment to the institutions of their country, nor overrule the local judgment against granting exemptions from observance of such a program.” It will be observed the supreme court treated the regulation in question as being valid under the constitution and statutes of the state of Pennsylvania, and being so, held it was not invalid under the constitution of the United States. The federal constitutional provisions considered were the first amendment and the first section of the fourteenth amendment. So far as here pertinent these read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . ” (First amendment.) “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Fourteenth amendment, § 1.) For many years, even after the adoption of the fourteenth amendment (July 28,1868) it was held by the supreme court of the United States that the first eight amendments of the constitution, dealing with personal rights, applied only to congress and departments of the federal government, but in more recent years the holdings have been that they are absorbed in section 1 of the fourteenth amendment, and hence are applicable to state laws and their enforcement as well as to the federal statutes and procedure. (See 12 C. J. 941; 16 C. J. S. 600.) We think the real problem befor'e us is whether regulations of the school boards in question are valid under the constitution and laws of our state. When our constitution became effective, January 29, 1861, there was no federal constitutional provision applicable to the new state respecting freedom of religious beliefs; hence, the framers of our constitution wrote into our bill of rights (section 7) the following: “The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on account of religious belief.” It will be observed that the wording of this section of our bill of rights is much more in detail respecting'religious freedom than is the first amendment to the federal constitution. Respecting our bill of rights, in Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 3 Pac. 284, it was held: “The bill of rights is something more than a mere collection of glittering generalities; some of its sections are clear, precise and definite limitations on the powers of the legislature and all other officers and agencies of the state; and while others are largely in the nature of general affirmations of political truths, yet all are binding on legislatures and courts, and no act of the legislature can be upheld which conflicts with their provisions, or trenches upon the political truths which they affirm.” (Syl. If 1.) In Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, the court had occasion to consider section 1 of our bill of rights and quote the same, which reads: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” (p. 600.) And after discussing its general character it said: “The result is that the declaration of the bill of rights quoted above is not a prohibition against just restrictions upon the enjoyment of liberty and the pursuit of happiness, in the interest of the public good. It is a political maxim addressed to the wisdom of the legislature and not a limitation upon its power. It is not a mere ‘glittering generality’ and cannot be entirely disregarded in any valid enactment (see Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 665, 3 Pac. 284), but it lacks the definiteness, certainty and precision of a rule, like the command of the bill of rights respecting slavery, or religious freedom, or bail, or trial by jury, and consequently cannot, as those provisions do, furnish a basis for the judicial determination of specific controversies.” (p. 601.) At no time in the history of our state have the conscientious religious beliefs of people been restrained, prohibited, or penalized by any statute. Counsel for the state rely upon article 6, section 2, of our constitution, which reads: “The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate and university departments.” Under the direction there given the legislature has been active in providing schools of the various types enumerated for the children and students of our state. These schools are free schools (Board of Education v. Dick, 70 Kan. 434, 78 Pac. 812). The general theory of our educational system is that every child in the state, without regard to race, creed, or wealth, shall have the facilities for a free education. The more than five thousand sections of our statutes relating to schools (see G. S. 1935, ch. 72, and 1941 Supp.) are built around this general concept. Our courts have been reluctant to sustain an order expelling a child from school. (See Osborn v. Russell, 64 Kan. 507, 68 Pac. 60; Ryan v. Board of Education, 124 Kan. 89, 257 Pac. 945; Nutt v. Board of Education, 128 Kan. 507, 278 Pac. 1065; Jacobs v. Templeton, 130 Kan. 248, 285 Pac. 541.) When our statute (G. S. 1935, 72-5308) was enacted in 1907, authorizing the state superintendent to prepare for the use of the public schools of the state a program providing patriotic exercises, including the salute to the flag, the legislature did not make the participation in such part of the program as might be objectionable to a student on religious grounds a reason for excluding the child from school. Indeed, it provided no penalty, either as against the state superintendent for failure to outline such a patriotic program, or as against those conducting the schools for the failure to carry it out, or as against a child for failing to participate in it, whatever the reason might be for such failure on the part of any of them. In short, it was not a penalizing statute. As we previously have seen, the same act of the legislature made it the duty of school boards to provide flags and equipment for its display. Obviously, many of them had not done so, and twelve years later the legislature did add a penalty (Laws 1919, ch. 274, § 4, repealed by Laws 1939, ch. 309, new act; see G. S. 1941 Supp. 73-710); but that went only to the proprietors of the school if they failed to get the flags and equipment and to display them on the school grounds or in the schoolhouse after having been notified by the county superintendent to do so, and having failed to comply with the notice after thirty days. Section 7 of our bill of rights, and article 6, section 2, each being a part of our constitution, must be construed together. While under article 6, section 2, the legislature is required to establish a system of schools, in doing so it cannot violate section 7 of the bill of rights. As we have seen, the legislature has established a system of free schools designed to afford facilities for the education of all the children of the state without regard to their race, creed or wealth. It never has attempted to exclude from our schools any child solely because of the sincere religious beliefs of the child or his parents. In the thirty-four years since the statute (G. S. 1935, 72-5308) was enacted no school board, county, or state superintendent of public instruction ever acted upon the theory that failure of the child to salute the flag, where such failure was based on sincere religious beliefs of the child or his parents, would require, or justify the expelling of the child from school. We think the statute never was designed to be so construed, and if so, to that extent would be void as being in violation of section 7 of our bill of rights. It was not until after the decision of the Gobitis case, supra, that the school boards of the districts where appellants’ children attended school, in cooperation with the county superintendent of public instruction of Cherokee county, conceived the notion that the failure of such a child to salute the flag justified expelling the child from school. As we have seen, the Gobitis case is not in point. It dealt only with the federal constitutional provisions as applied to a valid state law. Here we have no valid state law for the expelling of a child for such a reason. Indeed, we think no valid state law to that effect could be enacted. We are not impressed with the suggestion that the religious beliefs of appellants and their children are unreasonable. Perhaps the tenets of many religious sects or denominations would be called reasonable, or unreasonable, depending upon who is speaking. It is enough to know that in fact their beliefs'are sincerely religious, and that is conceded by appellee. Their beliefs are formed from the study of the Bible and are not of a kind which prevent them from being good, industrious, home-loving, law-abiding citizens. Upon this point the evidence is clear. The court holds there is and can be no statute or regulation valid under our constitution which would authorize or justify expelling the children of appellants from school for the sole reason used as a basis for such action in the cases before us. We think it not necessary to say more. Some cases are cited from other jurisdictions in which varying results have been reached for various reasons stated. It will answer no good purpose to analyze those cases. From what we have said it necessarily follows the judgments appealed from should be reversed with directions to discharge the appellants. It is so ordered.	[ -76, -38, -36, 62, -86, -64, 122, -98, -79, -79, -89, -45, -87, -62, 21, 125, -39, -25, 80, 105, -36, -78, 83, -61, -72, -13, -1, -41, 59, 79, -18, 61, 74, -76, -54, -11, 6, -53, -59, -44, -126, 7, 59, 83, 89, -93, 36, 105, 50, -114, 37, 30, -29, 46, 28, -45, 104, 109, -40, -84, 1, -77, -104, 13, 123, 6, -109, 1, -118, -123, -8, 44, 28, 49, -127, -24, 51, -94, 70, -11, -49, -119, -119, 48, 102, 1, 44, -9, -100, -55, 86, 118, -83, -94, -109, 121, 34, -124, -67, -99, 118, 16, 35, 122, -29, -60, 23, 108, 7, -113, -92, -77, -115, -91, -126, 50, -29, 35, 49, 85, -51, -66, 86, 86, 33, -109, -50, -68 ]
The opinion of the court was delivered by Smith, J.: This was a claim for workmen’s compensation. The commissioner of workmen’s compensation made an award in favor of the claimant. The employer and its insurance carrier appealed from this award to the district court. The district court awarded a less amount of compensation than was awarded by the commissioner of workmen’s compensation. The claimant has appealed. The only question in this case is the extent of the disability of the claimant. On September 27, 1940, she was injured when a fellow workman pushed a chair from under her, causing her to fall to the concrete floor. She continued to work for several weeks. On October 11, 1940, a doctor diagnosed her injury as an injury to the coccyx and sacrum. On October 31 X-ray pictures were taken of the injury and she was placed in a cast. She remained in this cast for twenty-eight days. Compensation was paid her by the respondent for seven weeks, at the rate of $6 a week. The last payment was made on December 15, 1940. No medical or hospital attention was furnished to her by respondent. On March 8, 1941, she filed her application for compensation. The commissioner of workmen’s compensation made an award on April 30,1941, for temporary total disability at the rate of $7.20 per week until the further order of the commission but in no case to exceed 415 weeks. The commissioner also ordered that the respondent pay the hospital bill in the sum of $139.80 and the bill of her doctor in the sum of $143 and medical attention not exceeding $500. This award was appealed to the district court. There the record was examined and the court found that the claimant’s injury was temporary in character; that she had been disabled for eight weeks, and allowed her the sum of $7.20 per week for a period of seven weeks, credited against this the sum of $42 which had already been paid her, and allowed her $8.40 general compensation. The court also allowed the hospital bill in the sum of $139.80 and the doctor bill from the 11th of October, 1940, to April 18, 1941. From that judgment the claimant has appealed to this court. Claimant argues that there was no evidence whatever to sustain the finding of the trial court that claimant was disabled for eight weeks. This record discloses that doctors called on behalf of claimant testified in a way which would sustain the award made by the commissioner of workmen’s compensation. On the other hand, the one doctor called for the respondent testified that she was not injured at all. He said: “In my opinion from looking at the X rays it was not necessary for her to go to the hospital to have a cast put on.” He also testified that any trouble she had was caused by a congenital anomaly. Another doctor testified to the same effect as to the congenital anomaly and that her condition was not the result of any injury. He said: “Thought probably she might have a little sensitiveness of the coccyx but she was not disabled.” Evidently the court saw fit to believe the evidence of the last two doctors. This court on appeal in a workmen’s compensation case cannot weigh conflicting evidence. Our jurisdiction is restricted to an examination of legal questions. See Miller v. K. S. Flint Rig Co., ante, p. 66, 122 P. 2d 734, also Proffitt v. Aldridge, 154 Kan. 468, 119 P. 2d 523. The claimant argues that there was no evidence whatever to sustain the finding that the claimant had been disabled for eight weeks. It is true there was no evidence as to this exact period of time. However, if the court believed the two doctors, to which reference has been made, their evidence was to the effect that she was not injured at all. Hence the court awarded her more compensation than she was entitled to under their evidence. She cannot, therefore, be heard to complain. , The judgment of the trial court is affirmed.	[ -48, 122, -107, -36, 26, 99, 42, -102, 115, -115, -89, 87, -83, 71, 13, 107, -85, 61, 81, 43, -41, 35, 23, 75, -6, -45, 123, -33, -79, -1, -12, -76, 77, 56, 2, -107, -26, -48, -51, 20, -52, -107, -87, -19, 121, 2, 56, 47, -24, 79, 49, -34, 75, 46, 28, 71, 44, 40, 123, 50, -64, -15, -126, 13, -3, 16, -93, 6, 30, 71, -8, 28, -102, 49, 64, -20, 48, -10, -125, 53, 119, -71, 4, 98, 98, 48, 29, -27, 120, -72, 54, -66, -97, -92, -109, 24, 26, 65, -66, -103, 108, 4, 6, 94, -1, 93, 93, 44, -117, -113, -106, -77, -49, 96, -100, -117, -17, -125, 18, 117, -52, -94, 92, -57, 123, 27, -121, -102 ]
The opinion of the court was delivered by Smith, J.: This is • a claim for workmen’s compensation. The commissioner of workmen’s compensation found for the respondent and refused to award compensation to the workman. On appeal the district court considered the record made before the commissioner and gave judgment in favor of the claimant. The respondent appeals. The only question in the case is whether the claim for compensation was made within ninety days of the accident or the last payment of compensation. The injury occurred on October 23, 1938, when claimant was hit on both shins with a piece of pipe. Claimant had pneumonia about five years before the accident, followed by phlebitis, which left him with varicose veins in his right leg, which caused poor circulation. Claimant continued to work until October 29, when he was off a few days. He returned to work on December 9, 1938. He was asked to sign a release and when he objected to this because his leg was not healed the yard foreman of his employer assured him his case would be taken care of if he signed the release and went to work. The leg did not get well and claimant was forced to quit work. He underwent treatment and was paid compensation until May 8,1939. All the above facts were found by the trial court, are supported by the evidence and are not disputed by respondent. The final outcome of the case depends on what happened subsequent to May 8, 1939. The trial court found that on May 8, 1939, claimant was put to work at lighter work in order that his leg might be exercised and that this was done at the direction of the company’s doctor. There is a dispute in the evidence as to this, but both claimant and his wife testified to that effect. We cannot say there was not substantial evidence to warrant the court in making that finding. The court also found that on that date the wound on the claimant’s right leg was not completely healed and that claimant told the yard foreman for respondent that he was back at work to secure exercise so that the leg would eventually heal and that when the superintendent asked claimant to sign a receipt, for compensation claimant asked about further treatments for his leg and the yard superintendent told him.that it would be taken care of the same as it had been. There is evidence both ways as to this finding. We cannot say, however, that there was not substantial evidence to warrant the court in making it. The court further found that on May 8 both claimant and respondent’s doctor believed that exercise occasioned by the work furnished claimant would result in his recovery, and that after May 8, 1939, respondent continued to furnish medical treatment to claimant through its doctor. The case turns in part upon whether there is substantial evidence to warrant the court in making the above finding. The doctor denied categorically that he treated the claimant after May 8 for anything except slight injury that claimant received on the same leg and about the same place as the former injury. On the other hand, claimant testified as follows: “The doctor told me of an evening when I would get home from work, I would set down and elevate my leg and put a light on it part of the time, just an ordinary electric light. I made several trips to the doctor’s office after May, 1939, that is, after I went back to work in May. I went about every week or two. He would make an examination of the leg and put a light on it some, not all of the time. He told me to just continue working on the truck, lighter work than I had been doing. I asked him why it didn’t heal up and he said it was on account of the poor circulation in the leg and that proper treatment was light work and exercise. I followed the doctor’s instructions.” Again the claimant testified as follows: “I went to Doctor Sutter’s office from May 7 to February 22, 1940. Doctor Sutter would look at my leg and see how it was getting along and treat it part of the time and put a light on it. The longest period between May 8, 1939, and February 22, 1940', I did not go to Doctor Sutter was around three weeks.” On this point the doctor testified as follows: “I have no records of treatments for Darrell Bishop between the dates of May 8, 1939, and July 21, 1939. I have all of my office records on his treatments and there are, no records of any treatments other than those I have given. I have no record of any treatment between July 31, 19391, and November 21, 1939. I have no record of having seen Mr. Bishop between those times. We had conversations during that time. I would talk to him, but no treatment. He never complained to me about his leg during that time. We keep a record of all treatments given, but we don’t keep a record of a good conversation or gun trade.” It will be seen from the above evidence that the defendant testified positively that the company’s doctor treated him from May 3 up until February 22, 1940, and that the doctor admitted that he saw him during that time. Certainly we cannot say that there was not substantial evidence to sustain the court in making the finding that the doctor had treated him. As has been said so many times when a workmen’s compensation case reaches this court on appeal, we cannot weigh evidence. Our jurisdiction is limited to deciding matters of law. The court next made a finding as to an injury that occurred to this same leg and for which the doctor treated claimant. There is substantial evidence that this injury aggravated the condition that had been brought on by the previous injury and that the final condition of claimant was due to- the first injury. The court found that ample medical attention was furnished claimant by the respondent until February 22, 1940, at which time another doctor was consulted by defendant. February 22, 1940, claimant was forced to quit work on account of his injury. On March 4, 1940, claimant made demand for compensation. Based on the above facts, the trial court awarded compensation. There is no dispute about the amount awarded. The trial court allowed the respondent credit for payment of compensation during the weeks that claimant was working at the so-called light work, that is, the trial court treated part of the wages paid him during that time as compensation. The respondent argues here that the record does not support a conclusion that the work done by claimant after he came back to work on May 8, 1939, was any lighter than the work he was doing at the time of his injury and argues further that in the absence of such a showing it was error to treat part of the wages paid him as compensation. In our view, a decision of the case does not turn upon that interesting point. The trial court found that the respondent furnished medical services to claimant until February 22, 1940. The claim was filed March 20, 1940. , There was substantial evidence to sustain these findings. The claimant testified that not more than two weeks ever passed between May 8, 1939, and February 22, 1940, without his receiving treatments from the company doctor. The trial court found that these treatments were furnished by the respondent. The furnishing of medical aid to an injured employee constitutes the payment of 'compensation within the meaning of G. S. 1941 Supp. 44-520a and a written demand filed within 120 .days of the last furnishing of medical aid is filed in time. See Richardson v. National Refining Co., 136 Kan. 724, 18 P. 2d 131; G. S. 1941 Supp. 44-520a; also G. S. 1941 Supp. 44-510; Wolgamott v. Vinegar Hill Zinc Co., 151 Kan. 374, 99 P. 2d 755; Ketchell v. Wilson & Co., 138 Kan. 97, 23 P. 2d 488. The conclusion of the trial court that the claim was filed in time cannot be disturbed. The judgment of the trial court is affirmed. Hoch, J., not participating. ,	[ -48, 120, -112, -115, 26, 96, 42, -38, 49, -107, -89, 123, -19, -57, 73, 105, -93, 61, 81, 43, -9, -77, 19, 75, -38, -9, 123, -51, -71, 125, -12, -107, 77, 48, 10, -43, -26, 64, -59, 94, -50, -123, -85, -23, 25, 0, 56, 106, -16, 93, 21, -118, -21, 46, -104, -49, 44, 40, 107, 58, -47, -79, -94, 13, -3, 1, -93, 5, -100, 111, 88, 28, -104, 49, -64, -56, 82, -74, -57, 117, 35, -87, 12, 98, 98, 50, 21, -17, -8, -72, 46, -2, -115, -92, -125, 56, -85, 39, -100, -103, 106, 84, -90, 122, -2, 93, 93, 44, 7, -117, -90, -110, 79, 36, -100, -117, -21, -121, -73, 117, -34, -86, 92, 68, 115, 27, -105, -70 ]
The opinion of .the court was delivered by Hoch, J.: Appellant, defendant in a criminal action, sought, by appropriate motions, to withdraw a plea of guilty and have the sentence theretofore imposed vacated. The motions were overruled and he appeals. In April, 1940, the appellant, S. Newton Bowser, was charged in Neosho county with manslaughter in the fourth degree and with leaving the scene, of an accident without giving information as required by G. S. 1939 Supp. 8-518, 8-520. About fifteen months later, on July 8, 1941, he entered a plea of guilty on both counts and was sentenced to one year in jail on each of the two counts, the sentences to run concurrently. Appeal was taken from the judgment and sentence. Later, on July 23, 1941, appellant filed a motion to withdraw the plea, vacate the sentence and enter a plea of not guilty. The trial court held that by virtue of an appeal having been taken to this court, it was without jurisdiction to consider the motion to withdraw the plea and vacate the judgment. From that determination appeal was taken and we held (State v. Bowser, 154 Kan. 427, 118 P. 2d 1055) that the trial court had not lost jurisdiction, and sent the case back for consideration of the motion. In due course hearing was held on the motion to withdraw and vacate, and on January 14, 1942, the trial court overruled the motion. From that order this appeal followed. We are not here directly concerned with the circumstances out of which the prosecution of the defendant arose. But as background for consideration of the instant issue the facts will be briefly stated. Defendant Bowser was driving from Parsons, Kan., on his way to Topeka, on the evening of March 6, 1940. His car skidded into a pile of gravel. It is alleged that his car struck a man named Moore and that death resulted from the injuries. Following appellant’s arrest in March, 1940, he employed an attorney in Topeka to defend him, but discharged the attorney prior to the plea of guilty in July, 1941. In connection with his motion for leave to withdraw the plea, appellant charged that he had been deceived and defrauded by the attorney, and much of the record before us relates to those charges. While more or less pertinent to the hearing on the motion, they are not at issue here, and we shall not recite them in detail. Following the discharge of the attorney first employed, the appellant pleaded guilty, the plea being entered by a Neosho-county attorney, em ployed solely, as he testified, for the purpose of presenting the plea. Attorneys subsequently employed, and now of record, presented the motion to withdraw the plea. We need not narrate all the facts and circumstances alleged in support of the motion. The trial court found them insufficient to entitle the appellant to withdraw the plea. Ordinarily, we would not disturb such a finding by a trial court. And in this case it may well be that the patience and considerate attitude shown by the trial court had been sorely tried over the long period during which the case was pending. However, there is one fact which stands out in bold relief in this record—whatever might be said as to other contentions urged by appellant—which in our opinion requires reversal, with direction to permit withdrawal of the plea. It is perfectly clear, and not seriously controverted by the state, that the plea of guilty was entered on the theory, shared by counsel and court alike, that the conviction of manslaughter in the fourth degree would stand as conviction of a misdemeanor, rather than of a felony, provided the court sentenced the defendant to a term in the county jail rather than in the penitentiary. We are convinced, from the record, that the appellant so believed when he pleaded guilty. Although the trial court struck from the record, upon the hearing on the motion, the testimony and the affidavit of appellant’s attorney on that question, we cannot close our eyes to the obvious fact that those giving professional counsel to appellant mistakenly advised him that the offense charged would be treated as a misdemeanor rather than as a felony. But even if we were to disregard counsel’s advice to appellant on this question, the statement made by the court before passing sentence cannot, in justice to appellant, be ignored. The trial court said: ■‘Gentlemen, this, like a lot of these things, is very unfortunate. Here is'a .man who has made good for a number of years, in fact', for a long time, as a business man in the state of Kansas, and he is highly regarded, not only by his own people, but by everybody who knew him. . . . Yet there has been a serious violation of the laws of the state of Kansas. It is a very serious thing to do something that takes the life of a human being. We have to look back on the whole thing. “The laws of the state of Kansas with reference to homicide are rather complicated. We' start out with what is known as ‘first-degree’ murder, and we have ‘second degree,’ and four degrees of manslaughter. Those all involve the taking of human life, that is, doing something that causes a human to die. Fourth-degree manslaughter is the lowest degree of homicide. It follows, as Mr. Hall said, he is guilty of fourth-degree manslaughter if he is culpably negligent. That means negligent to such a degree that he doesn’t give too much consideration or shows an T don’t care’ attitude as to results of his act. “I know Mr. Bowser, of course, didn’t want to do Mr. Moore any harm, any more than you or I wanted to do him harm. Of course, he was on the highway; Mr. Moore was on the highway; they both had a right to be there. The law puts the duty on you and me and everybody else to conduct ourselves on the highway so we will not do injury to others. The law must be upheld. “However, I don’t believe that Mr. Bowser should be made a felon in this case; that is, I don’t think he should receive a penitentiary sentence. The law gives the court discretion to either sentence' to the penitentiary or to the county jail. If he should go to the penitentiary, he becomes a felon; if he goes to the county jail, it is regarded as a misdemeanor. The law placed that discretion in the judgment of the court and expects the court to exercise that judgment with reference' to all the facts and circumstances .in each case that comes before him. It puts quite a burden on the court, but somebody has to exercise it and it is placed in the hands of the judge in this case. If Mr. Bowser should become a felon, I presume, of course, his business would then all be gone; he would lose his license.” (Italics ours.) Certainly the defendant (appellant here) cannot complain of the spirit and consideration shown by the court in fixing the sentence, and the statement concerning observance of the law was an admirable one. But the court was clearly wrong as to the classification of the offense. Whether an offense is to be classed as a felony or as a misdemeanor is determined by the sentence which might be imposed, under the statute, and not by the sentence actually imposed. In the case of In re Stevens, Petitioner, 52 Kan. 56, 59, 34 Pac. 459, it was said: “Within the statute, ‘the breaking of a jail’ before conviction may be punished by confinement and hard labor in the penitentiary. Under the great weight of authority, any offender who may be punished in this matter [manner] is guilty of a felony. To constitute that grade of offense, it is not necessary that it must be so punished; the maximum punishment to which the offender is punishable—that is, may be punished or is liable—is the test by which the degree of the offense is determined.” We find no case in which this rule, which is clearly in line with our statutory definition of a felony, has not been followed in this state. Moreover, it is the general rule, though the rule is otherwise in a few states by the express terms of their statutes. (22 C. J. S. 56, 57.) Under our statute (G. S. 1935, 62-104) a felony “is an offense punishable by death or by hard labor in the penitentiary.” Manslaughter in the fourth degree is punishable “by confinement and hard labor for a term not exceeding two years, or by imprisonment in the county jail not less than six months.” (G. S.T935, 21-423.) It follows that when appellant pleaded guilty to manslaughter in the fourth degree he pleaded guilty to a felony and became a felon regardless of the sentence subsequently imposed, and in spite of the trial court’s comment “I don’t believe that Mr. Bowser should be made a felon in this case.” The seriousness of this error, dealing with a matter so vital to the interests of the defendant, is so apparent that it requires no discussion here. It would be serious to any defendant, and in this case it has an added importance due to the fact—noted by tfee trial court (swpra)-—that appellant is a licensed funeral director and that conviction of a felony is statutory grounds for revocation of his license. (G. S. 1935, 65-1722 [b].) While it is readily understandable that counsel and court might make the mistake of thinking the sentence imposed would classify the offense as a misdemeanor, the defendant was clearly entitled to withdraw his plea and plead again, when the serious error had been discovered. Regard for the fundamental rights of the accused prevents our sanctioning anj*- other course. We have given consideration to the fact that appellant pleaded guilty and was sentenced on two counts and that the second count— leaving the scene of an accident—is a misdemeanor, and that if the sentence on the felony count only were set aside the sentence for one year would still stand as to the misdemeanor count. The state, however, makes no point of this, and we find ample reason for its not doing so. Upon this record we would be unable, justly, to sift the considerations incident to the pleas and say that the appellant would have pleaded guilty on the second count independent of the first count. Clearly the whole proceeding was conducted with the two counts considered together and we conclude should be so treated upon review. We are not impressed by appellant’s contention that the trial judge should have disqualified himself from sitting in the case. We find nothing in the record to indicate that he could or would not hear the case, after the plea of guilty is withdrawn and a new plea entered, in a fair, unbiased and impartial manner. • The judgment in the case, docketed on appeal as number 35,557, is reversed and the cause remanded with directions to allow the motion for leave to withdraw the plea of guilty, and to grant a new trial with right to plead again on both of the two counts. Incident to such action, the trial court will of course set aside the sentence. It follows that the appeal from such judgment and sentence, docketed as number 35,359, now serves no further purpose and is hereby dismissed. Smith, J., dissents.	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Supplemental opinion of the court was delivered by Hoch, J.: The opinion in this case was filed on October 3, 1942, reversing the judgment with directions to dismiss the action for lack of jurisdiction. To what was then said we add the following statement : It appears that some time after the appeal to this court had been taken, and soon after our decision in Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438 (referred to and followed in our opinion of October 3), the trial court, on its own motion, entered an order dismissing the action. Such order wras nowhere shown or referred to in the printed record before us, the abstract and briefs apparently having been prepared before the order was made. In oral argument the fact was casually mentioned that such an order had been entered by the trial court. However, appellant pressed his appeal here and appellee did not contest his right to do so. There was no motion to dismiss the appeal. The general rule, based upon sound reasons, is that where an ap- • pealable judgment or order has been entered, the right of review cannot be cut off by dismissal of the action in the trial court. (St. Paul Fire & Marine Ins. Co. v. Bender, 153 Kan. 752-754, 113 P. 2d 1062, and cases therein cited.) No question as to the applicability of the rule was here raised, and the issue of jurisdiction was considered on its merits. However, we think it only fair to the trial court to note the fact that upon its own motion it had already entered an order of dismissal.	[ -80, -6, -7, -67, 42, -31, 34, -104, 80, -27, 39, 115, -87, -117, -123, 121, 119, 61, 81, 123, -57, -77, 22, -56, -10, -13, -15, -51, -75, -51, 102, 86, 76, -95, 2, -107, 102, -64, -59, 20, -50, 5, 8, -23, 81, -122, 48, 59, 80, 15, 53, 62, -29, 42, 27, -61, -83, 40, -55, 45, -64, 120, -102, 45, 95, 0, 49, 32, -100, -122, 64, 60, 16, 49, 19, -4, 115, -90, -122, 53, 107, -7, 44, 102, 99, 19, -100, -17, -4, -88, 14, 30, -99, -90, 29, 8, 9, 1, -74, -67, 116, 18, 6, 110, -17, 29, 31, -20, 15, -117, -92, -75, 63, 21, 50, -125, -21, -109, 16, 113, -52, -6, 92, 71, 27, -101, -122, -100 ]
The opinion of the court was delivered by Allen, J.: This appeal is from a judgment in a workmen’s compensation case. Claimant was employed by the respondent as a rig builder. On September 2, 1940, he was engaged in tearing down a derrick and lifting out derrick legs which weighed 160 pounds. These derrick legs had to be lifted out of grooves. After working about three hours on that date, claimant noticed a pain in his right arm. Claimant laid off a couple of days and then returned to work for two days. His muscle grew soft and flabby, but after being off work for sometime it seemed to regain somewhat its normal shape and size. However, work would make it soft and flabby again and lose what it had gained. Claimant worked a few days in October and November with the same result, that his arm would get soft and flabby. Prior to September 2, 1940, claimant’s arm had never bothered him, and he had been in' excellent health. Claimant testified that he didn’t slip, fall or stumble; that it was while he was working that he noticed the pain, and that there were no incidents when the weakness or pain started. He further testified that the arm was showing improvement in the last two weeks. Claimant was treated by Dr. E. R. Hill who, by a process of elimination, the case not conforming to any diseased condition known, concluded that the cause of his condition was the result of a strain. Dr. Fred J. McEwen examined claimant on February 18, 1941, and found the muscle power in the right arm definitely impaired. He gave as his conclusion that the claimant was suffering from some disease, probably a mild attack of anterior poliomyelitis or infantile paralysis. Dr. Charles Rombold examined the claimant three times—on October 29, 1940, November 19, 1940, and January 16, 1941. He gave as his opinion that the claimant was suffering from muscular dystrophy, a disease the cause of which is not definitely known, but is definitely not related to infection nor to injury or trauma; that the only possible diagnosis that could have been made were muscular dystrophy or light attack of infantile paralysis. Doctor Rombold testified as follows: “Q. Assuming, Doctor, that Mr. Miller suffered a sprain of the muscles of the arm, would more than one of the muscles very likely have been affected, or would it have cleared up by the time you examined him? A. A single muscle is very often involved in a sprain but there are certain physical findings which are quite evident. When such a muscle is sprained, there is localized tenderness; there is swelling; there is pain oh resisted motion; there is pain on function. “Q. Did you make any such findings in this case? A. No, sir. “Q. Isn’t it true that ordinarily a sprain of a muscle with proper treatment will clear up within a short time? A. Yes, unless there has been considerable hemorrhage in that muscle, and if there has been considerable t hemorrhage it may cause symptoms for a long period; but in that type of injury there is always palpable the mass surrounding the hemorrhage and frequently that mass becomes clacified, which can be easily- seen. There is always pain localized in the area of tenderness when that condition exists. “Q. And none of those symptoms appear here? A. No, sir.” The commissioner found: “It is found from the evidence that the disability suffered by the claimant herein is not the result of an accidental injury arising out of and in the course of his employment with respondent, and compensation therefor should be denied.” On appeal a similar finding was made by the district court. This appeal followed. The precise question now presented came before this court in Meredith v. Seymour Packing Co., 141 Kan. 244, 40 P. 2d 325. The syllabus in that case reads: “The record in a workmen’s compensation case examined, and held, that the finding of fact by the compensation commissioner and approved by the trial court that claimant’s incapacity did not arise out of nor in the course of his employment, and the consequent denial of claimant’s demand for compensation, does not present a question of law for appellate review; and the supreme court has no jurisdiction to consider it.” In the case before us there was little dispute as to the facts. There was ample evidence to sustain the judgment of the district court. As this court has no jurisdiction to retry issues of fact, and as no question of law is presented for review, the appeal must be dismissed. It is so ordered. Hoch, J., not participating.	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The opinion of the .court was delivered by Wedell, J.: This was an action for the specific performance of an oral contract whereby it was alleged the decedent had agreed to leave all of his real estate and most of his personalty to the plaintiff, in consideration of services, and to set aside all provisions of his will, except one, which were at variance with the alleged contract. Defendants, the executor of decedent’s estate, and all devisees and legatees, except one, appeal from the order overruling their joint demurrer to the petition. The action was brought in the district court of Pawnee county, April 30, 1941. The petition, insofar as important, in substance alleged: Decedent’s last will was executed March 28, 1940, and was admitted to probate October 4, 1940, in the probate court of Stafford county, the county of decedent’s residence. Plaintiff was a resident of Pawnee county. The land involved’was situated in Pawnee county and plaintiff was in the actual possession thereof. The personalty, in the sum of approximately $14,000, was in the possession and under the control of the executor in Stafford county. The alleged contract was originally entered into by plaintiff and decedent in 1928. Under its terms plaintiff and his wife were to make a home for decedent on his farm by furnishing the labor and supervising the operation of the farm. Decedent was a bachelor and then about sixty-five years of age. Plaintiff performed the contract and also furnished some equipment and made certain improvements on the farm. In 1929 decedent made a will which was in substantial compliance with the alleged agreement, except that it contained a bequest in the sum of $3,000 to one May Tickell. Plaintiff was advised concerning that particular bequest, agreed to it and continued in the performance of the contract. Plaintiff did not have a copy of that will and believed it had been lost or destroyed. Under the terms and provisions of the last will, now in question, all former wills were revoked. Three thousand dollars was therein bequeathed to May Tickell, but all other property, both real and personal, was devised and bequeathed to persons other than the plaintiff. ■ It was in substance further alleged: Plaintiff’s performance could not be compensated in money. The will constituted a cloud upon plaintiff’s title to the real estate. Except for the bequest to May Tickell and the provisions for the payment of debts of the estate and the expenses of administration, the will should be vacated and set aside and plaintiff should be declared to be the owner and entitled to the possession of the real and personal 'property of decedent’s estate. The petition also requested that in the event it was found impossible to decree specific performance, that then and in that event plaintiff should be granted a money judgment in the alternative. While the demurrer was based upon five separate grounds, the principal ground urged by defendants is that the district court was without jurisdiction to entertain the action. They insist it was the intent and purpose of the new probate code to confer exclusive original jurisdiction upon probate courts over all matters which pertain to both the settlement and distribution of decedent estates, except where that code otherwise provides. Defendants also maintain the action, for all practical purposes, constituted a contest of the will for the reason that the action, if successful, would result in vacating and setting aside the provisions of the will whereby the testator sought to devise and bequeath to them all of the real estate and all of the personalty, except the $3,000 bequeathed to May Tickell. Defendants contend, under the new probate code, a will contest-action can be brought only in the probate court of the county in which the will is probated. On the other hand, plaintiff contends probate courts have no equitable jurisdiction and that the venue of the instant action is fixed in the district court of the county in which the land is situated by G. S. 1935, 60-501, which, so far as here material, reads: “Actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in the next section: First, for the recovery of real property, or of any estate or interest therein, or for the determination in any form of any such right or interest, or to bar any defendant therefrom. . . .” Plaintiff argues this statute contains no exception and that none can be read into it. In support of his contention he cites the case of Patterson v. Mitchell, 135 Kan. 585, 11 P. 2d 1022, in which it was held the statute made no exception in the case of an action brought by a receiver who had been appointed by the district court of a county other than that in which the land was situated and that the receiver was obliged to bring the action in the county where the land was situated. Numerous prior decisions are cited in that opinion in support of the rule that actions for the recovery of real property, or of any estate or interest therein, or for the determination in any form of such right or interest, must be brought in the county where the real property is situated. In support of plaintiff’s contention he also relies upon the case of Smith v. Miller, 147 Kan. 40, 75 P. 2d 273, in which it was held an injunction action by a lower riparian landowner was properly brought against an upper riparian owner in the district court of the county where the injuries to plaintiff’s land occurred. Plaintiff cites other similar cases. None of those cases, however, involved the settlement or distribution of decedent estates; and they were all decided prior to the adoption of the new probate code which became effective July 1, 1939. (G. S. 1939 Supp. 59-2602.) Plaintiff cites other cases, such as In re Estate of Hutchison, 151 Kan. 333, 99 P. 2d 992; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812, and Paton v. Paton, 152 Kan. 351, 103 P. 2d 826. Jurisdiction of the probate court had not been invoked in the Johnson case, and the decision in nowise involved the provisions of the new probate code. The only question there presented pertained to the sufficiency of the evidence to establish the pleaded oral contract. In the Hutchison case the appeal in the district court was tried before the new probate code became effective. The only issue presented on appeal in the Patón cáse was whether the contract pleaded was unenforceable under the statute of frauds. Plaintiff also claims this court, by decisions subsequent to the adoption of the new probate code, has decided that district courts have jurisdiction to determine equitable questions pertaining to decedent estates, and cites Mirise v. Rathbun, 152 Kan. 441, 104 P. 2d 420; Grinnell State Bank v. Fellhoelter, 153 Kan. 554, 112 P. 2d 116; Leidigh & Havens Lumber Co. v. Wyatt, 153 Kan. 214, 109 P. 2d 87, and West v. Sims, 153 Kan. 248, 109 P. 2d 479. The Mirise case was determined by the provisions of the old probate code and is not in point. It was there held: “An action brought in the district court April 14, 1939, under G. S. 1935, 22-223, to contest an order of the probate court of January 7, 1939, refusing to admit a will to probate, was not abated by the enactment of the Kansas probate code, effective July 1, 1939, which repealed G. S. 1935, 22-223.” (Syl.) In the instant case the will, as disclosed by plaintiff’s petition, was both executed and probated after the effective date of the new code. The Grinnell State Bank case was an action in the district court to enforce a lien on the property of a decedent who at the time of his death and at the commencement of the administration of his estate in the probate court was a shareholder of an insolvent state bank. Administration of his estate was commenced under the old probate code. The decision is not authority for plaintiff’s contention that the instant action was properly brought in the district court under the new probate code but, on the contrary, it is authority for the proposition that the action by the Grinnell State Bank was properly brought in the district court under the old probate code. The Leidigh & Havens Lumber Company case involved the foreclosure of a materialman’s lien. We there reviewed applicable provisions of the new probate code and held, under express statutory provision of the new code, that action in the district court constituted a demand legally exhibited. We may pause to state that was also the rule under the old code. The materialman’s lien constituted security for plaintiff’s money demand against the estate. Furthermore, the new probate code expressly authorizes a claimant to exhaust his security before making demand for any balance which may remain due after exhausting his security. (G. S. 1939 Supp. 59-1303.) -It also may be noted the instant action was not brought upon the theory plaintiff had a demand for money, secured or unsecured, against the estate. He expressly pleaded his claim could not be compensated in money. His’ petition was clearly predicated upon the theory he was the owner of the real estate and most of the personalty of , decedent’s estate. Furthermore, he conceded his alleged interest was subject to the payment of both decedent’s debts and the expenses of administration. The lumber company case is not authority for plaintiff’s contention that the instant case was properly brought in the district court. In the West case no will had.been probated. Manifestly, the estate was not being settled or distributed pursuant to a will over which the probate court had assumed and was exercising jurisdiction. While the pleadings in the West case raised the question of the jurisdiction of the district court to entertain the action for spe cific performance of the oral contract and although the trial court ruled upon that issue, appellants did not include that ruling in their specifications of error and the' question of jurisdiction was not decided or discussed by this court. It thus becomes necessary to ascertain the intent and purpose of the framers of the new probate code. It is the last expression of legislative intent with respect to jurisdiction, procedure and remedies touching the particular subject of settlement and distribution of decedent estates. Before we undertake to deal with specific provisions of that code, touching jurisdiction, it will be well to bear in mind the important fact that when the instant-action was filed in the district court- of Pawnee county, the probate court of Stafford county had long since assumed and was then exercising jurisdiction over this entire estate, including both real and personal property. Long prior to the adoption of the new probate code it was well established that if a party had a plain and adequate remedy by an ordinary legal proceeding in the probate court to obtain the desired relief, he could not invoke the jurisdiction, of any district court to accomplish the same purpose. (Correll v. Vance, 127 Kan. 840, 275 Pac. 174; Holmes v. Conway, 128 Kan. 430, 278 Pac. 8; Shuckrow v. Maloney, 148 Kan. 403, 411, 412, 83 P. 2d 118.) Defendants contend, under the new code, probate courts are granted the right to exercise such original equitable powers as may be necessary and proper to fully hear and determine- any matter which pertains to the settlement or distribution of decedent estates, except as to particular matters over which that code confers jurisdiction upon the district court. If at the time plaintiff commenced his action in the district court he had a remedy in the probate court for the desired relief, he manifestly could not ignore the court which was then properly exercising original jurisdiction over the estate. Before analyzing the new probate code we desire to return again to the provisions of G. S. 1935, 60-501, which is the basis of plaintiff’s contention that the civil code makes the district court of the county where real property is situated the forum for the recovery of real property or any interest therein. The second subdivision of that same statute provides that actions for partition of real estate must be brought in the county in which the subject of the action is situated. This court recently had occasion to consider that statute in a partition suit, involving a decedent’s estate, which was decided in the district court of Thomas county prior to the adoption of the new probate code. That was an action by an heir to obtain partition of land situated in Thomas county. (Page v. Van Tuyl, 150 Kan. 285, 92 P. 2d 110.) The estate was then in process of administration in the probate court of Butler county, decedent’s residence.His lands were situated in various counties. The administrator and two groups of heirs filed motions to dismiss the partition suit in the district court of Thomas county upon the ground the probate court, under the then newly enacted statute, G. S. 1937 Supp. 22-736, and under an order of the probate court of Butler county made pursuant to the 1937 law, had drawn unto itself and its administrator all of the property of the decedent to the exclusion of every other court, prior to the filing of the partition suit.' The motion to dismiss the action was overruled by the district court and that ruling was reversed by this court. We held: “Since the enactment of chapter 219 of the Laws of 1937 (G. S. 1937 Supp. 22-735 et seq.) the probate court having jurisdiction to administer an intestate estate, upon proper showing, may draw to itself the administration of the real property as well as the personal property of the decedent; and in such case its jurisdiction of the entire estate is exclusive, and during the pendency of its administration an action for partition of the real estate except as sanctioned by section 4 of the act (G. S. 1937 Supp. 22-738) cannot be maintained in any district court by ah heir or devisee of the decedent.” (Syl.) G. S. 1937 Supp. 22-738, provided: “Whenever the court shall be satisfied that any real estate need not be sold or leased for the payment of debts of the estate, legacies, or costs of administration, the executor or administrator may be ordered to deliver possession of the same to those entitled to it as heirs or devisees.” In the Page case, supva, Chief Justice Dawson carefully reviewed the contrary decisions of this court prior to the 1937 law. He also called attention to the long and patient efforts of the Kansas Judicial Council which finally resulted in the enactment of the 1937 law, and to some of the purposes of that legislation (p. 288). Those matters need not be repeated here. In the opinion it was said: “It is needless to extend discussion on the legal question at issue. The history of the proposed legislation and its eventual enactment make it clear that the legislature intended to and did make a very material change in the-law relating to the disposition of decedent’s estates, and to that end it conferred on the probate court original and exclusive jurisdiction of a decedent’s real estate whenever the welfare of the estate under administration so requires, and the order of the probate court on that subject cannot be gainsaid in another action nor before another court, except by a direct appeal.” (p. 289.) In the new probate code of 1939 the lawmakers expanded even the 1937 act and expressly gave the executor or administrator the unconditional possession of all property of a decedent’s estate, except the homestead and allowances to the surviving spouse and minor children. (G. S. 1939 Supp. 59-1401.) The same statute prescribes specific rights and duties of the executor or administrator with respect to the possession, management and control of the real estate. G. S'. 1939 Supp. 59-301, prescribes the jurisdiction and general powers of probate courts. That statute in part provides: “The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction: “(3) To direct and control the official acts of executors and administrators, to settle their accounts, and to order the distribution of estates. “(5) To determine the heirs, devisees, and legatees of decedents. “(11) Such other jurisdiction as may be given them by statutes pertaining to particular subjects. “(12) And they shall have and exercise such equitable powers as may he necessary and proper fully to hear and determine any matter properly before such courts.” (Emphasis supplied.) From the various provisions of the code it clearly appears the probate court had original and exclusive jurisdiction, not only of the personalty but also of all real property which belonged to decedent’s estate. It was exercising that jurisdiction at the time the instant action was filed. Under the law it was required to determine and describe the property and to state the proportion or part thereof to which each heir, devisee and legatee was entitled, and that decree was binding as to all of the estate of the decedent, whether specifically described in the proceedings or not. (G. S. 1939 Supp. 59-2249.) The probate court could not distribute the estate properly, pursuant to statutory direction, without first settling the questions which were germane to the subject of distribution. Under the provisions of G. S. 1939 Supp. 59-301, that court was expressly granted original jurisdiction and authority to exercise such equitable powers as might be necessary and proper fully to hear and determine any matter properly before it. The matter of the settlement and distribution of the entire estate were properly before it and its original jurisdiction over those matters could not be circumvented by plaintiff filing an independent action in the district court. If plaintiff believed his equitable rights were not properly protected by the decision of the probate court his remedy under the code was an appeal to the district court of the county of the probate court. (G. S. 1939 Supp. 59-2403.) The new code gives the-district court on appeal the same general jurisdiction and powers as though the controversy had been commenced by action or proceeding in the district court arid as though it would have had original jurisdiction of the matter. (G. S. 1939 Supp. 59-2408.) Plaintiff is therefore denied no equitable right in or to a decedent’s estate when required to present his equitable claim in the probate court. This court recently had occasion to consider the various provisions of the new probate code in the case of Erwin v. Erwin, 153 Kan. 703, 113 P. 2d 349. That case was governed by the new code. The question presented was whether the probate court was obliged to distribute the property of decedent’s estate under the law of descent and distribution or whether it had original jurisdiction to settle the estate under the terms of a written contract of the heirs and to distribute it accordingly. We held the new probate code settled the issue and that it gave the probate court original jurisdiction to settle and distribute the estate in accordance with the contract and that the aggrieved party had a clear remedy by appeal to the district court. . It was also there said: “Such contracts have been enforced frequently by probate courts, whether they provide distribution upon a plan different from that prescribed by the statute of descent and distribution -or the statute1 of wills. (Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021; Hirt v. Bucklin State Bank, 153 Kan. 194, 109 P. 2d 171, and cases therein cited.) The modern tendency is to extend the jurisdiction of the probate court in respect to matters incident and ancillary to the exercise of its recognized jurisdiction. (15 C. J. 1012; 21 C. J. S., §§ 301, 304,; In re Osborn’s Estate, 99 Kan. 227, 229, 161 Pac. 601; Myers v. Noble, supra, pp. 436, 437.)” (p. 707.) (Emphasis supplied.) A careful study of the provisions of the new probate code leads us to conclude it was the intent and purpose of the framers of the Kansas probate code and of the legislature which enacted it to grant to probate courts exclusive original jurisdiction over all matters incident and ancillary to the settlement and distribution of decedent estates, except as to any matter over which that code expressly confers concurrent jurisdiction upon district courts. It is -sometimes, suggested probate judges are not required to be lawyers, that they have no knowledge of equitable principles or powers.and, therefore, should not be permitted to attempt to exercise them. By the same token it also might be suggested that they should not be permitted to apply legal principles. Those matters are subjects for legislative rather than judicial concern. Frequently, as disclosed by some of the cases herein cited, a person dies possessed of lands situated in various counties. If a person claiming title to all of a decedent’s lands by virtue of an oral contract with the decedent may file a suit for specific performance in the district court of one county where some of decedent’s land is situated and ignore the probate court which is vested with and is already exercising jurisdiction over all of decedent’s lands, then such person may file similar suits in a dozen or more counties, depending upon the number of counties in which decedent’s lands are located. The result would be a multiplicity of suits and appeals and possibly a variety of conflicting decisions with respect to the title to land belonging to a single estate. We think the lawmakers intended to correct that evil. It must be borne in mind that the executor or administrator, under order of the probate court, now has authority to lease decedent’s land for a term of not more than one year (G. S. 1939 Supp. 59-1409), and to sell the whole or such part of the land as necessity and the interests of the estate require (G. S. 1939 Supp. 59-1412). Defendants’ second contention in support of their demurrer is that the instant action is tantamount to a contest of the will and that an original contest action, under the new code, cannot be filed in the district court. It is true the provision of the old code, G. S. 1935, 22-223, which authorized the filing of an action to contest a will in the district court of the county in which the will had been admitted to probate, has been repealed. (Laws 1939, ch. 180, § 280.) Manifestly, the will and the oral contract under which plaintiff claims title to decedent’s property cannot be harmonized. One or the other must fall. The will had been probated. Plaintiff, by the instant action, challenged the validity of the will to pass title to the property therein described to the persons therein designated. In order for plaintiff to recover he was obliged to get rid of the probated will pursuant to which the estate was being administered. We have repeatedly ruled that an action which in effect contests the will is a will contest action and must be brought as such under the contest statute or not at all. (See Axe v. Wilson, 150 Kan. 795, 804, 96 P. 2d 800, and the numerous cases therein cited.) Those are only a few of the cases which might be cited in support of the’ well-estab lished rule in this state. That rule denies plaintiff no right based upon any theory, legal or. equitable. It simply determines his remedy. (Axe v. Wilson, supra, p. 804.) It is equally well established in this state that the rule applies where a party, in contravention to the terms of a will, seeks to establish his title to the property of a decedent’s estate on the theory of a constructive trust. (Axe v. Wilson, supra, pp. 804, 805, and cases there cited.) The instant action was in effect a contest of the will. The probate court alone now has original jurisdiction of such an action and the remedy of a party dissatisfied with its decision is an appeal to the district court of the county of the probate court. It is not necessary to consider other grounds of the demurrer. The order overruling defendants’ demurrer to the petition is reversed and the cause is remanded to the district court with directions to sustain the demurrer as to all defendants. Allen, J., dissents. Hoch, J., not participating.	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Stegall, J.: In November 2009, Sergeant Clay Germany of the Wichita Police Department received a call from a local high school indicating that a student had reported a sexual assault. Germany interviewed tire victim, T.M.G., who told the officer she was sexually assaulted at her neighbors’ home by a man who was staying diere. Germany contacted the homeowners, who identified the suspect as Magdaleno Garcia-Barron. After making contact with the suspect at the neighbors’ residence, Germany discovered that Garcia-Barron spoke only Spanish. Germany requested assistance from Sergeant Jose Salcido, a Spanish speaking police officer. Salcido arrived at the residence and introduced himself and Germany to Garcia-Barron. Salcido told Garcia-Barron, who was “[v]ery cooperative, veiy friendly,” that there was an incident the police needed to discuss with him. Salcido informed Garcia-Barron that they would need to have the conversation at the state office building and Garcia-Barron agreed to go with the police. Once at the state office building, the officers placed Garcia-Barron in an interview room. Prior to the interview, Germany and Salcido discussed the facts of the case between themselves. Salcido asked to conduct the interview alone, reasoning that it would be easier to “directly ask the questions and get the answers [himself].” Salcido then presented Garcia-Barron with a Spanish-language Miranda warning and waiver form. Salcido went through each section of the Miranda waiver with Garcia-Barron in Spanish and Garcia-Barron initialed each section, indicating that he understood. As this was happening, Garcia-Barron told Salcido several times that he did not know why he was there. Salcido told Garcia-Barron that he could not discuss the details of the case with Garcia-Barron until the Miranda waiver form was signed. Garcia-Barron then signed the waiver form. Salcido proceeded with questioning and Garcia-Barron confessed to having had sexual intercourse with T.M.G., stating that he believed her to be 16 or 17 years old. T.M.G. was, in fact, 15 years old at the time of the incident. The State charged Garcia-Barron with one count of rape and, in tire alternative, one count of aggravated indecent liberties with a child older than 14 but less than 16. Garcia-Barron filed a motion to suppress the statements he had made to Salcido. Garcia-Barron argued that because the State had failed to appoint an interpreter prior to questioning, his confession was involuntary and should be suppressed. Following an evidentiary hearing, tire district court ruled that Salcido “clearly meets tire qualifications [to be an interpreter] set out by tire statute” and “is qualified to act as an interpreter for this case.” The district court denied the motion to suppress, finding Garcia-Barron’s waiver of his Miranda rights and his confession to have been knowingly and voluntarily made. The State then dismissed the rape charge and Garcia-Barron was found guilty of aggravated indecent liberties with a child based upon stipulated facts. He was sentenced to a controlling term of 59 months in prison. Garcia-Barron now appeals. On appeal, Garcia-Barron reprises the arguments he made to the district court. He claims that the district court erred when it declined to suppress his confession to Salcido. Garcia-Barron argues that his statements were not voluntarily and knowingly made because: (1) Salcido was not an appointed interpreter pursuant to K.S.A. 75-4351 et seq.; (2) Salcido was not statutorily qualified to be an interpreter because he had an interest in the outcome of the interview; and (3) Salcido made revealing the reason for the interrogation contingent on Garcia-Barron signing the Miranda waiver. On review, we engage in a two-step analysis of a denial of a defendant’s motion to suppress evidence. “Without reweighing the evidence, the appellate court reviews the district court’s findings to determine whether they are supported by substantial competent evidence. The appellate court then reviews the ultimate legal conclusion regarding the suppression of evidence using a de novo standard.” State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). Garcia-Barron frames the bulk of his argument on appeal around the State’s alleged violation of K.S.A. 75-4351, which Garcia-Barron claims required the State to appoint an interpreter for him. Indeed, this is the prism through which the district court analyzed Garcia-Barron’s motion to suppress. Kansas law requires the appointment of interpreters for non-English speakers at various points in the criminal justice process, including prior to any interrogation by law enforcement. See K.S.A. 75-435l(e) (“A qualified interpreter shall be appointed ...(e) prior to any attempt to interrogate or take a statement from a person who is arrested for an alleged violation of a criminal law of the state.”). Interpreters must meet specific criteria in order to be qualified to serve. See K.S.A. 75-4353. The failure to appoint an interpreter during a police interrogation does not, however, necessarily render a confession involuntary. “The purpose behind K.S.A. 75-4351(e) is to ensure that there is clear communication between one who is in custody and the officers who are questioning him. The statute does not state a rule of evidence. Whether or not an interpreter is appointed and is present at the taking of the statement, the trial court must still determine whether an in-custody statement was freely, voluntarily and knowingly given, with knowledge of the Miranda rights. That determination must be based upon tire totality of the circumstances.” State v. Zuniga, 237 Kan. 788, 791-92, 703 P.2d 805 (1985). In Zuniga, despite the State’s failure to appoint an interpreter under the statute, the Kansas Supreme Court found Zuniga’s confession was voluntarily given under the totality of the circumstances. 237 Kan. at 791-92; see State v. Nguyen, 281 Kan. 702, 723, 133 P.3d 1259 (2006). Whether a confession is voluntary is a question of law over which we exercise unlimited review. 281 Kan. 702 Syl. ¶ 15- As a preliminary matter, we must determine whether Salcido was acting as an interpreter pursuant to K.S.A. 75-4351 et seq. Statutory interpretation involves questions of law over which we exercise unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). Because the word “interpreter” is not defined in K.S.A. 75-4351 et seq., we must give die word its ordinary meaning. See Roda v. Williams, 195 Kan. 507, Syl. ¶ 3, 407 P.2d 471 (1965) (words in common use contained within a statute are to be given their natural and ordinary meaning); see also Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 62 L. Ed. 2d 199 (1979) (words not defined in a statute should be given ordinaiy or common meaning). The common and ordinary meaning of “interpreter” is a “person who translates, esp. orally, from one language to another; esp., a person who is sworn at a trial to accurately translate the testimony of a witness who is deaf or who speaks a foreign language.” Black’s Law Dictionaiy 895 (9di ed. 2009). Another dictionaiy defines an “interpreter” as one who “translates orally for parties conversing in different tongues.” Webster’s Third New International Dictionaiy Unabridged 1182 (1993). Finally, “interpreter” can simply mean a person “who translates orally from one language to anodier.” American Heritage Dictionary 917 (5tii ed. 2011). These definitions are consistent with the statutory context. For example, in order to qualify as an interpreter under Kansas law, a person must be able to “accurately repeat and translate the statement” of the non-English speaker. K.S.A. 75-4353(b). Similarly, the statute describes an interpreter as a “conduit” whose duty is to “relay a communication between a person who can speak English and a person whose primary language is one other tiran English.” K.S.A. 75-4354(b). Because Salcido and Garcia-Barron were the only two people involved in their conversation, it is logically impossible for Salcido to have been acting as an interpreter. He was not a conduit for communication between Garcia-Barron and a third person and he was not translating words from one language to another. In fact, excepting the specific language employed (Spanish as opposed to English), there was no material difference between this interro gation and thousands of others that occur between law enforcement officers and suspects. Salcido was conducting the interview directly with Garcia-Barron in a language they both understood well. Salcido was born into a Spanish speaking family and spoke the language exclusively until age 9. He was himself an immigrant from Mexico and was knowledgeable regarding cultural factors that can create nuances of meaning in that language. Additionally, Sal-cido has a bachelor s degree in Spanish. Salcido did not have to be appointed as a qualified interpreter pursuant to K.S.A. 75-4351 before he could interrogate Garcia-Barron. Because we find that Salcido was not acting as an interpreter, we need not address Garcia-Barron’s contention that Salcido was not statutorily qualified to serve as an interpreter. This conclusion leaves unanswered whether Garcia-Barron was entitled to have an interpreter appointed for his benefit prior to the interrogation. For purposes of our analysis, we will assume that he was entitled to have a qualified third-party interpreter present. See K.S.A. 75-4351(e). As seen above, however, the State’s failure to comply with the requirements of K.S.A. 75-4351(e), standing alone, does not necessarily render the defendant’s statements involuntary. We must still determine whether Garcia-Barron’s “statement was freely, voluntarily and knowingly given, with knowledge of [his] Miranda rights. That determination must be based upon the totality of the circumstances.” Zuniga, 237 Kan. at 791-92. Upon review of the record, we are satisfied that there is ample substantial evidence to support the district court’s finding that Garcia-Barron’s statements were knowingly and voluntarily made after a full waiver of his Miranda rights. “When a defendant claims his or her confession was not voluntary, the prosecution has the burden of proving by a preponderance of the evidence that it was voluntary. The essential inquiry is whether the statement was the product of an accused’s free and independent will. The court looks at the totality of the circumstances surrounding the confession and determines its voluntariness by considering the following nonexclusive factors: (1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language.” State v. Stone, 291 Kan. 13, Syl. ¶ 8, 237 P.3d 1229 (2010). The interview itself was short, lasting only 10 minutes from the Miranda waiver to the end of the interview. Garcia-Barron was not handcuffed. He did not ask for anything or give any indication of discomfort or duress. Salcido clearly took Garcia-Barron through the Miranda waiver line by line, informing him of his right to remain silent, his right to an attorney, and that he could stop tire questioning at any moment. Salcido described the defendant as easy to talk to, calling Garcia-Barron “one of the nicest [suspects] I have ever dealt with.” While Garcia-Barron did not understand English and was from a different culture, Salcido’s fluency with the language and culture bridged any potential gaps. There is no evidence in the record that Garcia-Barron was unable to understand Salcido or communicate fluently with him. Garcia-Barron argues that Salcido’s refusal to tell Garcia-Barron the reason for the interview until after a Miranda waiver was signed rendered his waiver involuntary. The United States Supreme Court has directly addressed this argument holding that “a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.” Colorado v. Spring, 479 U.S. 564, 577, 107 S. Ct. 851, 93 L. Ed. 2d 954 (1987). This court has previously applied Spring, affirming the denial of a motion to suppress when the defendant’s sole claim was that he was not informed of tire reason for arrest before his Miranda waiver. State v. Stout, No. 99, 608, 2009 WL 1499160, at *6 (Kan. App. 2009) (unpublished opinion). The failure of police to inform Garcia-Barron of the reason for the investigation until after the Miranda waiver was signed did not render Garcia-Barron’s waiver involuntary. “K.S.A. 75-4351 and tire sections that follow it... do not contain any sanctions for violations thereof.” Zuniga, 237 Kan. at 791. Therefore, even if tire State failed to appoint a qualified interpreter as Garcia-Barron claims, suppression of his confession is not available as a remedy when that confession was otherwise properly ob tained. In this case, it was properly obtained. Despite the fact that the district court ruled that Salcido was a qualified interpreter pursuant to K.S.A. 75-4351 et seq., we can and do affirm the district court’s denial of Garcia-Barron’s motion to suppress as being right for the wrong reason. See Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005). There is substantial evidence in the record to support the district court’s conclusion that Garcia-Barron’s confession was freely, knowingly, and voluntarily made after a valid waiver of his Miranda rights. Affirmed.	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Bruns, P.: Robert E. and R. Gay Barker (Barkers) appeal from the decision of the Court of Tax Appeals (COTA) entering summary judgment against them and in favor of Neosho County (County) on the Barkers’ 2011 tax protest appeal. Robert Barker leased an oil and gas interest on land owned by his parents in 1983, and his parents retained a ¾6⅛ royalty interest from the oil and gas that Robert produced. When Robert’s mother died in 2009, the land passed to the Barkers as joint tenants by a transfer on death deed. However, the County continued to impose separate taxes on the royalty interest and working interest. The Barkers protested the County’s tax valuation for 2011, and COTA affirmed the County’s decision, finding that the lease and royalty interests remained in existence because the lease was Robert Barker’s individually while the royalty was the Barkers’ as joint tenants. The Barkers argue that COTA erred in holding that the doctrine of merger did not work to combine their interests in the property after Estelle Barker’s death. We hold that the oil and gas lease executed in 1983 no longer served a purpose and was terminated by operation of law upon tire death of Robert’s mother in 2009. Because of this finding, we do not need to reach the merits of the Barkers’ second issue. We, therefore, reverse COTA’s decision and remand for entry of summary judgment in favor of the Barkers. Facts The relevant facts are undisputed. In 1983, Gordon and Estelle Barker granted an oil and gas lease to their son, Robert Barker, on a piece of land they owned in Neosho County. Gordon and Estelle Barker reserved a ¾6& royalty interest in the gross proceeds from the lease. Gordon Barker predeceased Estelle Barker, who passed away on January 6,2009. At that time, the Barkers, as joint tenants, received Estelle Barkers ownership in the property at issue through a transfer on death deed. In December 2011, Robert Barker paid the 2011 taxes on both the working interest and royalty interest under protest, raising two arguments: (1) that the value should have followed a decline rate established in a prior year, and (2) that there was, in fact, no royalty interest. As part of the documents in support of protest, the Barkers attached a 2010 royalty interest tax statement, which the County had mailed to Estelle Barker. The County Appraiser (Appraiser) held a hearing on April 4, 2012. According to the Appraiser s notes, the Appraiser and Robert Barker settled on the decline issue after their discussions. The Appraiser, however, did not “feel qualified to make the decision to remove the ‘royalty’ portion of [Robert Barker’s] tax bill and felt that this needed to be a COTA decision since [the Appraiser] couldn’t find any precedents allowing the valuation of a lease with only a ‘working’ interest value.” The Barkers filed a protest appeal with COTA. Eventually, the Barkers filed a motion for summary judgment and a memorandum in support of their motion in which the Barkers argued that tire interest Robert owned prior to Estelle’s death merged with the interest the Barkers obtained upon her death and should be taxed as such. After the County filed its response and the Barkers filed a reply, the parties entered into a stipulation of facts in which they agreed on tax values if the property was classified as a ¾6⅛ royalty interest and 13/i6th working interest or a 100% working interest. On June 17, 2013, COTA entered its order denying the Barkers’ motion for summary judgment and entering judgment in favor of the County. Subsequently, the Barkers filed a petition for reconsideration, which COTA denied. Thereafter, the Barkers timely filed a petition for judicial review with this court. Analysis Issue Presented On appeal, the Barkers contend that COTA erred by failing to apply the doctrine of merger in this action. Specifically, the Barkers contend that an oil and gas lease executed by Robert and his parents in 1983 was terminated in 2009 when the Barkers became the owners — as joint tenants — of the land that was burdened by the leasehold. We also note that COTA entered judgment as a matter of law on behalf of the County even though only the Barkers moved for summary judgment. Although we question this procedure, the Barkers have not raised tire issue on appeal. Hence, we will not address it in this opinion. Standard of Review The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 etseq., controls our review of COTA’s decision. Under the KJRA, the burden of proving the invalidity of COTA’s action rests on the party asserting invalidity. K.S.A. 2013 Supp. 77-621(a)(l). Although judicial review is limited by the KJRA, COTA determined that the facts were undisputed and that the issue presented only a matter of law. Accordingly, our review of COTA’s decision is unlimited. See K.S.A. 2013 Supp. 77-621(c)(4); In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1043, 271 P.3d 732 (2012); In re Tax Appeals of EOG Resources, Inc., 46 Kan. App. 2d 821, 825, 265 P.3d 1207 (2011), rev. denied 296 Kan. 1130 (2013). Nature of Oil and Gas Lease In Kansas, “an oil and gas lease conveys a license to explore, or a ‘ “profit prendre.” ’ ” Farrar v. Mobil Oil Corp., 43 Kan. App. 2d 871, 883, 234 P.3d 19 (citing State, ex rel. v. Board of Regents, 176 Kan. 179, 190, 269 P.2d 425 [1954]), rev. denied 291 Kan. 910 (2010); see also Restatement (Third) of Property: Servitudes § 1.2 (1998). Like other easements, a profit a prendre — often simply referred to as a “profit” — is an incorporeal hereditament or an intangible right in the land. See Utica Nat’l Bank & Trust Co. v. Marney, 233 Kan. 432, 433-34, 661 P.2d 1246 (1983). While easements generally allow one to go onto land owned by another per son, a profit allows one not only to go onto the land of another but also to take some product from the land. See Burden v. Gypsy Oil Co., 141 Kan. 147, 150, 40 P.2d 463 (1935) (“A profit a prendre is the right to take soil, gravel, minerals and the like from the lands of another . . . .”). Specifically, an oil and gas lease “conveys a license to enter upon the land [owned by another] and explore for such minerals and if they are discovered to produce and sever them.” Ingram v. Ingram, 214 Kan. 415, 418, 521 P.2d 254 (1974). In Kansas, oil and gas leasehold “interests constitute personal property except in those specific instances when that classification is changed by statute for a specific purpose.” Utica Nat’l Bank & Trust Co., 233 Kan. at 435. “For the purposes of valuation and taxation in Kansas, all oil and gas leases and wells are considered personal property. K.S.A. 79-329.” Helmerich & Payne, Inc. v. Board of Seward County Comm’rs, 34 Kan. App. 2d 53, 55, 115 P.3d 149, rev. denied 280 Kan. 982 (2005); see In re Tax Appeals of EOG Resources, Inc., 46 Kan. App. 2d at 825. The Doctrine of Merger The Kansas cases cited by COTA and the parties regarding merger are not particularly helpful. While they stand for the general proposition that where a greater and lesser estate coincide, the lesser estate merges into the greater estate, the cases deal with real estate rather than easements or profits. Under the facts of this case, we find the Restatement of Property — which both the Kansas Supreme Court and this court have turned to for guidance on multiple occasions — to be more instructive. See Hamel v. Hamel, 296 Kan. 1060, 1068, 1075, 299 P.3d 278 (2013) (citing both the Second and Third Restatements of Property); Rucker v. DeLay, 295 Kan. 826, 831, 289 P.3d 1166 (2012) (citing Restatement [Third] of Property); U.S. Bank NA v. McConnell, 48 Kan. App. 2d 892; 901, 305 P.3d 1 (citing Restatement [Third] of Property), rev. denied 298 Kan. 1208 (2013). Likewise, in City of Arkansas City v. Bruton, 284 Kan. 815, 831, 166 P.3d 992 (2007), our Supreme Court expressly recognized that the Restatement (Third) of Property addresses the law of servitudes.. A servitude includes both an easement and a profit. Restatement (Third) of Property: Servitudes § 1.1. Actually, a profit is simply an easement that grants a person additional rights — the right “to take” from the land. As the official comment to the Restatement (Third) of Property explains: “Profits are easements (rights to enter and use land in the possession of another) plus the right to remove something from the land. . . . Generally, the rules governing creation, interpretation, transfer, and termination of easements and profits are the same in American law.” Restatement (Third) of Property: Servitudes § 1.2, comment e. Although a servitude may be terminated by agreement of the parties, it also maybe terminated by operation of law. Restatement (Third) of Property: Servitudes § 7.1 (1998). Restatement (Third) of Property: Servitudes § 7.5 specifically provides that “[a] servitude is terminated when all the benefits and burdens come into a single ownership.” (Emphasis added.) As the reporter’s note to Restatement (Third) of Property: Servitudes § 7.5 states: “The rule stated in this section is generally accepted and is similar to that stated in the Restatement [(First)] of Property §§ 497-499 and § 555.” See Restatement (First) of Property § 497 (1944) (“An easement appurtenant is extinguished by unity of ownership of estates in the dominant and servient tenements . . . .”). The official comment to the Restatement (Third) of Property explains: “A servitude benefit is the right to use tire land of another or the right to receive the performance of an obligation on the part of another. A servitude burden is an obligation not to interfere with another’s use of the burdened party’s land .... When the burdens and benefits are united in a single person, or group of persons, the servitude ceases to serve any function. Because no one else has an interest in enforcing the servitude, the servitude terminates. The previously burdened property is freed of the servitude.” (Emphasis added.) Restatement (Third) of Property: Servitudes § 7.5, comment a. In other words, when the burdens and benefits are united through common ownership in either a single person or a group of persons, an easement or profit ceases to have any function. This is because as a general rule a landowner does not need a license or permission to use his or her own property. See Van Sandt v. Royster, 148 Kan. 495, 499, 83 P.2d 698 (1938) (stating that a landowner cannot have an easement in his own land). Accordingly, in such instances, an easement or profit terminates by operation of law. We find the legal principle set forth in Restatement (Third) of Property: Servitudes § 7.5 to be consistent with Kansas law. In Johnston v. City of Kingman, 141 Kan. 131, Syl., 39 P.2d 924 (1935), our Supreme Court held that “no man can acquire an easement in his own lands.” See also Ferguson v. Ferguson, 106 Kan. 823, 825, 189 P. 925 (1920) (“[A]ll the uses which an easement might supply were then embraced in [a] general proprietorship.”). A few years later, in Van Sandt, 148 Kan. at 499, it was held that “[a]s an easement is an interest which a person has in land in the possession of another, it necessarily follows that an owner cannot have an easement in his own land.” (Emphasis added.) See Chinn v. Strait, 173 Kan. 625, 631, 250 P.2d 806 (1952). More recently, in Dameron v. Kelsay, No. 96,462, 2007 WL 2580598, at 7-8 (Kan. App. 2007) (unpublished opinion), this court held that a person who jointly owned land could not acquire an easement in her own property. Likewise, in Stroda v. Joice Holdings, 288 Kan. 718, 719, 207 P.3d 223 (2009), our Supreme Court noted a district court’s ruling that an easement was extinguished by the doctrine of merger. Thus, we conclude that the doctrine of merger is applicable to oil and gas leases just as it is to other ser-vitudes, including easements or profits. Application of the Doctrine of Merger We now turn to the question of whether the doctrine of merger should have been applied in the present case. COTA found that there was no evidence that a properly recorded instrument terminated either interest. Certainly, the Barkers — as joint tenants— could have simply executed and filed a document terminating the oil and gas lease by agreement after Robert’s mother died. See Restatement (Third) of Property: Servitudes § 7.1. Perhaps they have now done so, which would eliminate the potential of this issue being raised again in the future. But at the time this action was pending before COTA, it appears that no such instrument had been recorded. Accordingly, we must determine whether the oil and gas lease temiinated by operation of law. It is important to recognize that joint tenancy requires four unities — interest, title, time, and possession. Simonich, Executrix v. Wilt, 197 Kan. 417, 421, 417 P.2d 139 (1966). Here, the County agrees that Robert and Gay are the joint tenants of the subject property. As such, it is undisputed that all four unities are present — Robert and Gay each share the same ownership interest in the property, they each took title to the property under the “Transfer on Death Deed” executed by Robert’s mother in 2002, their interest commenced upon the death of Robert’s mother in 2009, and they both are in possession of the whole estate. Thus, by definition there is a joint tenancy with a unity in the ownership of the entire property. It is undisputed that Robert and Gay Barker jointly became the owners of the property that is the subject of the oil and gas lease upon the death of Robert’s mother in 2009. As joint tenants, Robert and Gay do not have divided or fractional interests in the property. Rather, it is well settled that each of the joint tenants owns “ ‘the whole and every part, with the benefit of survivorship, unless the tenancy be severed.’ ” (Emphasis added.) Simons v. McLain, 51 Kan. 153, 159, 32 P. 919 (1893); see also Restatement (Second) of Property: Donative Transfers § 30.1, comment q (1987) (“each joint tenant. . . was seised of the whole”); Restatement (First) of Property § 29, comment e (1936) (“each joint tenant was historically regarded as having an estate in fee simple absolute in all the land in which the joint tenancy exists”). In the present case, there is no allegation that the joint tenancy has been severed. In Dameron, 2007 WL 2580598, at 7, this court recognized the continued viability of the rule set forth in Simons. Specifically, our court found that “every joint tenant owns an undivided whole of the jointly owned property and the joint tenant does not own a share or a fractional part of jointly owned property. Joint means oneness and [the joint tenants] constitute one person . . . .” (Emphasis added.) As joint tenants, Robert and Gay constitute one person. Because Robert owns the whole and every part of the land, he does not need a license to enter his own property to explore, discover, or remove oil and gas. Thus, we conclude that the oil and gas lease executed in 1983 no longer served a purpose and was terminated by operation of law. Cases from Other Jurisdictions We do not believe it is necessaiy to turn to cases from other jurisdictions, but we will briefly discuss the Alabama Court of Appeal's opinion in Clayton v. Clayton, 75 So. 3d 649 (Ala. Civ. App. 2011), cert. denied No. 1100716 (Ala. August 5, 2011). While the Barkers argue that the majority opinion in Clayton is instructive to the application of the doctrine of merger to joint tenancy, COTA found that the dissent in that case “is most consistent with Kansas law.” Although we find the facts of the Clayton case to be distinguishable from the present case, we find the legal principles set forth in the majority opinion to be more consistent with both Kansas law and tire Restatement (Third) of Property than those stated in the dissent. The facts in the Clayton case are substantially different from those in our case, and we will not set them forth in detail. Briefly, the Clayton case involved a son who inherited — as a joint tenant with his son — real property from his mother that had previously been leased to him. Prior to his mother’s death, tire son had subleased the mining rights to a third party. Following the mother’s death, the grandson successfully petitioned to receive half of tire royalties under the sublease with tire mining company. In ruling in favor of the grandson, the majority concluded that the previous lease between the mother and son had merged into the son’s ownership of the property as a joint tenant upon her death. 75 So. 3d at 653-54. In reaching this conclusion, the majority in Clayton found as a matter of law that “ ‘[in] a joint tenancy each tenant. . . owns the whole.’ ” 75 So. 3d at 653. Certainly, this statement is consistent with Kansas law and the Restatement (Third) of Property. Likewise, the majority noted “ The general rule of law . . . that when a greater and less, or a legal and equitable estate, meet and coincide in the same person, they are merged, tire one drowned in the other.’ ” 75 So. 3d at 653. This statement is also consistent with Kansas law and the Restatement (Third) of Property. The majority then quoted an Alabama Supreme Court opinion for the proposition that “ ‘[tjhere can be no greater absurdity, than to place [a person] in the relation of being his own landlord, and his own tenant, at one and the same time; bound himself to pay, and to receive rent.’ ” 75 So. 3d at 653 (quoting Otis v. McMillan & Sons, 70 Ala. 46, 59 [1881]). Even though we can imagine greater absurdities, the proposition is also illogical under Kansas law and the Restatement (Third) of Property. On the other hand, as the majority correctly pointed out, the dissent in Clayton appears to discount — if not ignore — the well-settled rule that a joint tenant owns an undivided interest in the whole property. See 75 So. 3d at 654. Moreover, the dissent takes the position that even if joint tenancy amounted to a unification of the freehold and leasehold estates, the doctrine of merger should not apply if it works as a disadvantage to the prior owner of one of the estates. 75 So. 3d at 659 (Moore, J., dissenting). This is probably true in Kansas as well. See Aguilera v. Corkill, 201 Kan. 33, 38, 439 P.2d 93 (1968) (“The doctrine of merger has its foundation in the convenience of the parties and should be determined from their intention.”). But in the present case, there is no suggestion that application of the doctrine of merger would defeat the intent of Robert’s mother or inconvenience Robert and Gay. In passing, we also note the opinion in Zanelli v. McGrath, 166 Cal. App. 4th 615, 82 Cal. Rptr. 3d 835 (2008). Similar to the present case and the majority opinion in Clayton, the California Court of Appeal concluded that the doctrine of merger can apply to cases involving joint tenancy. In reaching this conclusion, the California court correctly noted that Restatement (Third) of Property: Servitudes § 7.5, comment a, “expressly includes ‘a group of persons’ in its statement of the principle and rationale for extin-guishment by merger.” 166 Cal. App. 4th at 625. Thus, the California court held that joint tenancy — where more tiran one person owns the whole estate in fee simple, not merely a fractional share— “is exactly the ‘unity of title,’ or as we prefer, the ‘unity of ownership,” required for finding an easement extinguished by merger.” 166 Cal. App. 4th at 632. Conclusion In summary, we conclude that the oil and gas lease executed in 1983 no longer served a purpose and was terminated by operation of law upon the death of Robert’s mother in 2009. Although we recognize that applying the doctrine of merger often involves a question of fact, judgment as a matter of law is appropriate in this case because the parties do not dispute the facts. In light of our holding regarding the doctrine of merger, it is not necessary to reach the merits of the Barkers second issue of whether COTA deviated from a prescribed procedure set forth in the Oil and Gas Appraisal Guide. Reversed and remanded with directions to enter summary judgment as a matter of law for the Barkers.	[ 84, 104, -44, 44, 40, -32, 26, -117, 74, -94, -73, 95, 101, -54, 20, 41, -78, 69, 69, 111, -125, -77, 19, -125, 20, -5, -71, -35, -16, 77, -28, -43, 8, 112, -54, 85, 70, -77, 79, 84, 14, 2, 25, 108, -39, 6, 52, 107, 50, 30, 49, -121, -77, 42, 29, -61, 72, 46, 89, 61, 89, -16, -22, 20, 95, 22, -127, 101, -112, -61, -56, 75, -112, 17, 16, -24, 115, 54, -58, 100, 3, -67, -119, 38, 103, 3, 0, -49, 32, 24, 14, -46, 29, -91, -110, 120, 83, 75, -100, 30, 124, 86, 111, -12, -26, 5, 93, -52, -108, -114, -100, -125, -123, 109, -116, 83, -9, -121, 48, 113, -119, -82, 92, 71, 55, -97, 2, -80 ]
Bukaty, J.: The Alcoholic Beverage Control Division (ABC) of the Kansas Department of Revenue (KDOR) suspended the liquor license of Kite’s Bar and Grill (Kite’s) for 4-weekend days due to a minor obtaining or possessing alcohol on Kite’s premises. Kite’s appealed through the administrative process and then to the district court, which upheld the suspension. Kite’s appeals to this court arguing first that statutory law does not impose strict liability upon it in this civil action when a minor possesses alcohol while on its premises. Secondly, it argues the district court incorrectly found that substantial compliance by ABC was all that was necessary to give notice to Kite’s of the administrative action. We reverse, finding the applicable notice provisions of the Kansas Liquor Control Act (Act) specifically require ABC to deliver a citation to Kite’s at the time of the violation and, because ABC did not do so here, the citation it later mailed to Kite’s was unenforceable and void. That renders the first issue moot. Neil Ramsey, an officer with the Riley County Police Department, performed a routine bar check at Kite’s on the evening of December 18,2010. Inside the bar, he saw a young woman quickly set down a can of beer and walk around to sit when she saw the officer. Ramsey approached, and the woman provided a driver’s license that showed she was 19 years of age. Ramsey took the minor to a police station and issued her a citation for minor in possession. When he checked the beverage by pouring it out, the contents of the can were consistent with beer. Ramsey later returned to Kite’s and told an employee there about the incident and that a report would be filed. He did not remember the specific person he talked to, just that it was “tire manager.” Based upon those events, ABC issued a civil citation to Kite’s on January 13, 2011, for allowing a minor to possess alcohol on its premises. See K.S.A. 2013 Supp. 41-2615(a). Following an eviden-tiary administrative hearing, tíre director of ABC found Kite’s guilty of violating the statute and ordered Kite’s liquor license suspended for 4-weekend days. Kite’s filed a notice of appeal to KDOR pursuant to K.S.A. 41-321 and argued the same issues it raises in this appeal. KDOR upheld the ABC director’s ruling. Kite’s petitioned for judicial review to the district court which upheld the KDOR’s decision. We will first address Kite’s second issue that the district court erred in ruling that ABC substantially complied with statutory requirements in giving it notice of its citation. Kite’s alleges that ABC, KDOR, and the district court all improperly interpreted K.S.A. 41-106, which requires a citation be issued at the time of the violation and then a copy of that notice be mailed to the licensee within 30 days. ABC argues the district court and KDOR correctly interpreted the statute to allow for substantial compliance and that ABC substantially complied even when it failed to issue a citation at die time of the violation and only mailed notice of the citation within 30 days. We begin by setting forth the legal principles that make up our standard of review under the facts of this case. An appeal from an administrative agency’s final order is subject to judicial review under the Kansas Judicial Review Act (KJRA). K.S.A. 2013 Supp. 77-603(a). “The burden of proving the invalidity of the agency action is on the party asserting the invalidity.” K.S.A. 2013 Supp. 77-621(a). An appellate court may grant relief from an agency action if it determines that “the agency has erroneously interpreted or applied tiie law.” K.S.A. 2013 Supp. 77-621(c)(4). In reviewing the interpretation of the law, the appellate court gives no deference to the administrative agency’s inteipretation of the law. Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013). Statutory construction is an issue of law over which appellate courts have unlimited review. See Milano’s Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013). Regarding the inteipretation of a statute: “The fundamental rule of statutory interpretation to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. Its intent is to be derived in the first place from the words used. [Citation omitted.] When statutory language is plain and unambiguous, there is no need to resort to statutory construction. [Citation omitted.] An appeEate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there. [Citation omitted.]” Shrader v. Kansas Dept. of Revenue, 296 Kan. 3, 9-10, 290 P.3d 549 (2012). The portion of the Act at issue here requires: “Any citation issued for a violation of the liquor control act or the club and drinking establishment act shall be delivered to the person allegedly committing the violation at the time of the alleged violation. A copy of such citation also shall be delivered by United States mail to the licensee within 30 days of the alleged violation. If such citation and copy are not so delivered, the citation shall be void and unenforceable.” K.S.A. 41-106. This statute is plain and unambiguous. ABC admits so in its brief. It clearly requires both a citation be delivered to the person allegedly committing the violation at the time of the violation and a copy delivered by mail to the licensee within 30 days. The statute then more explicitly makes this point by requiring that if both the “citation and copy” are not delivered as required the citation is void. K.S.A. 41-106. As we stated, no one from ABC or the investigating officer issued a citation to anyone at the time of the alleged violation in this case, and no one ever complied with the explicit requirements of K.S.A. 41-106. ABC argues that we should interpret this provision of the Act to allow for substantial compliance with its requirements rather than strict adherence. Specifically, ABC asserts the Act is “remedial legislation” that should be liberally construed and viewed in consideration of the entire Act. It further argues it would be much more difficult to regulate alcohol if an ABC officer was required to issue a citation at the time of the event, rather than issue one later based upon a police report. It argues the legislature could not have intended such a situation. However, it does not provide any direct caselaw or statutory authority for its argument that the Act is either remedial or that the doctrine of substantial compliance should be applied to these notice requirements. ABC claims “[i]t is clear from a consideration of the entire act that the legislature intended ABC to take remedial action against a licensee who violates a provision of the act.” “[R]emedial legislation should be liberally construed to effectuate the purpose for which it was enacted.’ ” Smith v. Marshall, 225 Kan. 70, 75, 587 P.2d 320 (1978) (quoting Chief Judge Foth’s dissent in Smith v. Marshall, 2 Kan. App. 2d 213, 217, 577 P.2d 362 [1978]). We agree that courts should construe i-emedial legislation liberally, but we question whether the Act is remedial such that it requires liberal construction of its notice requirements. “ ‘Remedial laws or statutes’ are defined as ‘[l]egislation providing means or method whereby causes of action may be effectuated, wrongs redressed and relief obtained.’ ” Midwest Properties v. Harvey, 23 Kan. App. 2d 524, 526-27, 934 P.2d 154 (1997) (quoting Black’s Law Dictionary 1293 [6th ed. 1990]). The next edition of Black’s Law more succinctly defines a remedial law as: “1. A law providing a means to enforce rights or redress injuries. 2. A law passed to correct or modify an existing law esp., a law that gives a party a new or different remedy when the existing remedy, if any, is inadequate.” Black’s Law Dictionary 1296 (7th ed. 1999). The notice provisions of the Act do not appear to fall under this definition of a remedial law. Also, many Kansas statutes contain specific language that states the law should be construed as remedial. See K.S.A. 60-1713 dealing with declaratory judgments (“This act is remedial in nature and its purpose is to settle and provide relief from uncertainty and insecurity with respect to disputed rights, status and other legal relations and should be liberally construed and administered to achieve that purpose.”); K.S.A. 21-2506 dealing with identification and detection of crimes and criminals (“It is hereby declared that this act is for the public safety, peace and welfare of the state, is remedial in nature, shall be construed liberally, and in case any part thereof shall be declared unconstitutional it shall not in any way affect any other part hereof.”); see also K.S.A. 2013 Supp. 8-1001(v) dealing with the testing of vehicle drivers for drugs and alcohol (“This act is remedial law and shall be liberally construed to promote public health, safety and welfare.”). ABC does not cite to, and the Act does not appear to contain, any provision stating the law is remedial and should be construed in that manner. Had the legislature intended such, it could easily have provided for it. We decline ABC’s invitation to make such a statement of policy, and we leave such matters to the legislature. ABC also argues that enforcement of the provision would be absurd because it does not have the resources as an agency to enforce the Act if it requires its agents . to actually be present to witness the violations and issue civil citations at the time they occur. However, we are unaware of any reason why the inability (if such exists) of an office to regulate a large industry should be reason enough in itself to ignore explicit notice provisions of the Act, even when construing the purpose of the Act is to limit commerce in alcoholic liquor as provided for in K.S.A. 2013 Supp. 41-108. Nor does ABC cite us to any legal authority for the proposition. ABC appears to argue that because the purpose of the Act is to regulate the sale and distribution of alcohol, and to specifically prevent minors from consuming alcohol on premises such as Kite’s, we should find that substantial compliance with the notice requirements of the Act is sufficient to ignore the specific language of the statutory provision in issue here. However, both of the specific notice requirements of K.S.A. 41-106 appear to be more helpful in regulating commerce in alcoholic liquor and in prohibiting minors from consuming alcohol in bars and clubs rather than hindering its regulation. The issuance of a citation at the time of the violation gives immediate notice to the violator and/or the licensee that there has been in fact a violation of the law. It then affords the licensee an opportunity to immediately take corrective steps to fix the violation and thus more likely limit the continuation of any violations. The failure to issue a citation at the time of the violation could very possibly allow the violations to continue for as long as 30 days or until a violator receives a citation in the mail perhaps several weeks after it occurred. Even if substantial compliance is all that is necessary to notify a licensee, it is certainly not clear that it occurred under the facts here. Substantial compliance means “ ‘ “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” ’ ” Orr v. Heiman, 270 Kan. 109, 113, 12 P.3d 387 (2000). In this case, the officer told a “manager” only that there would be a report, making it unclear if a violation had occurred. The officer did not remember the specific person who was the manager, making it unclear then that the bar received any notice of a violation at all before receiving the citation in the mail. As we stated, if the reasonable objective of the statute is to put the violator on notice of a violation and notice to correct it, it is unclear that the officer s actions were enough in this case. In summary, the requirements of K.S.A. 41-106 that a citation be issued at the time of the violation and a copy mailed to the licensee within 30 days are explicit and unambiguous. ABC has not presented a compelling argument that can overcome the clear language of the statute. Nor has it provided any statutory or caselaw authority that allows substantial compliance to apply to the agency’s action in this case. As such, the statutory directive that “[i]f such citation and copy are not so delivered, the citation shall be void and unenforceable” applies and ABC’s citation to Kite’s for permitting a minor to consume alcohol was unenforceable. Our ruling on this issue then renders moot the issue of whether K.S.A. 2013 Supp. 41-2615 imposes strict liability on Kite’s to prohibit minors from possessing alcohol on its premises. Reversed.	[ -80, -30, -36, 76, 46, -32, 25, 20, 83, -41, -9, 83, -19, -64, 13, 107, -29, 111, 80, 121, -109, -74, 39, 64, -58, -13, -48, -43, -80, 111, 76, -12, 77, 112, 10, 93, 70, -53, -39, -36, -118, 4, 27, 81, 113, -125, -76, -21, 2, 10, -15, 15, -77, 45, 26, -61, -87, 76, 29, 45, -47, -16, -103, -107, 126, 82, -128, 28, -67, -121, -64, 57, -102, 49, 41, -24, 115, 32, 8, 116, 15, -101, -95, 39, 98, 32, 25, -29, -20, -84, 47, 127, -97, -89, -101, 88, 107, 8, -108, -100, 124, 18, 3, -4, -21, 5, -33, 124, -126, -54, -8, -79, -113, 37, -122, 23, -17, -89, 33, 69, -43, 45, 94, -12, 20, 27, -58, -107 ]
Arnold-Burger, J.: Samuel S. Imler was involved in a bar fight and, when the Topeka police officer arrived and arrested him, he refused medical treatment. However, the police officer took him to Stormont-Vail Hospital for treatment. He remained in custody until his release after posting bond the next day. Stormont-Vail Hospital and Cotton O’Neil Clinic (collectively, the Hospital) brought suit against Imler for his hospital care in the amount of $3,825.20. Imler did not dispute the amount of the bill; he simply argued that the Topeka Police Department should be responsible for it. After trial, the trial court found that Imler was responsible for the medical treatment provided. However, the trial court found, on its own motion, that the charge was not reasonable and reduced it to $2,000. In addition, the trial court further ordered Imler to make payments of $50 per month on the debt. The Hospital appeals the trial court’s order allowing Imler to pay a lesser amount and to pay it in $50 monthly installments. Because we find that the trial court lacked both the authority and the evidence to reduce the amount owed and direct the method of payment, we reverse its decision and order the case be remanded for entiy of judgment in favor of the Hospital for the full amount of $3,825.20. Factual and Procedural History On May 3, 2012, Imler had a couple of drinks with some friends at a bar. Before he left the bar, Imler had a third drink given to him by an acquaintance and then left the bar on his motorcycle. Imler testified that at the time he left the bar, he did not feel intoxicated at all. However, while driving, he began to feel impaired and stopped at a restaurant. Imler did not believe that his intoxication was due to alcohol but was from a substance that was put in his third drink at the bar by the person that gave him the drink. When he arrived at the restaurant, he ordered another drink and thought about calling his girlfriend. Imler testified that his last clear memory was looking at his drink. The next clear memory he had was being handcuffed in a police car. During the time he was incoherent, Imler deduced that he had been attacked at the restaurant; he fought back and ended up with lacerations on his face and a broken hand. The night of the altercation, Imler refused medical treatment. However, a Topeka police officer transported him to the Hospital against his wishes, apparently when the Shawnee County Jail refused to accept him. The Hospital performed a CT scan of Imler’s face and head, and performed an x-ray of his wrist, but Imler does not recall the tests being done. He was released from the Hospital into the custody of a Topeka police officer, who then took him to the Shawnee County Jail. After Imler was released from jail, he went to work, but his boss would not allow him to do any work because Imler’s hand was causing him pain. After he left work, Imler went to the hospital to have his hand treated. He paid for the treatment he received that day because he requested treatment.. The Hospital filed a petition requesting the district court to order Imler to pay for the charges for the ¡treatment .he received on the evening of May 3. Imler refused to pay because he believed that the Topeka Police Department should be responsible for the charges as he was in police custody at the time he received treatment. Linda Sherman, the Hospital’s manager of patient financial services, testified that Imler had signed an authorization for treatment form on the night he was treated after the altercation at the bar. The signed treatment form, which was admitted into evidence, indicates that the person signing agrees to pay for the charges for treatment. The Hospital then presented evidence of the cost of Imler’s treatment from the Hospital and from the treatment provided by the emergency room physician. These costs totaled $3,825.20; and testimony was presented that this was the standard normal charge for such services. Imler did not pay these charges, and his health insurance refused to pay for the charges. The Hospital contacted the Shawnee County Jail for payment, but it was denied. It is unclear whether the Topeka Police Department was ever contacted by either the Hospital or Imler to pay for the treatment. Imler initially agreed to pay the charges at the rate of $120 per month, but he later cancelled the payment plan. The trial judge then questioned Sherman about what an insurance company would have paid, and she indicated that Blue Cross and Blue Shield would have paid “probably 60 percent” of both the Hospital charges and the emergency room physician charges. Sherman started to explain the reason for such reduced-rate contracts, including the fact that part of the agreement is payment in full be made within 30 days, but she was not asked to expand. The trial court found, sua sponte, that the charges for the medical expenses were unreasonable and ordered Imler to pay $2,000. The judge stated: “Now, the law is pretty clear that even if — you know, if you take the benefit of this, these services, you owe a reasonable cost. I do know that Stormont-Vail would be willing to take less with — if you had insurance. I think you’ve gotten — I personally think you have land of a raw deal with your insurance company. I’m sorry about that, but I can’t control that. But I am going to order that you’re responsible for $2,000 in the medical expenses, which is a just a very rough estimation of the 60 percent.” The judge then inquired regarding his ability to pay and asked Imler how much he could pay. When he responded “$50 a month,” the judge ordered he pay that amount. The attorney for the Hospital objected and noted that the Hospital had not agreed to a reduced amount and argued that the court had no authority to reduce the amount proven and had no authority to order the Hospital to accept reduced payments. The judge was unwavering. The Hospital now appeals the decision. Imler does not cross-appeal tire decision holding him responsible for the hospital bill. Analysis The trial court erred when it sua sponte reduced the amount Imler owed the Hospital. On its own motion, the trial court found that the $3,825.20 in medical expenses was unreasonable and reduced that amount to $2,000. The Hospital argues that the trial court lacked the authority or the evidentiary support to find the medical costs unreasonable and to reduce them to $2,000. We agree. Appellate courts have de novo review of cases decided on the basis of documents and stipulated facts. Rucker v. DeLay, 295 Kan. 826, 830, 289 P.3d 1166 (2012). In this case, the damages were undisputed. At trial, the Hospital presented evidence of the cost of Imler’s treatment. These costs totaled $3,825.20; and testimony was presented that this was the standard and normal charge for such services. Imler did not contest the amount or its reasonableness. Instead, of its own volition, the trial court questioned Sherman about what an insurance company would have paid and she indicated that Blue Cross and Blue Shield would have paid “probably 60 percent” of both the Hospital charges and the emergency room physician charges. However, this reduction was based on a contract and was required to be paid within 30 days, thus recognizing the “burden of collection.” The trial court then drew the conclusion, sua sponte, that the $3,825.20 in medical expenses was unreasonable and reduced that amount to $2,000,, or 52% of the total owed. ■ .= ¡ Imler neither raised the issue as to whether the medical costs were reasonable, nor did he request that the costs be reduced. Imler’s defense for not paying the medical costs incurred on May 3 was that he believed that tire Topeka Police Department should be responsible for the charges as he was in police custody at the time he received treatment. The trial court’s decision was clearly not based on substantial competent evidence. Substantial competent evidence is that which is both relevant and substantial and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Venters v. Sellers, 293 Kan. 87, 93, 261 P.3d 538 (2011). There was absolutely no evidence presented at trial that the medical costs were unreasonable. Moreover, there was no evidence to support the trial court’s final amount of $2,000. It appears to be an arbitrary amount based upon “a very rough estimation of the 60 percent” that an insurance company, under contract with the Hospital, would have paid. Accordingly, we find the trial court erred in reducing the amount owed to $2,000. The trial court erred when it ordered the hospital to accept $50 monthly installments from Imler in order to pay off the judgment. The trial court ordered Imler to pay the Hospital $50 per month. The Hospital asserts that the trial court lacked the statutory authority to order the Hospital to accept such a payment plan from Imler. We agree. At no point during the trial did Imler raise any question pertaining to a payment plan. The trial court raised this issue without either party seeking a decision on how the judgment award would be paid by Imler. Moreover, as the Hospital suggests, its collection rights under K.S.A. 2013 Supp. 61-3504 (garnishment) and K.S.A. 2013 Supp. 61-3604 (hearing in aid of execution) have been hampered by the trial court’s order. Under K.S.A. 2013 Supp. 61-3504(a), a judgment creditor may obtain a garnishment order any time after 14 days following the judgment. Under the facts of this case, the Hospital would not be allowed to obtain a garnishment as provided by K.S.A. 2013 Supp. 61-3504 until Imler failed to make a monthly payment. In this case neither party requested a payment plan. The judge simply asked Imler what he could afford to pay on a monthly basis and ordered Imler’s response of $50 a month as the monthly payment. There was absolutely no evidence to support such a decision. Accordingly, the trial court erred when it ordered the medical costs of $2,000 to be paid in $50 monthly installments. Reversed and remanded with directions to enter judgment in favor of the Hospital for $3,825.20.	[ -48, -22, -87, -18, 27, 96, 14, 2, 65, -125, 119, 83, -21, -63, 5, 35, -32, 119, 97, 113, 95, -73, 71, 105, -62, -109, -79, 65, -77, -17, -28, -11, 15, 104, -125, 93, 34, 73, -23, -48, -118, 4, -87, -15, 80, -125, 48, 121, 68, 3, 49, 14, -61, 46, 16, -1, -83, 44, 123, -71, -8, -14, -63, 5, -53, 80, -128, 34, -99, 71, -40, 62, -105, 49, 104, -88, 114, -74, -126, 116, 71, -115, -123, 98, 34, 52, 77, -19, 96, -83, 45, 13, -97, -121, -101, 89, 67, 8, -74, -99, 117, 28, -113, -8, -8, 29, 93, -84, -122, -38, -106, -77, -1, 52, -42, -10, -17, 23, 100, 113, -49, -12, 94, -43, -5, -101, -72, -41 ]
The opinion of the court was delivered by Brewer, J.: This was an action in replevin, brought in a justice’s court by Livings against Lauer, for the possession of a horse. Lauer answered, setting up in defense that he took up said horse on his inclosed premises in the night-time, in Powhattan township, Brown county, Kansas, while trespassing on his growing crops, under the provisions of the night herd law, (Gen. Stat., ch. 105, art. 1,) and that the night herd law was legally in force in said Powhattan township at said time, and claimed a lien upon said horse for his damages. Judgment for Livings, from which Lauer appealed to the district court, where a trial was had before a jury. No new pleadings were filed. After the testimony was all in, the court, on its own motion, found as a matter of law, from the evidence, that the night herd law was legally in force in said-Powhattan township at the time said horse was taken up by Lauer, that the same was trespassing upon Lauer’s premises in the night-time of August 17, 1879, and was taken up by him upon his premises in said Powhattan township, Brown county, Kansas, while so trespassing on the same in the night-time of August 17, 1879, and that Lauer had a lien upon said horse by virtue of the night herd law for his damages done by said horse while so trespassing upon Lauer’s premises. The court then announced that it would send no issue in the case to the jury, except the question as to the amount of Lauer’s said damages, which the court then (plaintiff and defendant consenting as to the amount) found from the evidence to be the sum of $1.50. The court was then about to direct the jury to find a verdict for Lauer, finding the right of possession of said horse to have been in Lauer at the commencement of said action, and finding the amount of his recovery for his damages by reason of the trespass of said horse on his premises in violation of the night herd law to be the sum of $1.50, and that he had a lien upon said horse until the same was paid, when Livings filed his motion as follows (title omitted): “Now comes the said plaintiff, and brings here into open court $1.50 as the amount of damages, which the court finds, without exception by either party as to the amount, the full damages done to defendant’s corn by plaintiff’s horse, and moves, at the close of the evidence, judgment and verdict in favor of plaintiff for the said horse, and for costs of suit. ■ “By Jas. Falloon, Att’y for Pl’ff.” Lauer also at the same time filed his motion as follows (title omitted): “Now comes the said defendant, and moves the court to direct the jury to find a verdict in favor of the defendant, finding the right of possession of the horse in dispute at the-commencement of this action to have been in the defendant, and that his damages for the trespass done by said horse to-the defendant’s corn was the sum of $1.50. “Killey & May, Att’ysfor Deft.” The court sustained Livings’s motion, and overruled that of Lauer; whereupon the jury, under the direction and instructions of the court, returned the following verdict (title-■ omitted): “ We, the jury impanneled and sworn to try the above cause, do on our oaths find the right of property and the right of possession thereof at the commencement of this suit to be in the plaintiff, and assess the amount of his recovery by reason of the unlawful detention thereof at the sum of $ —. “John Sherrett, Foreman.” Lauer then filed his several motions: For a new trial, for a judgment in his favor non obstante veredicto, and to retax the costs and tax all the costs against Livings — all of which the court overruled, Lauer duly excepting. Thereupon the court rendered judgment in favor of Livings for the costs in the action. From this judgment, Lauer brings error to this court. The first question in this case is, as to the sufficiency of the record. This is a bill of exceptions, which contains not merely the testimony, and those matters not of themselves part of the record, but also the pleadings, orders, and, indeed, the entire proceedings in the case. That this is irregular, is clear. As has been often said, the functions of a bill of exceptions are simply to bring upon the record those matters not otherwise belonging to it. It is not like a case-made. It is improper to incorporate into it the pleadings, journal entries, etc. Upon authority of Whitney v. Harris, 21 Kas. 96, it is urged that the judgment must be affirmed, because this bill of exceptions does not of itself present enough of the ease for any inquiry into the alleged errors. If the certificate of the clerk were here, as in that case, simply that this is a copy of the bill of exceptions, that decision would be decisive of the question. But the clerk’s certificate, besides stating that this is a copy of the bill of exceptions, goes on to state that it contains full, true and correct copies of the pleadings, orders, etc., as the same appear respectively on file or of record in his office. In other words, he does not simply certify that the proceedings, orders, etc., are correct copies from those in the original bill of exceptions, but also that they are correct copies of the original papers and records. In this respect, his certificate is as full and perfect as the ordinary certificate to a record of the case. The argument in Whitney v. Harris, supra, was that the certificate only showed that the papers were copies of copies; here it shows that they are correct copies of the originals. Substantially, then, the whole record is fully and correctly authenticated, and while it is irregularly prepared, yet the irregularity is not such as avoids the force of the authentication. Hence we conclude that the challenge of the record must be overruled. The case of Smith v. Woodleaf, 21 Kas. 719, is conclusive that the ruling of the court upon the effect of the tender was erroneous. The defendant by his lien had the right of possession, and a tender of the amount of this lien would not of itself destroy the right of possession. The tender should have included the costs. A party who rightfully asserts his lien cannot, after costs have accrued, be mulcted in those costs by a mere discharge of the lien. To obviate the force of this, it is contended that the night herd law is no ‘longer in force, and that even if it be, the order of the commissioners in this case was void, and therefore that there was, in fact, no lien. It is not pretended that this law has been in terms repealed, and it was declared valid and constitutional in the case of Noffzigger v. McAllister, 12 Kas. 315; but the contention is that it was repealed by implication by the subsequent general herd law, a law adjudged valid in the case of Keyes v. Snyder, 15 Kas. 145. We do not think this the effect of the subsequent law. Repeals by implication are not favored. If both statutes can have force, both remain. Now there is room for the operation of both statutes, and there is no inconsistency between them. The former authorizes the commissioners to prohibit the running at large of certain animals in the night-time in such townships as suitably petition for the order; the latter to prohibit the running at large at all times in the entire county. The former gives power to the commissioners only upon the proper petition from the township; the latter gives both the power and election to the commissioners. The former operates only upon a particular township, and in the night-time. The latter must coiitrol the entire county, and be operative both in the day and night. The former may be in force but a part of the year; the latter must be in force all the time. Obviously there is room for the operation of both statutes, and therefore the former is not repealed by the latter. One statute may be in force in one county, and the other in another. It is also objected that the order of the eommis.sioners is void, as in excess of their powers. The statute provides that upon petition, the commissioners shall order that certain animals be “confined in the night-time for certain portions of the year, to be specified in the petition.” The petition and order named the entire year, and for twenty-five years! The question is, does the authority to prohibit for any specified portion of a year, give authority to prohibit for the entire year? This question must be answered in the affirmative. Power to make an order operative at any'time, is power to make one operative at all times. The petitioners may name any portion of the year, and they may therefore name the entire year. The length of time during which the order shall be operative is a matter of their choice, and if they desire that it be operative all the time, there is no power in the courts to abridge their choice. There being no other question in the case, the judgment of the district court will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: But a single question is presented in this case, and that is, whether the proceedings of the board of commissioners had under § 70 of ch. 107, Comp. Laws of 1879, are so far judicial in their nature and conclusive upon the tax-payer that he cannot thereafter litigate, in an action of injunction to restrain the collection of the tax, the correctness of its determination as to the amount of his personal property subject to taxation. This question we have little hesitation in answering in the negative. The proceeding is simply one in the line of assessment. It is one to correct a false or fraudulent return. It is called in the statute an “investigation or examination,” (§ 71,) and is nothing more than a proceeding to correct the assessment roll. Notice to the tax-payer is required, it is true, as a condition of valid action under this section. (Comm’rs of Leavenworth Co. v. Lang, 8 Kas. 284.) Witnesses may be subpenaed and ex amination and inquiry had, but after all, it is nothing but a proceeding in assessment of property. It is a duty similar to that cast in the first instance upon the assessor. (§61.) It may be discharged by either the county commissioners or the county clerk; and while witnesses may be called and examined, so may they be by the assessor. (§ 61.) In the case of The Auditor v. A. T. & S. F. Rld. Co. 6 Kas. 507, Chief Justice Kingman, speaking for the court, says: “The assessment of the property of the state, being then an incident to the taxing power, which is wholly legislative and not judicial, may well be ascertained by agents appointed under the law; but in no sense under our constitution can such agents be considered judicial officers. It is true, that their duties require of them judgment and discretion; but this is also true of most of the duties of ministerial and ex-1 ecutive officers, but this does not make them judicial officers, nor constitute them courts, nor render their conclusions judicial acts.” This was a case where the assessment made by the officers charged with this duty in the first instance, was deemed too low by the state authorities and an appeal was sought to be taken to this court under a statute expressly providing therefor. The order in question in this case is simply one correcting the assessment roll. As such it is not a conclusive judicial determination. It is true, as suggested by counsel, that several such orders have been reviewed in this court upon proceedings in error. (Lappin v. Comm’rs of Nemaha Co., 6 Kas. 403; Ross v. Comm’rs of Crawford Co., 16 Kas. 411; Hall v. Comm’rs of Greenwood Co., 22 Kas. 37.) But this court considers, as a rule, only such questions as are presented by counsel, and in none of the three cases was any question presénted as to the right to review the decisions below. Further, in the first and third cases cited the matter was taken on appeal to the district court, and the statute in terms provides that any person who shall be aggrieved by any decision of the board of commissioners may appeal to the district court. (Gen. Stat. 1868, p. 260, §30; Comp. Laws 1879, p. 277, § 30.) But even if it were conceded that the proceeding is so far judicial as to be the subject of review by proceedings in error, it would not follow that the decision was conclusive. The rulings on motion as a rule do not constitute res adjudicates. (White-Crow v. White-Wing, 3 Kas. 276; Benz v. Hines, 3 Kas. 390; Watson v. Jackson, ante, p. 442. The order on the trial of the right of property attached is also not conclusive. (Sponenbarger v. Lemert, 23 Kas. 55; Graves v. Butcher, ante, p. 291.) And surely these are judicial in their nature, fully as much as proceedings to correct an assessment of one’s personal property. We think the ruling of the district court upon this question correct; and no other matter being presented for our consideration, the judgment will fye affirmed. All the Justices concurring.	[ -15, -22, -7, -4, 10, 96, 50, -88, 73, -79, -81, 115, -23, -102, 16, 63, -14, 61, 117, 74, -59, -73, 83, 107, -74, -13, -39, -33, -77, 79, -28, -4, 76, -79, -54, -11, 70, -55, -57, -48, -50, 15, 9, -52, -48, 96, 52, 105, 18, 75, -15, -50, -21, 44, 25, -61, 73, 44, 75, -89, 16, -72, -86, -99, 95, 6, 49, 38, -40, 3, -24, 46, -72, 57, -64, -8, 123, -90, -122, -44, 13, -71, 8, 118, 98, 49, 53, -17, -96, -103, 46, -69, -99, -25, -108, 89, -22, -119, -106, -99, 116, 2, 7, -4, -26, 85, -33, 108, 7, -113, -58, -73, -113, 52, -102, 66, -33, -93, 16, 113, -124, -30, 93, 71, 50, 27, -114, -60 ]
The opinion of the court was delivered by Brewer, J.: This was an action brought by plaintiff for himself and all others interested, to restrain defendant from plowing and cultivating a certain tract of land claimed to be a public burial-ground. This tract, amounting to one and a quarter acres, was a part of a quarter-section taken under the homestead law. The testimony is not preserved in the record, but the case stands simply upon the pleadings, find ings and judgment. The findings of fact and conclusions of law are as follows: “1. That Elmer Putnam, in the year 1870, was in possession of the S.W. i of sec. 23, T. 6, E. 1, east, in Clay county, Kansas, under the act of congress of May 20,1862, for securing homesteads to actual settlers upon the public domain, and remained in possession of said premises for five years thereafter, and a patent was issued to him on the 10th day of February, 1874. “2. That in the year 1870, while said Putnam was in possession of said premises, the burial-ground described in the petition in this case was laid off, and lots therein staked out, and corner-stones set at the corners of said tract of land, with the consent and under the direction of said Putnam ■ and a plat thereof was made, the object of said Putnam being to donate to the neighborhood the said burial-ground for burial purposes. “3. That Hagaman, the plaintiff, selected a lot in said burial-ground, and buried his wife thereon August 7, 1870, with the consent of said Putnam. “4. That since said time, and prior to the commencement of this action, there were buried from time to time and year to year twenty-five different persons in said burial-ground, with the consent of said Putnam, and before he sold said premises.. “5. That on December 17, 1877, defendant purchased the quarter-section in question from said Putnam, having full notice of the fact that said burial-ground was on said quarter-section, and that the burials had been there with the consent of Putnam, the grantor. “6. That said defendant has refused to allow further burials to be made in said burial-ground, and has plowed up a portion of the same. “7. That two or three tombstones have been erected in said burial-ground.” As conclusions of law, the court finds: “1. That the defendant ought to be perpetually enjoined from cultivating any portion of said burial-ground and from interfering with any of the graves therein. “2. The defendant should be enjoined from interfering with the plaintiff, or the relations of the persons buried in said burial-ground, in entering upon said ground for the purpose of fencing or ornamenting the same. “3. That plaintiff and others whom ho represents, and all persons whomsoever, should be enjoined from making further burials in said burial-ground. “4. That the plaintiff and defendant should each pay one-half of the costs of this action.” Of so much of the conclusions of law and judgment as restrains the further use of this ground for burial purposes and apportions costs, plaintiff in error complains. It is urged that these findings show a full dedication for burial purposes, and that such dedication should be upheld. And we think the claim is well founded. The fact that Putnam intended a dedication, is affirmatively found. He proceeded to lay off the ground into lots, and set corner-stones and to prepare a plat. He permitted its use for burial purposes. As against him, no better evidence of a dedication is required. It was held, in Giles v. Ortman, 11 Kas. 59, that where it is proven that parties intend a dedication and take steps to carry that intention into effect,, very slight testimony will sustain a finding that such dedication was in fact made. Here, the intent is proven, and the facts found clearly establish the dedication as against Putnam. Counsel for defendant seem to claim that time is essential to perfect such a dedication. We do not so understand the law. • Where user alone is relied on, then the question of time may become important. The rule is well stated by Chancellor Kent in his Commentary, vol. 3, side p.451: “The true principle on the subject, to be deduced from the authorities, I apprehend to be, that if there be no other evidence of a grant or dedication than the presumption arising from the fact of acquiescence on the part of the owner in the free use and enjoyment of the way as a public road, the period of twenty years applicable to incorporeal rights would be required, as being the usual and analogous period of limitation. But if there were clear, unequivocal and decisive acts of the owner amounting to an explicit manifestation of his will to make a permanent -abandonment and dedication of the land, those acts would be sufficient to establish the dedication, within any intermediate period, and without any deed or other writing.” It is further urged that at the time Putnam laid off the ground into lots and prepared the plat, the title was not in him but in the United States; his acts, therefore, were not the acts of the owner. This in one sense is true. But he had an inchoate title. He was doing that which would ripen into a title. He was not a stranger to the land. As against every one but the government, he was in a qualified sense the owner; and he carried on that which he was doing until he had perfected the title; and after that, he permitted the use of this land for burial purposes. His subsequent assent was an affirmance of all prior acts. While perfecting his title, he dedicated this burial-ground. After perfecting it, he permitted its use. He is estopped to deny that this is a public burial-ground; and the defendant, purchasing with notice, occupies no better position. The judgment will be modified, and the case remanded with instructions to strike-out that part of the judgment which restrains future and further burials, and to render judgment in favor of the plaintiff for all costs. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J: The defendants in error commenced a civil action in the state of Missouri against the plaintiff-in error, to recover a sum of money due defendants in error for goods, wares and merchandise. At the time the suit was commenced both plaintiff and defendants were heads of families and resided in Johnson county, Kansas. When defendants in error commenced their suit in Missouri they attached one horse, which was released on bond, the case continued, and both plaintiff and defendants returned to Johnson county, Kansas. Plaintiff in error then commenced this action in the district court of Johnson county, Kansas, and obtained a temporary injunction, restraining the defendants in error from prose.cuting their said suit, pending in the state of Missouri. At the November term this cause was tried by the court and taken under advisement, and decided at the March term, 1880, the court dissolving the temporary injunction and rendering judgment against' plaintiff in error for costs. The only testimony offered was that of the plaintiff, as follows: “ I am the plaintiff in this action, and live in Aubrey township, Johnson county, state of Kansas, near the line dividing or separating Kansas and Missouri. I have a wife and two children; they live on the farm with me. I have lived and make my living on the farm. I own 120 acres of land. The defendants, Young & Short, are merchants at Aubrey village, in Johnson county, state of Kansas. I owe them a store bill for goods which I bought of. them in 1878 and 1879; it is an open account; it is about $68.98. On the 17th day-of June, 1879, I went to mill at Belton, Cass county, Missouri, and had a team of horses, a wagon and harness with me, and while waiting for my grist at the mill a summons was served on me from a justice’s court of Cass county, Missouri, by a constable, in a suit that day commenced against me by Young & Short, in their firm-name, for the amount of my store bill of $68.98, and at the same time they had the constable to attach my mare. It was one of the span of horses I was then working to my wagon. The constable attached the mare in that suit, and I gave him a redelivery bond for the mare and brought her home to Kansas with me. I did not then, nor do I now, own any other work animal or team. The animal I worked with the mare that was attached, belonged to my wife.” (Cross-examination:) “1 have never paid the $68.98, nor any part of it. It is an honest, just debt. "When this suit was commenced I owed Young & Short several hundred dollars for goods. They held, my notes for the amount. Since the attachment suit in Missouri was commenced, Young & Short have dissolved partnership, and I took up the notes since the injunction issued in this case, by giving a valuable or blooded horse for them. The horse belonged to my wife, which she got from her brother when it was a colt. I took up the notes by giving the horse for them, with my wife’s consent. I own nothing of the horse kind or team, except the mare that was attached. The bill of $68.98 is for gro ceries for my family, which I bought of Young & Short in 1878 and 1879, at their store in Aubrey, Johnson county, Kansas. When the Missouri constable attached my mare, I did not state to him that I claimed it under the exemption laws of Kansas. ” Upon these facts did the court err in refusing to continue the injunction? Of the power of the court to interfere and restrain the defendants from' prosecuting their action in Missouri, there can be no question. A court of equity by injunction acts upon the person, and when it has the'person of the defendant within its reach, it may forbid him from carrying on any prosecution proceedings anywhere. The authorities are full and .clear upon this point. The supreme court of Massachusetts, in the case of Dehon v. Foster, 4 Allen, 545, in a very learned and lucid opinion, considered the subject in -all its bearings, and declared the doctrine to be clear and indisputable, that a court of chancery, upon a proper case being made, has authority to restrain persons within its jurisdiction from prosecuting suits, either in courts of its own state or of other states or foreign countries. This jurisdiction, it affirmed, is not founded upon any right to interfere with or control the proceedings of other tribunals in other states, but on the clear authority vested in courts of equity over persons within their jurisdiction, and amenable to process to restrain them from doing acts which will work wrong and injury to others, and are contrary to equity and good conscience. The attaching creditors in that case were held liable to be restrained by injunction. The exercise of this jurisdiction is sanctioned by English precedents! Mackintosh v. Ogilvie, 4 Term Rep. 193; 3 Swanst. 365. See also, Shook v. Snetzer, 25 Ohio St. 516; Engel v. Scheuerman, 40 Ga. 206; Dehon v. Foster, 4 Allen (Mass.) 545; Vail v. Knapp, 49 Barbour, 299; Briggs v. French, 1 Sumner, 504; Massie v. Watts, 6 Cranch, 148; Keyser v. Rice, 47 Md. 203; Field v. Holbrook, 3 Abb. Pr. (O. S.) 377; Rorer on Inter-State Law, p. 42v; 2 Story’s Eq. Jur., §§ 899, 900; Hilliard on Inj., p. 234, et seq. The question is, under what circumstances will a court of equity restrain a party from invoking the aid of the courts and processes of another state? It certainly will not do that, simply to compel him to carry on his litigation at home. It will not act upon the basis of any distrust of the courts of a sister state. Truth, as well as comity, compels us to recognize them as correctly expounding the laws of their states, and as enforcing rights according to those laws, purely and honestly. There is in this case no question but that the court in Missouri was acting conformably to the laws of that state, and that the proceedings before it were legal and regular. The parties plaintiff there, defendants here, were simply' invoking the aid of that court to enforce a clear legal right. To compel a party to abandon that right necessitates the existence of an equity superior thereto. The only equity shown, or claimed, is, that the property sought to be subjected to the satisfaction of the debt could not, by the laws of this state, be so subjected. If suit had been commenced here, that property could not have been taken; commenced there, the laws of that state do not prevent its seizure. Yet this is a matter of assumption rather than of proof. There is no testimony as to the laws of Missouri, nothing to show that they limit exemptions to residents. But assuming that they are like ours, and that exemptions are limited to residents — is that of itself sufficient to compel the restraining of the action in Missouri? Notwithstanding the general language used in some of the opinions cited, supra, we are constrained to think that something more should appear. The debt, it is conceded, is a just one, and ought to be paid. It nowhere appears that plaintiff was unable to pay it, or even that he had not abundant property in this state, liable to seizure upon execution, to satisfy it. Eor aught that appears, while this particular property is exempt, he may have been the owner of goods, cattle or money, not exempt and subject to seizure under process from a justice’s court, or of lands which might be taken under process from a court of record. ■ It is not shown that he owns only property that is exempt. . He may have contracted this debt upon fraudulent representations as to the ownership of property in his possession, or being then the owner of abundant property, may since have fraudulently disposed of it. Suppose this action had been commenced in this state before a justice, and exempt property attached: would a court of equity have restrained the action on the ground of the exemption alone, or would it not rather have left the party to the assertion of his legal rights in a court of law? Is there any greater equity in plaintiff's claim because the proceeding was commenced before a justice in Missouri? If a party has simply sought the speediest and cheapest proceeding for the collection of a just debt, should he be restrained, and compelled to pursue his remedy at greater expense and in a court whose processes are slower and more tedious ? If the action in Missouri had been a personal one, with personal service, and no property attached, no one would for a moment contend that the courts of this state ought to restrain the plaintiffs from putting that claim into judgment there; or, if defendant had property permanently situated there, that it might not properly be subjected to the payment of the judgment. There is, generally speaking, no inequity in subjectirig a man's property to the payment of his debts; and while the law, for reasons of public policy, exempts certain property from seizure for debt, that exemption is simply a legal statutory right, and when a party appeals to a court of equity to enforce such exemption to avoid or delay the payment of a just debt, we think at the least it should be shown, not merely that the property is exempt, but also that the party has none other than exempt property. If there has been simply a mistake in the seizure of one piece of property rather than another, it seems to us that equity ought not to interfere unless the debt is first paid, but should leave the party to his legal remedies. We do not mean to.say that equity would interfere at all where the only claim is that the property taken is exempt, providing the proceedings were all in this state. It may be that the party could only proceed in a court of law; but where the seizure is made in a foreign state, the exemption cannot be enforced'by suit at law, and a party may, therefore, have a right to proceed in equity. But then he should make it appear, not only that the seizure is illegal or against the laws of this state, but also that it is inequitable. In Hilliard on Injunctions, p. 238, §34, it is said: “But it will not be the duty of the court to restrain foreign proceedings, if substantial justice is promoted by allowing them to take their course.” And in 2 Story’s Eq. Jur., § 899, the author says: “They [the courts] do not pretend to direct or control the foreign court, but, without regard to the situation of the subject-matter of the .dispute, they consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decree by process in personam.” In the case from 4 Allen, supra, the court uses this language: “If the case stated in the bill is such as to render it the duty of the court to restrain a party from instituting or carrying on proceedings in a court in this state, it is bound in like manner to enjoin him from prosecuting a suit in a foreign court. . . . All that is necessary to sustain the jurisdiction in such cases is, that the plaintiff should show a clear equity, and that the defendant should be subject to the authority and within the reach of the process of the court.” These authorities all agree that equity will not interfere to protect a mere legal right, but that it must also appear .from the relations and circumstances of the parties that it would be inequitable to permit the continuance of the foreign action. We cannot think it so appears in this case, and therefore the judgment must be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: On the 27th day of October, 1879, the plaintiff in error sued out a writ of attachment against one John B. Roussell, in an action pending before W. J. Richardson, a justice of the peace of Brown county. Under the order of attachment, the constable seized, among other property, one bay horse of the value of $60. On the 29th day of October, 1879, the defendant in error served upon the plaintiff in error a notice to try the right of property to the horse before the justice of the peace, on November 1, 1879. Upon the trial, the justice rendered judgment against the plaintiff in error for $14.55, as costs, and adjudged that the claimant was entitled to the possession of the horse.- On November 11, 1879, the plaintiff in error filed an appeal bond, and sought thereby to transfer the case to the district court for trial de novó. At the February term of the district court for 1880, on motion of the defendant in error, the appeal was dismissed. The case is now here for review. The only question -presented is, whether an appeal will lie from the order and judgment of a justice of the peace in a trial of the right of property under §§ 1, 2 and 3, Compiled Laws 1879, pp. 725-6, being §§ 1,2 and 3, ch. 164, Laws 1872. These sections were substantially taken from the statute of Ohio, and the construction given to them in that state must be adopted in this. (Bemis v. Becker, 1 Kas. 226; Stebbins v. Guthrie, 4 Kas. 353.) The supreme court of Ohio held, in Armstrong v. Harvey, 11 Ohio St. 527, that the main object of the enactment of those provisions is the protection of the constable, and not the ascertainment of the real rights of the parties to the property, and that this summary inquisition is not appealable. In Sponenbarger v. Lemert, 23 Kas. 55, 63, we intimated that such judgments are not conclusive. It follows, therefore, that §120, ch. 81, Compiled Laws 1879, is •not applicable, as this action is a special statutory proceeding controlled and governed by the act of 1872. That act makes no provision for an appeal. (Shuster v. Finan, 19 Kas. 114; Butcher v. Taylor, 18 Kas. 558.) The judgment of the court below, dismissing the appeal, will be affirmed. All the Justices concurring.	[ -80, 126, -39, -84, 104, -32, -94, -104, 67, 1, -73, 83, 15, -45, 16, 59, 119, 125, 69, 107, 70, -77, 23, -29, -46, -14, -109, -43, 53, 76, -26, 83, 77, 32, -54, 21, 70, -118, -63, 84, -114, 13, 57, -20, -39, 120, 60, 57, 48, 75, 49, 62, -21, 46, 28, -13, -23, 41, -23, 45, 16, -15, -86, 45, 95, 6, -126, 102, -102, 7, 88, 110, -112, 49, 0, -7, 115, -91, -125, 84, 105, -71, 12, 118, 102, 33, 77, -17, 40, -88, 14, -2, -105, -89, -112, 16, 42, 65, -106, -99, 101, 82, -121, -2, -31, -52, 29, 108, 7, -33, -106, -73, -113, 60, -110, 3, -45, -89, 16, 117, -60, -32, 93, 101, 48, -101, -114, -2 ]
The opinion of the court was delivered by Brewer, J.: Plaintiff in error, plaintiff below, being the holder of a' tax title upon a quarter-section of land, commenced this action against the original owner, to quiet title. The defendant appeared, and upon the trial the tax title was set aside, the amount due plaintiff on account of the taxes paid by him found, but not adjudged a lien upon the land. The plaintiff brings error, claiming that his tax deed is valid, and if not, that the taxes paid by him, and interest, should be adjudged a lien upon the land, with the ordinary decree of foreclosure and sale. The statute of limitations had not run on the tax deed, so the questions rest on the simple strength of the deed and prior proceedings. Three objections are made to the tax title. We shall notice but one, as that is, we think, sufficient to defeat the title. The notice of sale was as follows: “DELINQUENT TAX LIST. “ Treasurer’s Oeeice, Linn Co., Kansas, “March 5th, 1873. “Notice is hereby given, that the following list of lands and town lots are subject to sale for the taxes of the year 1872, remaining unpaid, and that so much of each tract of land or town lot as may be necessary for the purpose, will, on the first Tuesday of May, 1873, and the next succeeding days, be sold by me at public auction for the taxes and charges thereon.” It will be perceived that this notice says nothing about the place of sale. It names the time, but not the place. So far as the notice is concerned, the treasurer might comply with it by selling at his office, or his house, or on the street corner. In reply to this, counsel urge that the place of sale is fixed by statute, and that therefore any mention of the place is unnecessary, and its omission a mere irregularity. There is a plausibility in this argument, but we cannot think it sound. The same argument might be made as to the matter of time, and a notice of sale which specified neither time nor place would have to be held sufficient. Indeed, the same argument would sustain a sale where the only notice was, that the taxes were delinquent — for it is the treasurer’s duty to sell in case of delinquency, as well as to sell at a specified time and place. Nor is it strictly true that the law names the place of sale. The statute (Laws 1868, p. 1046, § 81) requires that the treasurer give notice that he will, on the first Tuesday of May, at his office, sell the delinquent real estate, and then, (§84,) that on the day named he shall commence this sale. Nowhere in terms is it prescribed that he must sell at his office. Only inferentially, and from the requirements of his notice of sale, is that the place fixed. But we do not care to rest this question upon the peculiar phraseology of the statute. We regard the notice of sale as a vital matter in tax-sale proceedings. In that notice, time, place and description are matters of substance. While defects in any of these matters, if not such as to mislead, may be mere irregularities, yet entire omission of either is fatal. A sale for taxes is the exercise of a statutory power, and one conditioned upon certain essential prerequisites. One is, that a proper and sufficient notice of the sale be giyen. Without such a notice, the power to sell does not exist. The statute names the essential facts in such a notice. An entire omission of any one is something more than a mere irregularity. Cooley, in his work on Taxation, p.335, says of this: “This is one of the most important of all the safeguards which have been deemed necessary to protect the interests of parties taxed; and nothing can be a substitute for it, or excuse the failure to give it. The notice being a prerequisite to the officer’s authority, the fact that in the particular case it can be shown that the party concerned was fully aware of the proceedings, will be of no avail in supporting them. He is under no obligation to take notice of the proceedings, unless duly notified. Mere informalities or unimportant variances in any attempt to comply with the law may not be fatal, but variance in substance cannot be overlooked.” This general statement of the law, the author follows with a number of specifications fortified by a long list of authorities, which it will be unnecessary to cite here. Their universal voice is, that an entire omission of any essential fact from the notice is a fatal defect; and that place and time are essential facts both in the sale and in the notice of sale. We conclude, therefore, that the ruling of the district court against the tax title must be sustained. The court found the amount due the plaintiff on account of the taxes, but failed to adjudge it a lien or decree a foreclosure. This is alleged as error. If this had been an action for the recovery of the land, then, under §142 of Comp. Laws 1879, p. 967, the claim must have been sustained. (Fairbanks v. Williams, ante, p. 16.) But an action to quiet title is not an action for the recovery of the land. Indeed, in this case the plaintiff alleged in his petition that he was in the actual possession. Can the plaintiff, not proceeding under said §142,. but in an ordinary equitable action, obtain a decree of foreclosure of a tax lien? It is undoubtedly true that by statute,, taxes are made a lien, and that equity, when it takes jurisdiction, enforces a lien by foreclosure and sale. But has equity any jurisdiction in this case? Can the holder of a tax lien foreclose it as he would a mortgage lien? We think not. The statute has prescribed the proceedings in reference to taxes, tax sales, redemptions, and also to secure the rights of tax purchasers; and whenever these proceedings apply, a party may not invoke the general jurisdiction and proceedings of the courts. Counsel contends that there is no adequate remedy at law, and therefore he has a right to go into-equity. ' We think the statute furnishes him several remedies. If he be out of possession, he can proceed under said § 142. If he be in possession, and his deed recorded and regular on its face, five years will give him the land; (§ 141.) If the original owner seeks to dispossess him, then, under said § 142, he either retains possession or obtains his taxes. If his deed be adjudged invalid, as in this case, on account of a defect in the sale, then, under § 146, he may recover his money and ten per cent, interest from the county. It seems to us that the statute has given ample protection and abun dant remedies to purchasers at tax sales and holders of sale certificates or tax deeds. We think, therefore, in this respect the ruling of the district court was correct. This disposes of the case so far as the plaintiff in error is concerned. Defendant has filed a cross-petition, in which he challenges the interest allowed by the court on the taxes, to wit: fifty per cent, to the date of the deed, and twenty per cent, upon the sum then due, thereafter. Defendant in the court below filed his answer, asking affirmative relief; that plaintiff’s deed be declared void, and his title quieted. This relief he obtained. It is a familiar rule, that he who asks equity must do equity. Seeking to destroy plaintiff’s title, he must discharge plaintiff’s lien; and he ought not, by going into equity, to reduce the rights which plaintiff would have at law. If he brought ejectment, § 142 would fix the amount of interest. It is not equity that by changing the form of his action he can reduce that interest. That section gives “all- interest and costs as allowed by law up to the date of the tax deed,” and twenty per cent, thereafter. The twenty per cent, being expressly named, cannot be questioned; but what is meant by “the interest allowed by law?” We think'it means the interest required for redemption. That is the special provision regulating interest on taxes, and it seems that this language more naturally and properly refers to such- special provision. The rate named after the deed, twenty per cent., indicates that the rate up to'that time was the rate at which the taxes prior would be computed for the deed, or by redemption to prevent the issue of the deed. This section has been in force for many years, and such we believe to have been universally recognized as its meaning. This general recognition is no small evidence of the real intent of the legislature. We suppose the amount found due by the court draws interest from the date of the decree at seven per cent., as any ordinary judgment: we see nothing giving a higher rate of interest. The judgment of the district court will be affirmed. Each party will pay the cost of his own proceedings in error in this court. All the Justices concurring.	[ -16, 110, -35, -66, 58, 64, 42, -120, 105, -79, -91, 83, -19, -126, 4, 57, -13, 41, 117, 74, 68, -73, 19, 43, -10, -77, -39, -35, -73, 77, -9, -58, 12, 32, 74, -107, 102, -54, -59, 84, -50, -123, 9, 76, -39, 96, 52, 123, 68, 72, 113, -50, 115, 46, 24, 66, 73, 44, -55, 53, -48, -72, -69, -115, 127, 7, -79, 54, -40, 71, 104, -120, -110, 49, 0, -24, 123, -74, 6, -12, 13, -117, 40, 102, 102, 1, 101, -1, -24, -72, 14, 91, 29, -89, -112, 88, 35, 40, -74, -99, 125, 16, 71, -2, -26, 21, 29, 108, 7, -54, -42, -77, -113, 126, -102, 3, -9, -125, -80, 113, -49, -91, 92, 103, 48, -101, -114, -4 ]
The opinion of the court was delivered by Brewer, J.: This was an action on the bond of an executrix. The following are the important facts: On the 28th day of January, 1872, W. 0. Waybright died, testate, leaving a widow, now Sarah Ann Smith, the above plaintiff in error, to whom by the provisions of his last will and testament his entire property was given, subject to the payment of his debts. On the 26th day of February, 1872, the will was ■admitted to probate as the will and testament of said W. C. Waybright, with Sarah Ann Waybright the widow, and W. L. Sears, as executors of the will, who qualified by filing the bond sued on in this action. On the same day, said Sarah Ann Waybright appeared in open court and elected to take ■under the will. On the 23d of March, 1872, the executors returned into the probate court of Greenwood county an inventory of the personal property of the estate, amounting to $3,977.16, and the following real estate, to wit: the south half of the southeast quarter of section 2, and the north half of the northeast quarter of section 11, township 27, range 11, east, containing one hundred and sixty acres. On the 18th day of January, 1873, the executors filed in said court a partial settlement, charging themselves with the personal property of the estate, amounting to $4,227.81, and giving themselves credit for the amount paid out, $703.24; and on the same day W. L. Sears resigned, and his resignation was accepted by the court, leaving Mrs. Waybright alone in charge of the estate. On the 9th day of October, 1873, the defendant in error, the Eureka Bank, obtained a judgment against the estate in the probate court, for the sum of $3,196.03, with 12 per cent, interest from said date until fully paid; which was by the court classed as a fifth-class claim. On the 16th day of March, 1876, publication notice was made for the final settlement of the estate at the April term, 1876, of said court. ■ On June 13, 1876, an account and statement as and for a final settlement were filed by the executrix, Sarah Ann Smith, in the probate court. On the 26th day of June, 1876, the hearing of the final settlement, was continued to the first day of the next term of the court. On July 12, 1876, the hearing was again continued, and to the first day of the next term of the court. No further entry appears on the record of the court, until July 13,1877, when the final settlement was approved by the court.’ There were other claims allowed against the estate, and all classed as fifth-class claims, except $167.58, which was allowed as a second-class claim. Now, upon these facts the first question that arises is, as to the effect of the final settlement. It is not doubted that a final settlement regularly made upon due notice has the force and effect of a judgment. (Shoemaker v. Brown, 10 Kas. 383; Musick v. Beebe, 17 Kas. 47.) “It is a direct adjudication that the estate is fully administered, and that means either that all the debts are paid, or that all the assets are exhausted. It implies that the administrator has received, not merely all the money he admits in his statement, but also no more. In other words, that he has fully accounted for all that he has received or ought to have received, and that so far as it was sufficient, he has used it in the discharge of the debts.” Where suit is brought upon an executor’s or administrator’s bond for malfeasance or misfeasance, and a final settlement is set up as a defense, the inquiry involves a collateral attack upon such final settlement, and mere irregularities, such even as would be sufficient for reversal in proceedings in error, will not avoid its force. It is like any other judgment when thus attacked. If the court had jurisdiction, it will be sustained, errors in the proceedings notwithstanding. Though a court of limited and special jurisdiction, the judgments of a probate court are as authoritative and conclusive as those of the district or any other court of general jurisdiction. The probate court of Greenwood county was the court in which this estate was properly administered, the one in which a final settlement was properly to be made. The court had a general jurisdiction and control of the estate; and if the final settlement had been made and approved at the term named in the notice, there would be little or no question but that such settlement would have been a bar to this action. But the contention is, that because not made at that term, nor at the term to which the consideration of the matter was continued, and not till more than a year thereafter, the court lost jurisdiction, and that no final settlement could then be made without a new notice. Plaintiffs in error offered to show by parol, that the settle- . ment was not approved at the term to which it was continued upon the request of defendant in error, and that the latter took the settlement for examination and held it for a year and then returned it to the court, with the statement. that it had no objection thereto, and that thereupon it was approved, but the district court refused to permit such testimony, and held the parties bound by the record as it stood. Taking the case, then, as it stands upon the record, did the probate court lose jurisdiction by a failure to enter a formal continuance from term to term until the order of approval ? There can be no question of the power of the court to order a continuance, or that such continuance carries with it the notice, so that if formally continued, no new notice would be necessary. Every court, except where limited by statute, has power to continue proceedings before it from term to term. (Masters v. McHolland, 12 Kas. 17.) This is one of its inherent powers. In Life Ins. Co. v. Twining, 19 Kas. 367, it was decided that a motion for a new trial in the district court did not become defunct by a failure to act upon it at the term at which it was filed, or to enter a formal order of continuance, but that it passed over for hearing at the subsequent term. Kindred in principle is the decision in Bond v. White, ante, p. 45, in which it was held that a case once legally commenced continues in existence until some affirmative action discontinuing it. In other words, the idea is that where jurisdiction once attaches, and the action of a court is invoked, the jurisdiction remains until that action is had, or the application therefor withdrawu. Does the same principle obtain in this case? Those rulings were in reference to proceedings in the district court, but why, in the absence of statute limitations, are they not applicable to all courts? Upon what principle can it be held that a district court holds jurisdiction from term to term, while a probate court under precisely similar circumstances loses it? Each is a court of record. The methods of acquiring jurisdiction may differ, but jurisdiction when acquired is as absolute and complete in one as in the other. Each has power to continue. The right of dismissal exists in each. In case of delay or refusal by either to act, a party has the same means of compelling action. Suppose the court refuses to act, is jurisdiction lost and the right to act gone? If there be no refusal, but simply a failure to act, a mere neglect of the court, does that send either party out of court? And if the wrong or omission of the court does not oust jurisdiction, does mere laches of the party making the application ? Must he press for a ruling .under penalty of losing the right to a ruling by delay? Where no ruling is asked by either party, is not each guilty of laches, and can one claim the benefit thereof as against the other? But say counsel: Does the law contemplate that executors may give notice that final settlement will be made at a time certain, then refuse and delay making suclT settlement for more than one year thereafter, then without further notice come into said court, make final settlement and get their discharge without the knowledge or consent of the creditors ? In one sense of that question, we reply unhesitatingly, no — the law contemplates no delay. It means that every case, every application in whatever court brought, shall be speedily tried and determined. It encourages promptness — oftentimes makes rights hinge th,ereon. But the question here is not as to the error in the court’s action, but as to its power to act. It might properly have required further notice. Perhaps the error was sufficient to have justified a reversal. Unless the statute requires action at the first term, or unless in the nature of things a failure then to act determines the jurisdiction or ■ends the proceeding, action at a subsequent term is within the power of the court. The question is very different from that which would have arisen if no notice had ever been given. Then it might be argued that the court never had jurisdiction; now it is conceded that it had, but it is claimed that it lost it; and this, not because it dismissed the opposite parties from court, or dismissed the application, but ■simply because it did not then act upon it. It is no uncommon thing for cases to remain in the district court for a great length of time, going over from term to term without any formal continuance. Frequently orders are made in the absence of the adverse parties and without special notice to them. We have had occasion to reverse many cases for errors in this respect; but such orders were not made without jurisdiction, were not void, so as to be challenged collaterally. It may be said that in most cases special notice is served on the adverse party, while here only a general notice is required to all, interested of the intended application; but this bears upon the question of error rather than of power. If the legislature deem such a notice sufficient to bring the adverse parties into court, that is the extent of our inquiry. When once in, their rights are those of parties in court — no more and no less. The legislature has made some provision for the relief of those who may not know of the exact time when such applications will be heard. Sec. 158 of the executors’ and administrators’ act gives a party who is absent, and has no actual notice, six months in which to file exceptions and have the settlement opened. This, with the remedies of appeal and error, it has deemed sufficient to protect the rights of all parties. Ordinarily it would seem that these were ample. In this very case the administration of the estate was continued for over five years. If the executrix was guilty of malfeasance or misfeasance during that time; if she failed to pay over the moneys in her hands, or to convert any property, real or personal, into money, there was ample time and abundant opportunities to punish the wrong, and enforce the payment of claims. It follows from these considerations, that the probate court had not lost jurisdiction of the matter of the final settlement of the estate by its failure to act at the term named in the notice, or at that to which a final continuance of the proceeding. was had; and if it had jurisdiction, then such final settlement is a bar to this action. The question of malfeasance or misfeasance is res adjudicata. . The judgment of the district court will be reversed, and the case remanded for a new trial. All the Justices concurring.	[ -78, 106, -36, -100, 42, 96, 10, -102, 112, -95, -95, 83, -23, 19, 21, 41, 115, 9, 81, 123, -42, -109, 23, -23, -46, -77, -71, -49, -80, -39, -12, -41, 77, 32, 2, -99, -26, -118, -59, 116, 76, -124, 9, -23, 89, -16, 48, 59, 50, 73, 113, -66, -13, 42, 29, 102, 77, 62, -23, -83, 88, -8, -117, -115, 75, 22, -111, 70, -104, -57, -64, 14, -104, 49, 1, -24, 115, -90, 4, -12, 47, 25, 12, 114, 102, 33, -91, -27, -96, -120, 15, -78, -67, -89, -76, 88, 11, 105, -66, -103, 116, 96, -125, -2, -18, 21, 29, 100, 1, -53, -42, -95, 9, 120, -100, 11, -5, -85, 48, 113, -49, 42, 93, -25, 56, -101, -58, -7 ]
The opinion of the court was delivered by Brewer, J.: This case has once been in this court, and is reported in 19 Kas. 539. A judgment against the railroad company was then reversed, and the case remanded for a new trial. Subsequently, the petition was amended to conform to the views expressed in the opinion then filed, and a second trial was had, resulting again in a judgment against the railroad company. This second judgment is now challenged by the plaintiff in error. Two principal questions are presented, which are all we deem it necessary to notice. It may be premised that the main facts appear now as they did when the case was here before. The first proposition of counsel is, that the plaintiff is estopped from asserting that the title acquired from the government by G. B. Dunmeyer, and purchased by him, is paramount to that acquired by him from the defendant. This proposition is rested upon the doctrine of the effect of a compromise of disputed rights, as laid down by this court in the case of the A. T. & S. F. Rld. Co. v. Starkweather, 21 Kas. 322. But compromise implies controversy. None appears here. The mere purchase of a title and acceptance of a deed are not necessarily a compromise, tie settlement of a controversy, even though the party receiving the deed have at the time himself a different claim. In the Starkweather case, it appeared that the parties had a controversy; that this controversy was litigated in the land department of the United States, and decided adversely to Starkweather; that then, being out of funds and unable to carry on the litigation in another forum, and to prevent a sale by the railroad company, he went to the company and purchased. By that he settled and compromised a pending controversy, and we held that he was bound by that settlement. In the opinion we referred to some cases in which the mere acceptance of a deed was held to estop from questioning the title apparently conveyed thereby, but expressed .our dissent from the extreme views of those cases. Those cases are cited by counsel, and the contention is that the case at bar is stronger than any of them, and more within the scope of the reasoning in the Starkweather case. We cannot concur with counsel. The record before us fails to show any controversy between Miller, the original purchaser from the company, and the company. It simply shows that, having an occupation of the land which might be the foundation of a title by preemption or homestead, he suffered that to go by default and purchased from the company. He never contested with it the question of superior title. In fact he had no title. He had a prior right to purchase or acquire title by occupation from the government; but that is all. Instead of purchasing from the government, he bought from the company. And this, not by way of closing any litigation or settling any controversy, but doubtless because he then thought that the company had title to convey. The company never attempted to disturb his possession; never, save in the mere act of receiving money and issuing a deed, asserted any claim to the land. In other words, before any controversy arose he purchased. Now unless the mere acceptance of a deed and payment for the title conveyed thereby is proof of a controversy and the settlement of it, this case shows no controversy or Compromise. Further, Miller, the original purchaser from the company, is not now a party in interest. He assigned his certificate of purchase, and after one or two assignments it passed into the hands of plaintiff, who surrendered the certificate and took a deed. In other words, plaintiff, not an original occupant of the land, and without, so far as appears/ actual knowledge that there was ever any preemption or homestead right thereto, finds a party holding a contract of purchase from the defendant, and buys that evidence of title. That title, thus contracted for, and afterward conveyed by defendant, fails, and a paramount title is yielded .to and purchased. It is not. Miller’s paramount title that was yielded to, but the government’s. Miller never had title, and by abandoning the land he lost the right to acquire title. He had nothing to convey, and he gave no warranty. The defendant warranted, but had no title. It warranted to plaintiff, and not to Miller. Miller’s conduct neither bettered nor injured defendant’s claim of title. Being on the tract with the intention of homesteading it at the time defendant’s grant attached, this tract never passed to the company. Whether Miller abandoned it or .continued his occupation, was immaterial. Defendant’s title to lands within the strip is of a fixed date. At that date the alternate sections “not sold, reserved or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached,” were identified. The title dates from the date of the grant, but the identification, is of the time the line is definitely fixed. Then the float attached to the particular lands and the grant became as definite as though the various sections had been particularly named. The float ceased. The grant was exhausted. The lands were designated. The company took and could take nothing more, no matter what change in title or condition of other lands might thereafter arise. The excepted lands did not and were not in any contingency to become its property. “The grant then becomes certain, and by relation has the same effect upon the selected parcels as if it had specifically described them. In other words, the grant was a float until the line of the road should be definitely fixed.” (M. K. & T. Rly. Co. v. K. P. Rly. Co., 97 U.S. 491.) “And these lands being within the terms of the proviso, as we construe-it, it follows that they are absolutely and conditionally excepted from the grant; and it makes no difference whether or not they subsequently became a part of the public lands of the country.” (L. L. & G. Rld. Co. v. U. S., 92 U. S. 733.) So that whether Miller maintained or abandoned his homestead entry and occupation after the time that the line of defendant’s road was definitely fixed, in no manner affected its rights to the land. The other contention of counsel is, that in fact the company did have the title. The facts are, that on July 25, 1866, Miller made a homestead entry of the land. On the 3d of July, 1866, an act of congress was passed, providing for the filing of a map of the general line of its road by the company defendant, and that “upon the filing of said map, showing the general route of said road, the lands along the entire line thereof, so far as the same may be designated, shall be reserved from sale, by order of the secretary of the interior.” This act was but an extension of the right conferred by the original act of 1862, in which it was provided, that upon the filing of the map of the general route, “the secretary of the interior shall cause the lands within fifteen miles of said designated route or routes to be withdrawn from preemption, private entry and sale.” (12 U. S. Stat., p. 493, §7.) On July 11th, the company filed its map. On July 14th, the commissioner of the general land office wrote to the local land officers to withdraw the lands from sale, homestead and preemption entry, which communication was received by them on July 26th, and on that day the proper entries were made upon their maps and plats to indicate such withdrawal. The line of defendant’s road along and adjacent to this land was not definitely fixed until September 21, 1866. On December 17, 1869, Miller purchased from the company, and took a certificate of purchase. On April 28, 1871, Miller’s homestead entry wás canceled. On October 16,1871, G. B. Dunmeyer made a homestead entry. A. contest arose before the land office between him and the company, which was decided by the commissioners in favor of Dunmeyer, and no appeal being taken to the secretary of the interior, the decision was made final, and a patent issued to him. Now it is claimed, that by the filing of the map, the lands were withdrawn from market, and that no homestead or preemption right could thereafter attach. Hence, Miller’s homestead entry was void, and the title passed by the grant to the company. We are inclined to think this view not correct. The lands are to be reserved from sale, by order of the secretary of the interior, or, in the language of the prior act, he is to cause them to be withdrawn from sale, etc. This, it would seem, contemplates some act by the department, and until that act was completed, the withdrawal was not made. No formal order of the secretary is shown. The only thing is the letter from the commissioner to the local land officers, and their action thereon. The land was then in fact withdrawn. • Perhaps the order of the secretary, if one was made, was to take effect upon the receipt by the local land officers of the notice and letter from the commissioner. If so, it would seem to be within the scope of his powers. And in the absence of other showing, this action of the subordinates of the secretary of the interior must be taken as in fact the order of the secretary. The language concerning withdrawals differs from that respecting the grant. The latter is, “that there be and is hereby granted,” etc. It is absolute, depending on the action of no officer, and takes effect upon the passage of the act. (97 U. S. 491.) The other casts a duty upon an officer of the government. It does not provide that the lands shall be withdrawn upon the filing of the map, and by virtue of that act alone, but that the secretary shall cause them to be withdrawn when that map- is filed. In other words, a duty is cast upon him, and on the performance of that duty the withdrawal is complete. That duty, so far as the record here shows, was completed on July 26th, and that is therefore to be taken as the date of the withdrawal. In the case of the K. P. Rly. Co. v. M. K. & T. Rly. Co., in this and the supreme court of the United States, it seems to have been an unquestioned fact that July 26th was the date of the withdrawal. (15 Kas. 20; 97 U. S. 491.) True, that date was not one of moment perhaps in that ease, and the expression in the opinion of the two courts concludes no one. Still, it serves to show the general understanding of the scope and effect of the statute concerning withdrawals. The rulings of the land department of the United States have not been uniform, it is believed, upon this question, and congress attempted, by act of April 21, 1876, (U. S. Stat. 1876, p. 35,) to put an end to dispute. That act is in harmony with the conclusions reached by us. It should also be noticed that the company litigated with Dunmeyer his right to homestead before the land office, and it was defeated in that litigation. That decision, if based upon the construction of a statute or a question of law, may not be conclusive, but so far as it determines a fact, it is, except in case of fraud, etc. (Johnson v. Towsley, 13 Wall. 72.) The record before us does not clearly and fully disclose the ground of the decision. ' The simple conclusion of the contest is about all that appears. The company’s grant is spoken of as taking effect March 3, 1869. Upon what facts that conclusion is based, nothing in the record before us shows. It may, however, be conceded that probably the decision was based upon a construction of the statute upon undisputed facts. We do not rest our judgment upon that decision, but z’efer to it as an opinion in harmony with our own. While the question, it must be conceded, is doubtful, we think the ruling of the district court was correct, and that the title conveyed by the patent to Dunmeyer was in fact paramount to that of the company. We notice no other questions of importance which were not in the case when here before and then considered. The judgment will be affirmed. All the Justices concurring.	[ -16, -2, -35, -98, -118, 96, 42, -104, 97, -95, -89, 83, -87, -45, 24, 49, -26, 77, 81, 42, -42, -77, 87, -30, 82, -45, -13, -51, -77, 76, -26, 71, 76, 32, 10, -43, -26, -54, -51, -100, -50, -123, 41, -24, -47, -64, 52, 91, 70, 79, 81, -117, -13, 44, 25, 67, 41, 46, -21, 45, -48, 120, -102, -114, 93, 6, 35, 52, -104, 3, -56, 62, -112, 53, 3, -24, 115, -90, -122, -12, 37, -103, 8, -30, 103, 33, 45, -17, -86, -104, 14, -5, -113, -90, 116, 88, -117, 64, -67, -99, 116, 82, 7, 126, -18, 29, 29, 124, 5, -117, -74, -73, -57, 60, -102, 71, -22, 35, 33, 96, -58, -86, 93, 103, 112, -103, 15, -4 ]
The opinion of the court was delivered by Horton, C. J.: On the 7th day of March, 1877, the plaintiff in error brought its action against the defendant in error, in the district court of Saline county, to recover $642 upon a promissory note, and to foreclose a mortgage given to secure the same. The defendant, Beebe, filed an answer alleging the payment of the note in full. The case was tried to the court, without a jury, on January 8, 1878, and then taken under advisement to the next term. At the ensuing term, and on the 4th day of May, 1878, the court rendered judgment for the defendant for all costs. A motion for a new trial was filed within three days, which was overruled, and sixty days taken to make a case. This was prepared by counsel for plaintiff, and handed to the opposing counsel on June 13, 1878. It was presented to the judge for settlement on July 19, 1878, and by agreement of the parties, settled, allowed and signed on July 22,1878, as of the date of July 2, 1878. At the settlement of the case, the judge, of' his own motion, struck out large portions of the evidence, and otherwise corrected the case in accordance with his recollection and understanding of what occurred on the trial. The plaintiff was dissatisfied with the case as settled, and on September 28, 1878, filed its petition in the district court of Saline county for a new trial, or a reformation of the made case. On October 23, 1878, defendant filed a demurrer to the petition, on the ground that sufficient facts were not stated to constitute a cause of action. On December 6,1878, the court sustained the demurrer. The plaintiff duly excepted to the ruling. Thereafter the court decided to hear the plaintiff’s testimony concerning the alleged mistake and misunderstand- i'ng of the judge of thp evidence introduced on the trial of the original case of the association against the defendant. This testimony is preserved in the form of an additional or supplemental case-made, settled and signed February 10, 1879. The proceedings in error attempt to present for our consideration and review the case commenced March 7,1877, in which judgment was rendered May 4, 1878, and the subsequent case commenced September 28, 1878, and-decided on demurrer on December 6, 1878, and also the additional or new case-made of February 10,1879, concerning the correctness of the original case-made. . The case-made of February 10,1879, is easily disposed of. It is attempted to connect it with the action of the court in sustaining the demurrer to the petition filed September 28, 1878, yet it cannot affect that proceeding- The petition, demurrer and the exceptions all antedate the testimony, and virtually complete the record of that case; at least, those portions of the record give to this court all that is necessary to determine whether the court erred in sustaining the demurrer. Further, the certificate of the judge is to the effect that the testimony submitted after the demurrer was sustained, was received to test the correctness of the original case-made; in the exact language of the judge, “to refresh our memories in order to get the case-made correct.” Again, said supplemental case cannot overthrow or change the case-made of July 22, even if we could sanction the practice of reopening a case-made against objection of opposing counsel, after it has been settled and signed, for the addition of evidence rejected at the settlement (which we cannot), as the judge certifies the evidence preserved in the case of February 10, 1879, “is somewhat different from that originally given — many new statements and opinions being injected.” As conclusive upon that point, he says: “I know this, because I kept quite full notes of both hearings, and have compared them.” In brief, the rehearing of the witnesses upon the dispute between the judge and counsel as to the correct ness of the original case-made, failed to satisfy the former that the case was incorrectly settled, or that any additions should be made. If counsel and the trial judge differ as to the accuracy of evidence introduced in a case-made when tendered for signature, and it is thought advisable by the judge to reexamine witnesses to refresh his recollection, such reexamination, to be of any practicable benefit, or to subserve any useful purpose, must be had before the case-made is settled and signed. The practice pursued in this case is not in accordance with the statute. All that is left for further consideration is the original case-made of July 22, and the action of the court in sustaining the demurrer on December 6. No errors are pointed out by counsel in the original case-made, except in the allegations that the judge eliminated material evidence, and otherwise changed the case-made before signing it without any amendment being suggested in writing. We decided in Sloan v. Beebe, ante, p. 343, that the judge of the district court in settling a case-made for this court has the power before signing, on his own motion, to make such alterations, erasures and additions in it as may be necessary to make it speak the truth. In addition, his decision as to the truthfulness of the case-made is conclusive and final, until, at least, the certificate is shown to be intentionally false and to have been fraudulently prepared. Such a showing has not been made here. (Shepard v. Peyton, 12 Kas. 616; M. K. & T. Rly. Co. v. City of Ft. Scott, 15 Kas. 435.) No errors, therefore, are brought to our attention in the record of the first action. As a record imports absolute verity, in the absence of allegations of fraud, or want of jurisdiction in the court, we must assume the journal entry of May 4, 1878, and the certificate of the judge of July 22, to be true; hence, omitting such portions of the petition of September 28,1878, as contradict or attack those records, the gravamen of the petition is, that a new trial should be awarded in the first action, or the original case-made reformed, because the case-made was set- tied and signed by the trial judge under a mistake and misapprehension of the testimony submitted on the trial, and thereby the plaintiff is debarred from having his ease reviewed upon a true, fair and just record; It is not charged that the case-made, as signed, is intentionally false, or that it was fraudulently changed or modified, or that the successful party has been guilty of any fraud in obtaining the judgment or in settling the case-made. As the same rules must necessarily .apply to the power and duty of the trial judge, in settling and signing a case-made, so far as its accuracy is concerned, as to bills of exceptions, the allegations of the petition fail to state a cause of action. The law devolves upon the trial judge the right and duty of passing upon the correctness of a case-made, and as it would be unseemly in practice and unsatisfactory in its results to allow a jury not present at the trial to settle a case-made upon conflicting testimony against the judge who presided at the trial, the law will not permit disputes of counsel with the trial judge over the evidence contained in a case-made or a bill of exceptions, to be litigated as here attempted. (Shepard v. Peyton, supra.) The rulings and judgments of the district court will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: This action grows out of the facts which are stated in the opinion in the case of Fraker v. Cullum, 21 Kas. 555, and is for the recovery of about $1,800 due from the bank to plaintiff, and which was given up at the time of the execution of the notes in controversy in that case. The transaction appears now as it did then, and the single question is,' as to the right to recover this money as money paid under a mistake of fact. Beyond question, the original note of $4,862.40 was so altered while in the possession of the bank as to be void. Plaintiff being but an accommodation maker, there was no antecedent indebtedness of his to the bank. Eor this void and worthless paper he surrendered to the bank ^1,800, or thereabouts, which the bank owed him, and executed new notes to make up the difference. What consideration was there for this? Absolutely nothing. The bank, having no claim upon him, could recover nothing. Yet, ignorant of the real facts, and supposing himself liable, he thus gave up his money and signed the new notes. His ignorance of the alteration clearly appears. It was done by the officers •of the bank without his knowledge and consent, and for the sake of imposing upon the official bank examiner. Nor can it be said that he was guilty of more than slight, if of any, negligence in not critically examining the old note at the time of its surrender, and detecting the alteration. The party who brought the paper to him was the president of the bank, his own brother, a reputable business man. Why should he ■suspect fraud, or act as though he supposed there was a design to swindle him? How natural that he should accept the statement of the president that' the paper was unpaid, and perhaps glancing at his own signature to see that that was genuine, do the best he could towards settling his supposed liability to the bank. But supposing he were negligent in the matter: how does his negligence give the bank any better right to his money? Does mere negligence bar a recovery of money paid by mistake? Clearly not. In 2 Daniel on Negotiable Instruments, (2d ed.,) §1369, the author .says: “ It is a general principle of law, that money paid under a mistake of fact may be recovered back. And now the doctrine is favored that even negligence in making the mistake is no bar to recovery.” In the ease of National Bank of Commerce v. National M. B. A., 55 N. Y. 211, the court thus states the law: “It is now settled, both in England and in this state, that money paid under a mistake of fact may be recovered back, however negligent the party paying may have been in making the mistake, unless the payment has caused such a change in the position of the other party that it would be unjust to require him to refund.” (See also Law rence v. Am. Nat. Bank, 54 N. Y. 435.) It is unnecessary to pursue this matter further. The judgment will be reversed, and the case remanded for a new trial. All the Justiees concurring.	[ -78, -8, -8, 125, -117, 32, 42, -102, 85, -95, -89, 115, 105, 3, 20, 101, 119, -87, 53, 66, -34, -77, 7, 11, -14, -69, -40, 85, -79, 76, -28, -41, 77, 48, -62, 85, 102, -54, -63, -44, -50, -124, 40, 97, -39, 73, 48, 41, 80, 75, 113, -114, 99, 58, 17, 71, 105, 42, 123, -71, -48, -72, -113, -115, 125, 21, -95, 23, -100, 5, -40, 44, -104, -45, 9, -8, 122, -74, -122, -43, 111, -71, 8, 98, 102, 16, 85, 107, -112, -88, 39, -18, 63, -90, -110, 88, -117, 109, -66, -99, 109, 16, 6, -4, -2, 29, 29, 108, 25, -50, -42, -77, -81, 118, -102, 75, -17, -125, 32, 113, -50, 96, 93, 71, 122, -101, -98, -3 ]
The opinion of the court was delivered by Brewer, J.: This is an original action in this court, brought by plaintiff to compel the canvass of a vote cast for him for county commissioner of the second district of Harvey county. The facts are these: The defendants are the board of commissioners and clerk •of Harvey county, Kansas. In October, 1873, the board of •commissioners subdivided the county into three commissioner •districts, as follows: First district: Newton, Pleasant, Walton, and Highland townships. Second district: Richland, Darlington, Sedgwick, Lakin, and Lake townships. Third district: Alta, Garden, Emma, Macon, Halstead, .and Burrton townships. The districts so constituted remained unaltered, and said board never attempted to alter them in any way until the action herein complained of. On the 8th day of October, 1879, the board passed the following order: “Moved, by Commissioner Seaton, that the commissioner •districts of Harvey county, Kansas, be changed as is shown below; the change to take effect from and after the publication in the Newton Republican. “First commissioner district, (population, 3,289 inhabitants,) to comprise the townships of Sedgwick, Darlington, Richland, Pleasant, Walton, and Highland. “Second commissioner district, (population, 3,693 inhabitants), to comprise the townships of Newton and Macon. Third commisssioner district, (population, 3,378 inhabitants,) to comprise the townships of Alta, Lake, Lakin, Burr-ton, Halstead, Garden, and Emma.” This oi'der was not officially published until the 30th day ■of October, 1879, though the matter had been repeatedly spoken oLin the papers of the county before that time, and •was fully known in the county. Election day was November 4th, 1879. On November 3d, an appeal from this order was attempted to be'made by some of the electors of the old second commissioner district. On election day, about half -of the voters in the old district voted for commissioner, and plaintiff received all of these votes. In the new second dis trict a full vote was polled, and one W. W. Tourtelott received a majority, and was duly declared elected. The sheriff published no new notice of election after the change in the commissioner districts, his proclamation simply calling for the election of a commissioner from the second district. Upon this, plaintiff contends that the order was void, because it was not for the alteration of existing districts, but the annihilation of old and creation of new, as of unorganized territory. The second district contains none of its former territory. We do not think the objection well taken. The statute gives the commissioners full power to make the change. It reads: “Each county . . . shall be divided by the board of county commissioners into three compact districts, as equal in population as possible, numbered respectively one, two, and three, and subject to alteration at least once in three years, and one commissioner shall be electqd,” etc. (Comp. Laws 1879, p. 273, §11.) Now we do not think that under this power of alteration it is essential that some portion of each former district be found in the new. Full power of rearranging the county into commissioner districts is given, with the limitations that they shall be compact districts, and as equal in population as possible. In the very nature of things, the changes of population in some of our new and growing counties would require very radical changes of territory in order to make the districts equal in population. Even according to the ideas of counsel, it would require only two orders of the county board instead of one to do just what they did in this case. The alterations can be made as often as the commissioners see fit. The statute evidently contemplates one every three years. (Foltz v. Comm’rs of Benton County, 50 Ind. 562.) A second proposition of coitasel is, that the order was inoperative to affect that election, because not published in time. The sheriff is required to give notice by proclamation at least fifteen days before the election, and this order of change was not published and did not become operative until October 30th. We cannot agree with counsel. This was a general election, and the omission of the proclamation would not vitiate the election. More than that, his proclamation would not define the boundaries of the second district; it would and did simply call for the election of a commissioner from that district. The legal boundaries of that district are fixed by the order of the commissioners, and that full knowledge of such order and boundaries was had by the voters is evidenced by the votes. It is unnecessary to consider what effect an order not made in time for general knowledge of the voters would have. A final proposition is, that the order v&s stayed by the attempted appeal. We do not think the appeal amounted to anything. We do not understand that a mere political and governmental order of the county board — one not affecting private rights — can, by one interested solely as an elector, be taken on appeal to the district court. Where some distinct private right is trespassed upon, a party injured thereby may take the order up by appeal and have it reviewed, but a certain amount of legislative power is given to the commissioners, and their action in these respects is not the subject of review by appeal, except where specifically so provided. It would be strange if all political and legislative action of the county board could be stayed by any one willing to give an appeal bond. We do not think this a matter subject to appeal at the instance of one who has no other interest than that of an elector. These are all the matters presented by plaintiff. We think the order of the commissioners valid. Large powers are in this respect intrusted to them, as well as an almost unlimited discretion. It is generally true that where power to act is granted without direction or limitation as to the time and manner of acting, the power can be exercised at any time and in any manner. Only the question of power is before us, and we think the commissioners had the power to make the order which they did. Judgment will therefore be entered in favor of defendants. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: The underlying question in this case is, whether a voluntary conveyance made with the actual intent to defraud existing creditors is void only as to such creditors, or whether the conveyance is also void as against all subsequent creditors? The record discloses that the court found as conclusions of fact, among others, that— “On December 18, 1861, Z. M. Perkins purchased the lands in controversy from J. C. McCoy for $2,000, the consideration of which he paid with his own money.; that on August 26, 1865, he and "his wife Lucinda Perkins deeded the land to one Ely Snyder, in which deed $5,000 was named as the consideration; that no consideration was paid; that on the 17th day of October, 1865, Snyder deeded the land to Lucinda Perkins; that the deed recited as the consideration $5,000, but no consideration was paid; that said deed was recorded August 22d, 1871; that the conveyances from Z. M. Perkins and Lucinda Perkins to Ely Snyder, and from the latter back to Lucinda Perkins, were made in pursuance of an agreement between the three, for the purpose of preventing the existing creditors of Z. M. Perkins from obtaining the land in satisfaction of their claims; that on the 11th day of July, 1872, Z. M. Perkins executed his note for $600 to Mrs. Elizabeth J. Thomas; that on the 27th day of October, 1873, the latter commenced her action against Z. M. Perkins to recover on the note, in the district court of Miami county, and on December 23, 1874, obtained judgment for $612.29; that upon this judgment $40 was paid January 16, 1876; that on February 2, 1878, Mrs. Thomas caused an execution to issue on the judgment, which was levied upon the land, March 11, 1878; that on the date of the note, and to. February 9, 1878, Z. M. Perkins was continuously residing upon and occupying the premises with his wife.” These findings show that the defendant in error (plaintiff below) was not an existing creditor at the dates of the fraudulent conveyances, or the dates of their being recorded; neither is there any intimation in the finding that she was an anticipated creditor at the execution of the conveyances, or at the time the deed to Lucinda Perkins was filed. The note to Mrs. Thomas is dated July 11,1872, at Miami county; hence, as there was no proof of a prior indebtedness to her, her claim first came into existence about seven years after the execution of the fraudulent conveyance, and nearly a year after the deed to Lucinda Perkins had been recorded. As all the transactions occurred in Miami county, Mrs. Thomas was bound to take notice that the title of the premises was in Mrs. Perkins at the origin of her debt. Therefore, it cannot be said that her claim was incurred on any faith that the property belonged to Z. M. Perkins. The counsel for defendant in error asserts the broad doctrine, that if any intent existed to defraud any single creditor at the execution of the fraudulent conveyances of 1865, the conveyances are void as to all subsequent creditors, and that his client, being a subse quent creditor, had a lien upon the premises from the time of the rendition of her judgment, notwithstanding the title of Lucinda Perkins was recorded several months prior to the existence of the note on which judgment was rendered. In support of this view, counsel refers to §137 of Freeman on Executions, and the authorities there cited. The learned trial judge seems to have adopted this interpretation of the act for the prevention of frauds and perjuries. The opposing counsel contend that as the fraudulent deeds were binding on the grantor, Z. M. Perkins, and as Mrs. Thomas was not an existing creditor, (only a subsequent one,) whose claim was not contracted upon the faith of the land in contest, or incurred so soon after the fraudulent conveyance as to warrant the presumption that the conveyances were made in contemplation of her debt, or of future indebtedness, she is not in any position to attack the conveyances, or levy her execution upon the property thereby transferred, and that Z. M. Perkins had no equitable or other interest in the land at the date of the judgment, subject to a lien. With this view, we coincide. It would be a waste of time even to refer to the multitude of cases in which the proper construction and application of the statute of frauds and perjuries have been discussed by the courts of England and America. Much research and learning have been developed upon the subject, and the cases are almost numberless; yet great diversity of decision remains. Some of the seeming discrepancy in the authorities, however, may have arisen from not discriminating between the different kinds of fraudulent conveyances and the different degrees and shades of frauds in each. The very strong case cited in Freeman, of Clark v. French, 23 Me. 221, is hardly applicable in this state. ' Here, the general policy of the real-estate law, as frequently announced by this court, is, to discountenance secret trusts; to require everything concerning title to, or rights in land, to be in writing; and no secret or other trust, capable of any legal or equitable enforcement existed in the conveyances- of 1865, in favor of the grantor, Z. M. Perkins. (Sexton v. Wheaton, 8 Wheat. 239; 1 Am. Leading Cases, 1; Graham v. La Crosse, &c., [Sup. Ct. U. S.,] 11 Cent. L. J. 464; Rappelye v. International Bank, 15 Reporter, 469; Harlan v. McLaughlin, [Sup. Ct. Pa.,] 9 Reporter, 154; Snyder v. Christ, 39 Pa. St. 506.) The position we take is supported in Hanson v. Power, 8 Dana, (Ky.,) 91; Keeler v. Ullrich, 32 Mich. 88; Whitescarver v. Bonney, 9 Iowa, 480; and it seems to us more in accordance with reason to hold that a voluntary conveyance made to defraud creditors is void only as to prior and existing creditors, and to those designed to be defrauded by the conveyance. For instance, if a debtor dispose of his property with intent to defraud those to whom he expects to become immediately or soon indebted, this may be a fraud against them, which they may have the right to attack; but that is a special case, not this one. As Mrs. Thomas gave credit to her debtor in the status which he had after the voluntary conveyances were made, the conveyances are not void in law or in fact as to her. She is a creditor subsequent to the conveyance to the wife, and with full knowledge at the date of her note that the wife held the title. This conclusion dispenses with any discussion of the effect of the satisfaction of the judgment of Sheppard, or any inquiry as to the alleged lien under his mortgage. As the judgment of Mrs. Thomas was never a lien on the premises, she was not entitled to have the conveyances to Lucinda Perkins declared void, or the land ordered sold under her execution. The judgment of the district court will be reversed, and the case remanded with directions that judgment be entered upon the findings of fact in favor of plaintiff in error. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action brought by J. M. Thralls, sheriff of Sumner county, Kansas, against the board of county commissioners of that county, for fees, alleged to be due him for endeavoring to collect certain personal property taxes on tax warrants issued by the county treasurer. Judgment was rendered in the court below in favor of the defendant and against the plaintiff, who brings the case to this court. Counsel for plaintiff in error states the case as follows: “The facts upon which the controversy depends in this case were submitted, in the form of an agreed case, to the district court of Sumner county for its decision of the questions of law therein involved. These facts may be substantially stated as follows: “The county treasurer of Sumner county, in the month of January, 1880, duly issued and delivered to the plaintiff in error, as sheriff of said county, a number of personal tax warrants, in due form of law, directing him as such sheriff, to collect certain unpaid taxes for the year 1879. The plaintiff in error, as such sheriff’, faithfully and seasonably endeavored to collect said taxes, under and by virtue of said warrants, out of the goods and chattels of the delinquent taxpayers therein named; but after due and diligent search in said county was unable to find any property out of which to make said taxes, or any part thereof, or his fees as such sheriff, or any part thereof, for endeavoring to collect said taxes. In endeavoring to serve each of said warrants the plaintiff in error, as such sheriff, actually and necessarily traveled more than one mile, and the total number of miles actually and necessarily traveled in said county in endeavoring to serve all of said warrants was thirty-six hundred and five. The plaintiff in error, as such sheriff, duly returned said warrants to said county treasurer with his returns respectively indorsed thereon of ‘No property found/ and the number of miles traveled by him in endeavoring to serve said warrants respectively, together with his fees therefor as such sheriff.” Upon the hearing of the case, the district court decided in favor of the defendant in error, and rendered judgment against the plaintiff in error, and in favor of the defendant in error, for the costs' of the case, taxed at $5.30. The plaintiff in error complains of said decision as erroneous, insists that the. judgment of the district court should have beep in his favor for the full amount of his claim, and brings the case here for review. - The following provisions of the statutes are applicable to this case: “Sec. 92. All taxes on personal property that shall remain due and unpaid on the first day of January, or the first day of July, may be collected in the following manner: The county treasurer shall, between the tenth and fifteenth days of January and July, respectively, issue a warrant under his hand, directed to the sheriff of the county, commanding him to levy the amount of such unpaid taxes, and the penalty thereon, together with his fees for collecting the same, of the goods and chattels of the person to whom such taxes were assessed, and to pay the same to the county treasurer, and return such warrant within sixty days from the date thereof.” {Comp. Laws 1879, pp. 957, 958.) “Sec. 3. The sheriff of each county shall receive for his services the following fees, and none other: ... For every mile actually and necessarily traveled in serving any writ, process, order, venire, or notice, provided no mileage be charged when the distance does not exceed one, mile, ten ■cents; ... for collecting, or endeavoring to collect, personal taxes by warrants, the same fees as are allowed by law •on executions.” (Comp. Laws 1879, pp. 439, 440.) The only question involved in this case is, whether a sheriff is entitled to receive mileage fees for the miles he travels in endeavoring to serve a personal-property tax' warrant, where no property is found, and where the sheriff makes return of “No property found.” We must answer this question in the negative. We think it is substantially answered by the decisions in the cases of Comm’rs of Labette Co. v. Franklin, 16 Kas., 450, and Titus v. Comm’rs of Howard Co., 17 Kas., 363. The sheriff receives “ for collecting, or endeavoring to collect, personal taxes by warrants, the same fees as are allowed by law on executions,” “and none other;” and no fees for mileage are allowed by law to sheriffs on executions where no property is found. This last proposition is admitted by ■counsel for plaintiff in error, but still he claims that fees for mileage must be allowed on tax warrants as well where no property is found as where it is; for if not, then he claims that the words of the statute, “or endeavoring to collect,” must be useless and meaningless; Now, we think that the case of Titus v. The Commissioners, &c., ante, furnishes a .good illustration of where said words, “ or endeavoring to collect,” can have force and application, even where property may be found. Suppose that a tax warrant is issued and levied by the sheriff on the property of the supposed delinquent taxpayer, and he then enjoins the enforcement of the warrant, and shows that he has paid his taxes, or that the supposed taxes mentioned in the warrant are illegal: has not the sheriff in such a case been “endeavoring to collect personal taxes by warrant?” He is not bound to know that such taxes have been paid, or are void. He is bound, however, to know whether the supposed delinquent tax-payer has property subject to the warrant or to a valid tax warrant, and not to travel 3,605 miles in search of property where there is no property. The statute does not give fees for endeavoring to find property, but only endeavoring to collect taxes. And these taxes must be collected from the goods and chattels of the delinquent tax-payer. The sheriff is “ to levy the amount of such unpaid taxes, and the penalty thereon, together with.his fees for collecting the same, of the goods and chattels of the person to whom such taxes were assessed.” (See. 92, supra.) The statute does not contemplate the sheriff as “endeavoring to collect” the taxes from nothing, but only from the “goods and chattels” of the delinquent tax-payer. The sheriff may endeavor to find property if he chooses, but for that he receives no.fees; but if he finds the property, then he may endeavor to collect the taxes from it, and he is entitled to fees for doing that, whether he succeeds or not, provided any failure on his part is not from his fault. The judgment of the court below will be affirmed. All the Justices concurring.	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Larson, J.: The State of Kansas appeals on a question reserved the district court’s determination that Sherry Herman’s 2004 conviction under Mo. Rev. Stat. (2003) § 577.010 for driving while intoxicated could not be counted as a prior conviction under Kansas law in determining foe penalty for Herman’s current conviction for driving under the influence of alcohol (DUI) under K.S.A. 2010 Supp. 8-1567. Herman cross-appeals the district court’s ruling on the suppression motion she filed, which was denied. She also argues foe district court erred in refusing to apply foe “look-back” provisions of K.S.A. 2011 Supp. 8-1567(j)(3) to her case and, therefore, improperly included a 1991 diversion for DUI in the sentence/penalty determination for her current DUI conviction. We deny the State’s appeal because the question reserved is not an issue of statewide interest important to the correct and uniform administration of criminal law in Kansas. We accept jurisdiction of Herman’s cross-appeal but hold probable cause existed to arrest Herman for violation of K.S.A. 2010 Supp. 8-1567. And, the district court correctly refused to give retroactive effect to the provisions of K.S.A. 2011 Supp. 8-1567(j)(3) limiting prior convictions to those occurring on or after July 1, 2001. Factual Background and Legal Proceedings At approximately 1:30 a.m. on March 11, 2011, Kansas City Police Officer Kenneth Garrett observed a vehicle speeding on Kaw Drive. Pulling behind the vehicle, Garrett clocked the vehicle moving at 62 mph in a 45-mph zone. He also observed the vehicle drift from side to side within its lane, although the vehicle did not leave the lane of traffic. Garrett activated his emergency lights to stop the vehicle. The vehicle traveled an additional 2 or 3 blocks before stopping, but Garrett attributed the driver’s delay as an attempt to find a safe place to stop. After the vehicle stopped, Garrett contacted the driver, later identified as Herman; he noted that Herman’s eyes were glazed, bloodshot, and wateiy. When asked for her license and registration, Herman acted slowly and uncertainly. Garrett asked Herman whether she had been drinking and she admitted that she had consumed one drink. Garrett detected a strong odor of alcohol from Herman’s person when she spoke. Herman’s speech was thick and slurred. Garrett requested Herman to exit her car. She complied with difficulty. Garrett performed the horizontal gaze nystagmus (HGN) test on Herman. Garrett asked Herman to perform the one-leg-stand test. Herman declined, stating that she would be unable to perform the test because she was not coordinated. Garrett decided not to pursue the walk-and-turn test because there was no good line to use, Herman was wearing high heels, and she claimed to lack coordination. Garrett then asked Herman to submit to a preliminary breath test (PBT), advising her that she could refuse but would then be subject to a fine and arrest. Herman took the PBT. The results indicated a breath-alcohol concentration above .08. Garrett arrested Herman for DUI. Before driving to tire jail, Garrett went to Herman’s vehicle to retrieve her purse and discovered a QuikTrip cup containing a mixed drink and a half-full bottle of vodka. Garrett transported Herman to tire Wyandotte County Jail where he reviewed the implied consent advisory with her, conducted the 20-minute deprivation period, and properly administered the Intoxilyzer breath test. The test result demonstrated a breath-alcohol concentration of .128 grams of alcohol per 210 liters of breath. The State charged Plerman with DUI (fourth or subsequent, nongrid, nonperson felony), transportation of an open container, and speeding. Herman moved to suppress the results of both the PBT and the Intoxilyzer evidentiary breath test. After a hearing, the district court suppressed the PBT results but found sufficient evidence to support probable cause to arrest for DUI and, therefore, refused to suppress the evidentiary breath test results. The case went to a bench trial on the evidence presented at the preliminary hearing, the videos of the traffic stop, and the eviden-tiary breath test at the jail. The district court convicted Herman of all three charges. At sentencing on October 11,2012, the State presented evidence of three prior alcohol-related convictions; a 1991 diversion from a Kansas DUI charge (No. 91 TR 1118), a 1996 municipal court of Kansas City, Kansas, conviction of DUI citation (No. 2091621), and a 2004 State of Missouri conviction for driving while intoxicated in violation of Mo. Rev. Stat. § 577.010 (No. 03 CR 84580). Herman challenged by prior motion, responded to by the State, the inclusion of these three prior convictions as a part of her criminal history. The district court excluded the 1996 municipal court conviction because Herman was clearly not represented by legal counsel during the legal proceedings. The court also excluded the 2004 Missouri conviction for driving while intoxicated, holding Mo. Rev. Stat. § 577.010 was not a comparable offense to the Kansas DUI statute, K.S.A. 2010 Supp. 8-1567. The court rejected Herman’s request for retroactive application of K.S.A. 2011 Supp. 8-1567(j)(3) and included the 1991 DUI diversion in her criminal history “prior convictions” calculation. Accordingly, after excluding the 1996 and 2004 convictions, the district court concluded that Herman’s current DUI conviction should be counted as her second, a class A, nonperson misdemeanor under K.S.A. 2010 Supp. 8-1567(e). The court imposed 12 months’ probation, including 20 days’ jail time and a $1,500 fine. Herman was ordered to pay a $200 fine for transporting an open container and a $100 fine for speeding. On October 22, 2012, the State filed a notice of appeal based on a question reserved pursuant to K.S.A. 2013 Supp. 22-3602(b)(3). Previously, upon learning of the court’s ruling on the prior convictions issue, the State informed the court and the defendant that it intended to appeal. The State’s notice of appeal also states it appeals “from a final order of the lower court made on October 11, 2012, granting the defendant’s motion objecting to the use of a prior Missouri DUI conviction in determining whether the defendant would be sentenced as a first, second, third, fourth or subsequent offender under K.S.A. 8-1567.” This ruling is in effect the same legal question as that appealed from by the State as a question reserved under K.S.A. 2013 Supp. 22-3602(b)(3) and will be considered by our panel as such. On November 22, 2012, Herman filed a notice of cross-appeal, stating it was filed “pursuant to Kan. Sup. Ct. Rule 2.02; K.S.A. 22-3606; & K.S.A. 60-2103(h).” The notice specifically stated the defendant cross-appeals the following issues: “(1) [T]he failure to sustain Defendant’s objections to prior convictions occurring prior to July 1, 2001 for use in sentencing; (2) the denial of Defendant’s motion to suppress based on lack of probable cause to arrest; (3) the denial of Defendant’s motion in limine to prohibit admission of evidential breath test and the consideration of such evidence; and (4) tire conviction of Defendant.” Analysis of the State’s Appeal The State’s suggested issue on appeal is: The district court committed error when it refused to count Her-mans prior Missouri conviction for violation of Mo. Rev. Stat. § 577.010(a) in determining whether Herman was a first, second, third, fourth, or subsequent offender under K.S.A. 2010 Supp. 8-1567(o)(l) and (2). Because of the deletion in 2012 of the precise statutory language upon which this question reserved appeal is predicated, the issue we must first consider is: Is the answer to a question reserved still a matter of statewide interest important to the correct and uniform administration of criminal law in Kansas when it (1) would be based on language that has been repealed; (2) would be unlikely to govern any currently pending matter; (3) would, in effect, be an advisory opinion; (4) would only be of academic interest; and (5) would not provide helpful precedent? Our issues on appeal involve jurisdiction and statutory construction. Whether jurisdiction exists is a question of law over which our scope of review is unlimited. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012). Likewise, interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if it is taken in the manner prescribed by statute. State v. J.D.H., 48 Kan. App. 2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. 48 Kan. App. 2d at 458. The State’s authority to appeal in criminal cases is limited by statute. An appeal to this court may be taken by the prosecution as a matter of right after a final judgment in the district court in the following cases: “(1) From an order dismissing a complaint, information or indictment; “(2) from an order arresting judgment; “(3) upon a question reserved by tire prosecution; or “(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime.” K.S.A. 2013 Supp. 22-3602(b). We do not reach the issue of whether the State could have appealed under K.S.A. 22-3504 as it was not raised on appeal. We are taught by State v. Tremble, 279 Kan. 391, Syl. ¶ 1, 109 P.3d 1188 (2005), that “[q]uestions reserved by the State in a criminal prosecution, under K.S.A. 2003 Supp. 22-3602(b)(3), will not be entertained on appeal merely to demonstrate whether error has been committed by the trial court. Generally, this court has accepted appeals on questions reserved by the State where the appeals involve issues of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes. We have uniformly declined to entertain questions reserved in which the resolution of tire question would not provide helpful precedent.” Included in the instructive Supreme Court case of Berreth, which commented in detail on numerous cases where an appeal was sought on a question reserved, is the following: “To state it clearly and simply, an appellate court’s answer to a State’s question reserved has no effect on tire criminal defendant in the underlying case. [Citations omitted.]” 294 Kan. at 123. Berreth further sets forth the rules that the State cannot expand its elected statutory basis for the appeal and the appellate court cannot sua sponte select tire jurisdictional basis for an appeal by the State. 294 Kan. at 116-17. With the rules for appeals by the State set forth, we turn to the State’s arguments as to the exclusion of Herman’s prior Missouri conviction in determining the conviction level of her current DUI conviction. The 2004 Missouri conviction was for “operating] a motor vehicle in an intoxicated or drugged condition.” Mo. Rev. Stat. § 577.010. The State argues this conviction should have been determined to be a prior conviction and used to determine the conviction level and penalty of Herman’s current Kansas DUI offense. In Kansas, the State may obtain a DUI conviction mainly by one of two methods (others do exist but are not applicable here): (1) establish the driver operated or attempted to operate a motor vehicle when the driver’s blood- or breath-alcohol concentration equals or exceeds .08, or (2) establish that the driver operated or attempted to operate a motor vehicle under the influence of alcohol or drugs to an extent that the person was incapable of safely operating the vehicle. K.S.A. 2010 Supp. 8-1567(a)(l), (3). K.S.A. 2010 Supp. 8-1567 not only establishes the elements of the Kansas DUI offense but also sets the penalties for the offense. Based on the number of previous offenses, the statute provides a graduated penalty scheme. See K.S.A. 2010 Supp. 8-1567(d)-(g). For purposes of this appeal, K.S.A. 2010 Supp. 8-1567(o) defines what convictions are to be used to assess the proper penalty. “(o) For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section: (1) ‘Conviction’ includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section; (2) ‘conviction’ includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution; (3) any convictions occurring during a person’s lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” K.S.A. 2010 Supp. 8-1567(o)(l)-(3). K.S.A. 2011 Supp. 8-1567(j)(2) contains the same language as K.S.A. 2010 Supp. 8-1567(o)(2), with “ ‘conviction’ includ[ing] being convicted of a violation of a law of another state . . . which prohibits the acts that this section prohibits The language was changed in K.S.A. 2011 Supp. 8-1567(j)(3) to delete the prior language in K.S.A. 2010 Supp. 8-1567(o)(3) that “any conviction occurring during a person’s lifetime shall be taken into account when determining the sentence to be imposed . . .” to the 2011 provision, which states: “(3) only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” K.S.A. 2011 Supp. 8-1567(j)(3). While the language in 2010 and 2011 remains the same as to what constitutes an out-of-state offender, these provisions were completely abrogated and deleted by die 2012 Kansas Legislature in the following manner: “(j) (i) For tire purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section: fl-)-iGonviction-mcludcs-bcmg-convicted-&f-a-violation-of-diis-scctio-n-or-eatei,mg »ite-a-divcrstor)ragreeBient-irHfeu-of-fm’thei'-ei’iminal proceedings on a complaint alleging a^wdbtien of this section; (2) ‘conviction’ includes bcing-eonvictcd of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in-lieu-of further erimrnal-proeocdings-m-a-case-aheging-a-violation-of-sudirkwrordinanee-or-rcs-olution; (3) only convictions occurring on or after July 1, 2001, shall be taken-into-account-whcn-determmmg-tlic-sentence-to-bc-imposed--for-a-first, second, third, fourth or subsequent offender; (1) Convictions for a violation of this section, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits, or entering into a diversion agreement in lieu of further criminal pro ceedings on a complaint alleging any such violations, shall be taken into account, but only convictions or diversions occurring on or after July 1, 2001. Nothing in this provision shall be construed as preventing any court from considering any convictions or diversions occurring during the persons lifetime in determining the sentence to be imposed ivithin the limits provided for a first, second, third, fourth or subsequent offense; (2) any convictions for a violation of the following sections occurring during a persons lifetime shall be taken into account: (A) Refusing to submit to a test to determine the presence of alcohol or drugs, section 2, and amendments thereto; (B) driving a commercial motor vehicle under the influence, KS.A. 8-2,144, and amendments thereto; (c) operating a vessel under the influence of alcohol or drugs, KS.A. 32-1131, and amendments thereto; (D) involuntary manslaughter while driving under the influence of alcohol or drugs, KS.A. 21-3442, prior to its repeal, or subsection (a)(3) of KS.A. 2011 Supp. 21-5405, and amendments thereto; and (E) aggravated vehicular homicide, KS.A. 21-3405a, priorto its repeal, or vehicular battery, K S.A. 21-3405b, prior to its repeal, if the crime was committed while committing a violation of KS.A. 8-1567, and amendments thereto; (3) ‘conviction’ includes: (A) Entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of a crime described in subsection (i)(2); (B) conviction of a violation of an ordinance of a city in this state, a resolution of a county in this state or any law of another state which would constitute a crime described in subsection (i)(l) or (i)(2); and (C) receiving punishment under the uniform code of military justice or Kansas code of military justice for an act which was committed on a military reservation and ivhich would constitute a crime described in subsection (i)(l) or (i)(2) if committed off a military reservation in this state; (4) multiple convictions of any crime described in subsection (i)(l) or (i)(2) arising from the same arrest shall only be counted as one conviction.” L. 2012, ch. 172, sec. 19; see K.S.A. 2012 Supp. 8-1567(i)(l)-(4). The 2013 Kansas Legislature made no change in the above provision except to add the following language to K.S.A. 2013 Supp. 8-1567(i)(2): “(E) aggravated battery as described in subsection (b)(3) of KS.A. 2012 Supp. 21-5413 and amendments thereto,” and renumber the prior subsection (E) to (F). L. 2013, ch. 122, sec. 6. It is clear that an opinion by this panel at this time on the legal effect of K.S.A. 2010 Supp. 8-1567(o)(2) would not have any binding precedential effect on the different language as to what constitutes a “conviction” from another state as is now set forth in K.S.A. 2013 Supp. 8-1567(i)(3). Based on the rules previously set forth and specifically enumerated in Berreth, an answer by this panel to the question reserved would have no effect on Herman’s conviction and sentence. And, although the applicable 2012 amendment was in existence when the State’s brief was filed on Februaxy 14, 2013, there was no showing that the requested opinion would govern any then existing case or cases. Any opinion that we might render on the question reserved might be of academic interest but would be advisory only. Our long-time general rule is that we do not render advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). With the question reserved presented to us no longer of statewide interest because of the amended provisions of K.S.A. 2012 Supp. 8-1567(i)(3), the State’s appeal must be dismissed. See Ber-reth, 294 Kan. at 122-23 (relying in part on In re E.F., 41 Kan. App. 2d 860, 861-62, 205 P.3d 787 [2009]). The holding we reach on this issue does not suggest that difficult legal questions do not exist as to what convictions from another state, ordinances of a city, or resolutions of a county count as convictions in a Kansas DUI prosecution of a violation under the applicable version of K.S.A. 8-1567. This is an area which would benefit from legislative clarification. Analysis of Herman’s Cross-Appeal Does jurisdiction exist to consider Herman’s cross-appeal? The State filed its notice of appeal on October 22, 2012, within 14 days of sentencing on October 11, 2012. Herman did not file a notice of appeal within 14 days of sentencing. But, she filed her notice of cross-appeal within 21 days of the State’s filing. Because the Kansas Code of Criminal Procedure does not provide a precise mechanism for cross-appeals in criminal cases, our court issued a show cause order on November 28, 2012, as to why the cross-appeal should not be dismissed. Both parties responded. We provisionally retained jurisdiction, ordering the parties to brief the jurisdictional question. As was earlier stated, the right to appeal is entirely statutoiy and is not contained in the United States or Kansas Constitutions. Subject to limited exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. 48 Kan. App. 2d at 458. An appellate court may not properly exercise jurisdiction over an appeal that has not been taken in conformity with that statutory grant. An appellate court has the duty to question its jurisdiction on its own initiative when it appears to lack jurisdiction. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008). Appellate jurisdiction in criminal cases is granted by K.S.A. 22-3601 et seq. K.S.A. 2013 Supp. 22-3602(a) provides: “[A]n appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court and upon appeal any decision of the district court or intermediate court made in the progress of the case may be reviewed.” However, K.S.A. 2013 Supp. 22-3608(c) states: “For crimes committed on or after July 1, 1993, the defendant shall have 14 days after die judgment of the district court to appeal.” K.S.A. 22-3606 provides: “Except as otherwise provided by statute or rule of the supreme court, the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases.” There is a specific provision in K.S.A. 2013 Supp. 60-2103(h) governing cross-appeals which reads: “When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which such appellee complains, the ap-pellee shall, within 21 days after the notice of appeal has been served on such appellee and filed with the clerk of the trial court, give notice of such appellee’s cross-appeal.” The interaction of these various provisions present a question of statutory interpretation over which an appellate court has unlimited review. Dale, 293 Kan. at 662. The State concedes there is no statute or Supreme Court rule that specifically addresses a criminal defendant’s right to cross-appeal. But, the State contends the requirement that the criminal defendant must appeal within 14 days under K.S.A. 2013 Supp. 22-3608(c) controls over allowing a defendant to cross-appeal by applying civil procedure rules as specified by K.S.A. 22-3606. But, as Herman has argued, Kansas courts have implicitly recognized the right to cross-appeal in criminal proceedings by noting a defendant’s failure to take a cross-appeal of an issue adverse to that party. See State v. Diaz-Ruiz, 42 Kan. App. 2d 325, 330, 211 P.3d 836 (2009) (“Preliminarily, we note that neither defendant cross-appealed the district court’s conclusion that the initial stop was justified based on [trooper’s] concerns that the defendants’ ladder was not properly secured. Thus, that issue is not before us on appeal.”); State v. Rupp, 26 Kan. App. 2d 595, 597, 992 P.2d 236 (1999) (“Unfortunately, for the State, no cross-appeal has been filed, and we are disinclined to consider Rapp’s sentence to be illegal.”), rev. denied 269 Kan. 939 (2000). The use of the term “cross-appeal,” however, does not necessarily require the application of K.S.A. 2013 Supp. 60-2103(h). The reference to cross-appeal in these cases may only suggest that the defendant could have filed a separate direct appeal from sentencing but failed to do so. See State v. Hess, 180 Kan. 472, 478, 304 P.2d 474 (1956) (“ ‘This may have merit for the criminal code speaks only of appeals and does not mention cross-appeals. Let us assume that the State’s position is correct.’ ”). Nevertheless, a few unpublished decisions of this court have actually cited to K.S.A. 60-2103(h) in a criminal proceeding, though it is doubtful that tire jurisdictional issue was properly presented to the court in these cases. See State v. McMackin, No. 109,022, 2013 WL 3970210, at 4 (Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan. 1206 (2014); State v. Lornes, No. 103,031, 2011 WL 4716338, at 5 (Kan. App. 2011) (unpublished opinion). With appellate rights being strictly statutory, decisions of other jurisdictions are of questionable value. But, Byndom v. State, 344 Ark. 391, 404, 39 S.W.3d 781 (2001), recognized the use of civil procedure rules to govern cross-appeals in criminal cases even though criminal procedure rules did not authorize a cross-appeal. Decisions from Florida, Georgia, Michigan, and Wisconsin are similar, but in People v. Goodfriend, 100 A.D.2d 781, 782, 474 N.Y.S.2d 65 (1984), New York refused to consider a criminal defendant’s arguments because the appeals statute provided no mechanism for a cross-appeal. It would seem that the right to cross-appeal is a part of the general statutory right of appeal in both civil and criminal cases. But there remains a question as to the time frame or procedure under which a cross-appeal must be exercised. This question is best resolved by applying K.S.A. 22-3606 which incorporates the rules of civil procedure into' the criminal appellate procedure. Our Supreme Court referenced other portions of K.S.A. 60-2103 in criminal proceedings under the authority of K.S.A. 22-3606. See State v. Long, 294 Kan. 939, 940, 281 P.3d 176 (2012) (referencing K.S.A. 60-2103[b] for content of notice of appeal in a criminal proceeding); Berreth, 294 Kan. at 127-28 (same). It is logical to us that the 21-day time within which a cross-appeal must be filed under K.S.A. 2013 Supp. 60-2103(h) should be applied in our case. Despite the State’s argument to the contrary, the reasons supporting additional time to file a cross-appeal are equally applicable to both civil and criminal appeals. Although the prosecutor in our case had stated the intention to appeal on a question reserved, Herman may have been willing to accept the district court’s ruling and decided that economics did not justify an appeal. But, once the State’s appeal was filed, Herman was faced with defending the State’s appeal, and the filing of a cross-appeal to challenge adverse rulings in the district court became the obvious procedure to follow. We hold the provisions of K.S.A. 22-3606. authorize a criminal defendant facing an appeal by the State to file a cross-appeal as allowed under K.S.A. 2013 Supp. 60-2103(h). Herman’s cross-appeal filed within 21 days of the State’s notice of appeal provides us with jurisdiction over the cross-appeal. We further note that K.S.A. 2013 Supp. 22-3602(c) states: “Procedures for appeals by-the prosecution enumerated in subsection (b) shall be as provided in supreme court rules.” A subsection (b) appeal is exactly what we are considering in this case. However, our search of the Supreme Court rules has not revealed the existence of any such rules, nor have any been pointed out to us by counsel. The absence of any such rules suggested by subsection (c) does not have any effect on the decision made above. With jurisdiction established, we reach and consider the two issues Herman raises on her cross-appeal. Did the district court err in refusing to suppress the results of Herman’s Intoxilyzer test because Officer Garrett lacked probable cause to arrest her for DUIP Herman contends the district court committed reversible error in refusing to grant her motion to suppress the evidentiary breath test results. She argues that without the preliminary breath test results, Officer Garrett lacked probable cause to arrest her for DUI. Appellate review of the district court’s ruling on a motion to suppress is bifurcated. The district court’s findings are extended deference and reversed only when they are not supported by substantial competent evidence. The ultimate legal conclusion regarding suppression based on those facts is subject to unlimited review. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). The facts supporting the probable cause determination are based on the testimony of Garrett and the in-car video of the traffic stop. As a result, there is little dispute regarding the underlying facts. Herman was stopped for speeding. When Garrett approached the vehicle, he noted Herman’s eyes were glazed, bloodshot, and watery. When Herman spoke, her speech was thick and slurred. Her movements were slow and uncertain while she sought to produce her license and proof of insurance. Garrett detected a strong odor of alcohol coming from her person. Herman admitted to having one drink. When asked, Herman refused the one field sobriety test Garrett offered, claiming she was not coordinated. Garrett did not pursue the walk-and-turn test because Herman was wearing high heels and there was no good line to use. Garrett requested Herman to submit to a preliminary breath test, and Herman complied. On appeal, Herman cites Sloop v. Kansas Department of Revenue, 296 Kan. 13, 290 P.3d 555 (2012), and City of Norton v. Wonderly, 38 Kan. App. 2d 797, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008), as dispositive of the probable cause determination in this case. Both are distinguishable from our case. In Sloop, the court noted that the probable cause determination occurs at the time of arrest. Sloop was stopped for a tag light violation, not a driving violation such as speeding. As -the officer fol lowed Sloop for 8 or 10 blocks, Sloop committed no traffic violations. Sloop did not slur his speech, did not fumble for his license, and did not have difficulty exiting his vehicle. The court refused to consider the results of the field sobriety tests because they occurred after the arrest. 296 Kan. at 23. Similarly, in Wonderly, the field sobriety tests were not conducted until after the arrest. Prior to the arrest, the officer had information from an identified caller that Wonderly’s truck was “swerving, spinning its tires, and traveling at a high rate of speed.” 38 Kan. App. 2d at 799. But when the officer pulled behind the identified truck and followed it for 3 minutes, he observed no traffic infractions. Wonderly did not fumble for his license and did not stumble when exiting his truck. Wonderly’s speech was not slurred. This court concluded that these circumstances did not constitute probable cause to arrest for DUI and noted that the officer apparently believed further information was necessary because he testified that he relied on the circumstances at the stop and Won-derly’s performance on the sobriety tests at the sheriffs department to form probable cause to request an evidentiary breath test. 38 Kan. App. 2d at 808. The Sloop opinion, 296 Kan. at 20, quotes from Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656-57, 256 P.3d 845 (2011), for our definition of probable cause: “ ‘Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. [Citation omitted.] Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. [Citation omitted.] Probable cause is determined by evaluating the totality of the circumstances. [Citation omitted.] As in other totality of the circumstance tests, there is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other. [Citations omitted.]’ ” The facts of our case are more closely analogized to State v. Huff, 33 Kan. App. 2d 942, 111 P.3d 659 (2005), which sustained a conviction (requiring proof beyond a reasonable doubt) for DUI without breath test results. The facts reported in Huff involved a sheriff s deputy observing Huff s vehicle traveling 77 mph in a 55- mph zone and driving onto the shoulder twice. The deputy noted a strong odor of alcohol from Huff when he contacted him. Huff refused to look at the deputy, and the deputy had difficulty understanding Huff. Huff spoke with slurred speech. Huff had bloodshot eyes and fumbled to produce his driver s license. Huff refused to answer when the deputy asked if he had been drinking. Huff refused to submit to an HGN test and was not asked to perform any other field sobriety tests. The deputy did acknowledge that Huff had no difficulty exiting his vehicle or walking to the patrol car after being handcuffed. In response to Huff s challenge to the sufficiency of the evidence supporting his conviction for DUI, this court stated: “Viewed in a light most favorable to the State, Huff s speeding and driving off the roadway, his slurred speech, bloodshot eyes, fumbling to find his driver’s license, and odor of alcohol all form a substantial basis for his conviction.” 33 Kan. App. 2d at 945-46. If these facts were sufficient to support a finding beyond a reasonable doubt that Huff was under the influence of alcohol to an extent that he was incapable of operating a motor vehicle safely, the facts of our case, which are veiy similar, are clearly sufficient to support a probable cause determination, which is a significantly less stringent eviden-tiary standard. Herman argues some of the district court’s findings are contradicted by the video. We do not find this to be so. The findings were primarily based on Officer Garrett’s testimony, and the video is not conclusive. The findings by the district court are amply supported by substantial competent evidence. Herman’s arguments concerning the evidence essentially asks us to reweigh the evidence, which is not our function. See State v. Garza, 295 Kan. 326, 335, 286 P.3d 554 (2012); State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). Finally, Herman finds fault with the district court’s ruling for its failure to point to several positive factors in her favor, citing State v. Edgar, 296 Kan. 513, 525, 294 P.3d 251 (2013). The actual dis-positive holding of Edgar is: “When a law enforcement officer instructs a driver that he or she has no right to refuse a preliminary breath test, the officer has contradicted the statutory pro visions that malee a refusal to take the test a traffic infraction under K.S.A. 2010 Supp. 8-1012(d). This cannot be considered substantial compliance with the statute, nor does it equate to a failure to give the notice under K.S.A. 2010 Supp. 8-1012(c).” 296 Kan. 513, Syl. ¶ 4. Edgar’s central issue was an appeal from “the denial of his motion to suppress because the investigating officer lacked reasonable articulable suspicion to request a PBT and his consent to the PBT was involuntary.” 296 Kan. at 519. The Edgar opinion cites to State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008), for requiring that the “whole picture” must be taken into account when evaluating whether there is reasonable suspicion for requesting a PBT. 286 Kan. at 890.” 296 Kan. at 525. Herman translates this language to suggest she should have been given credit in the district court’s findings for her ability to stop her vehicle, use of signals to change lanes, calm demeanor, and wearing high-heeled shoes. A construction of Edgar to require the district court to remark on every circumstance of normalcy would lead to lengthy district court findings. In our case, Herman’s argument that such facts should be included suffers from a logical fallacy. Just because the inability to stop a vehicle properly, the failure to use turn signals to indicate a lane change, and dramatic mood swings are potential signs of intoxication; the absence of those factors is not necessarily a sign of sobriety. Furthermore, the fact that Herman was wearing high heels might provide some mitigation in poor performance on field sobriety tests involving balance, if she had taken the tests and failed. But, the video of the stop clearly showed that Herman refused the tests without referring to her shoes as a reason for the refusal; she simply stated she lacked coordination. Under these circumstances, the district court was not required to specifically mention these facts in arriving at its suppression ruling. Herman’s argument lacks persuasive force. The facts supporting the suppression ruling were based on substantial competent evidence presented at the suppression hearing. The facts found by the district court were sufficient to provide probable cause to arrest Herman for DUI. The district court did not err in refusing to suppress the results from Herman’s eviden-tiary breath test. Did the district court err in refusing to give retroactive effect to KS.A. 2011 Supp. 8-1567(j)(3), limiting prior convictions to those occurring on or after July 1, 2001? Herman’s last issue in this appeal concerns the district court’s inclusion of her 1991 diversion in her criminal history for purposes of determining whether her current DUI conviction constitutes her first, second, third, or fourth DUI conviction. Herman advocates for the application, to her benefit, of K.S.A. 2011 Supp. 8-l567(j)(3) which became effective July 1, 2012, and limits tire prior convictions used to calculate the conviction level and the sentencing penalty for DUI convictions to those convictions occurring on or after July 1, 2001. If the 2011 statutory amendment applies to Herman, the district court should not have counted her current DUI 1991 diversion and her current conviction would be considered her first. We have earlier set forth the statutory provision in issue, but it is as follows: “(3) only convictions occurring on or after July 1,2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” K.S.A. 2011 Supp. 8-1567(j)(3). Herman raises multiple arguments. She contends the plain language of the statutory amendment indicated that tire amendment should be applied prospectively to any sentencing occurring after the effective date of the amendment regardless of die date of the offense. Alternatively, she contends that the statutoiy amendment should be given retroactive application because it is procedural in nature, not substantive. She contends that the statutory amendment, taken in the context of the Act in which it was promulgated, demonstrates the Kansas Legislature’s intent for the change to be applied retroactively. She contends that failing to apply the amendment retroactively will lead to an absurd result not intended by die legislature. She further contends that retroactive application of die amendment does not violate the Ex Post Facto Clause of the United States Constitution because it does not disadvantage her. Herman acknowledges that most of these arguments have been resolved against her in previous decisions by this court. See State v. Reese, 48 Kan. App. 2d 87, 283 P.3d 233 (2012), rev. granted October 1, 2013 (argued to the Supreme Court on January 23, 2014). As our Supreme Court’s decision will ultimately decide this issue, judicial economy precludes it from being further discussed here. We realize Reese is not of precedential value while pending on review by our Supreme Court, but we are in agreement with and adopt all of its language and reasoning along with numerous other Court of Appeals decisions reaching the same result. As such, we hold that K.S.A. 2011 Supp. 8-1567(j)(3) cannot be applied retroactively and applies only to DUI violations committed on or after the 2011 effective date of the statutoiy amendment. It does not apply to Herman’s 1991 diversion which was correctly counted as a prior conviction in determining the conviction level and sentencing penalty for her DUI conviction. In summary, we have jurisdiction over Herman’s cross-appeal but affirm the district court on the two issues she raises. Appeal dismissed and cross-appeal affirmed.	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The opinion of the court was delivered by Dawson, C. J.: This was an action based upon an alleged oral contract to renew a policy of fire insurance. The pertinent facts were developed by the pleadings. Defendant is a mutual fire, hail and tomado insurance company organized and governed by article 10 of the insurance code (G. S. 1935, 40-1001 et seq., as amended by G. S. 1941 Supp. 40-1027). In his original petition, which was filed on August 21, 1940, plaintiff alleged that he was the owner of a quarter section farm in Shawnee county on which was a barn and other buildings which had been insured by defendant under a policy which expired on April 23, 1940. A copy of that policy was attached to plaintiff’s petition. Plaintiff alleged that on April 10, 1940, about two weeks prior to the expiration of the policy, one Paul M. Lyttle, defendant’s agent, solicited plaintiff to renew the insurance for an additional year from the date of its expiration; and agreeably thereto plaintiff signed an application for such insurance and delivered it to Lyttle— “And entered into an agreement with said agent of the defendant that said policy of insurance should be renewed or reissued upon its expiration for the further period of one year in consideration of the amount of the premium for such insurance which plaintiff agreed to pay and said agent of the defendant agreed to accept at wheat harvest time of the year 1940.” It was further alleged that on May 14, 1940, plaintiff paid said Lyttle the sum of five dollars to apply on the insurance premium, but no renewal policy was issued by defendant, and plaintiff’s barn was burned on May 16, 1940. Plaintiff alleged that notice and proof of loss were furnished in accordance with the terms of the policy which had expired and which defendant through its agent- had agreed to renew. Judgment for $1,100 for the loss of the barn was prayed for. The policy attached to the petition under which the barn had been insured for the previous year, designated exhibit A, and which was attached to the petition to show the kind of policy contract plaintiff allegedly had bargained for, covers seven pages of the abstract, some terms of which may require attention as we proceed. In compliance with a motion of defendant to make his petition definite and certain, plaintiff amended it by alleging that his written application for renewal insurance had been delivered to Lyttle and that plaintiff had no copy of it, and that the agreement between plaintiff and Lyttle about the renewal of the insurance had been oral, and that their further agreement that payment of the premium would be made and accepted at harvest time was oral also. Plaintiff further amended his petition by alleging that the terms of his written application for renewal insurance were as shown in the exhibit A attached to plaintiff’s petition. These amendments having been made to plaintiff’s petition, defendant interposed a general demurrer which the court sustained on April 19, 1941. With leave of court plaintiff filed a third amend ment to his petition in which he alleged that at the time defendant executed the policy as shown in exhibit A and at the time the oral contract for renewal of the insurance was made between plaintiff and defendant’s' agent Lyttle, defendant was authorized to enlarge its corporate functions as prescribed in section 1 of chapter 253 of the Laws of 1937, G. S. 1941 Supp. 40-1027; that the policy, exhibit A, was a standard farm insurance policy such as used by stock fire insurance companies authorized to do business in Kansas; that the policy exhibit A had been executed prior, to the payment of the premium in full, that the unpaid balance had been carried upon open account by Lyttle as agent for defendant, and that plaintiff had paid the balance of the premium on exhibit A (the expired policy) after it had been issued, and that— “The defendant is estopped to deny the authority of said agent to accept payments for the renewal of said policy upon the same or a similar basis.” Plaintiff also alleged that in reliance on the agreements of Lyttle, as defendant’s agent, plaintiff had failed to procure other insurance on the property concerned for the period covered by the oral contract of renewal, to wit, April 23,1940, to April 23,1941. Plaintiff also alleged that the statute of 1937, G. S. 1941 Supp. 40-1027, as construed by commissioner of insurance, enabled mutual insurance companies to extend their corporate business to the same scope as stock insurance companies, and that the form of standard farm policy* issued by defendant had been approved by that officer. Plaintiff also alleged— “That since the compliance of the defendant with the provisions of section 40-1027 [of G. S. Supp. 1941] and its authorization to do business thereunder, the defendant is in fact an insurance company operating for profit and is no longer doing business as a mutual fire and tornado insurance company within the contemplation of the laws of this state exclusive of said section 40-1027.” Defendant filed a motion to strike some recitals from the third amended petition as inconsistent with certain of its allegations of fact, also because of their redundancy as conclusions of law. The trial court sustained that motion, and thereafter defendant filed a demurrer to the third amended petition on the ground that it did not state a cause of action. The trial court sustained that demurrer and plaintiff appeals. The correctness of that ruling is the sole question open to our review. Appellant first propounds the legal question whether the favored position of a mutual insurance company conferred by statute and repeatedly -sustained by this court still exists when such mutual company has accumulated a bona fide net surplus of $100,000 and is thereby authorized to enlarge and expand its corporate business as authorized by the statute of 1937 (G. S, 1941 Supp. 40-1027). We think this question must be answered in the affirmative. The purpose of the statute of 1937 was to enlarge the corporate powers of such mutual insurance companies as had conducted their corporate affairs so successfully that they had accumulated a surplus of $100,000. The statute nowhere intimates that the other corporate powers and privileges theretofore conferred by statute on mutual companies were to be curtailed in the slightest degree. In Reser v. Southern Kansas Mutual Ins. Co., 150 Kan. 58, 63, 91 P. 2d 25, it was said: “Mutual fire insurance companies which were originally founded as a matter of legislative policy to enable farmers to obtain insurance at low cost have always been regarded as favorites in Kansas law. After flourishing for a generation, whether they are now fundamentally different' from other fire insurance companies may fairly be questioned; but if not, the legislature alone can change the state’s policy toward them. Their favored status has been written too deeply and too frequently to change that policy by judicial decree. (Lohr v. Farmers Alliance Ins. Co., 144 Kan. 776, 778, 62 P. 2d 837.)” Plaintiff next projects the question whether a parol contract of a mutual insurance company to renew its insurance obligation as evidenced by the terms of the prior policy it had issued to plaintiff for the preceding year is binding although the renewal policy was not issued nor the premium paid, but where the agent of the company agreed that the payment of the premium could be deferred until harvest time. In Kennedy v. Farmers Alliance Ins. Co., 127 Kan. 768, 275 Pac. 214, which was an action to recover on a fire insurance contract issued by a mutual fire insurance company, this court said: “These companies are organized by property owners who desire mutually to insure the property of their members. Before a person can have his property insured by such a company he must become a member of it and join with other members in their mutual obligations. In a sense he is both the insurer and the insured. ... No policy of insurance is issued except on written application.” .(p. 770.) In Lohr v. Farmers Alliance Ins. Co., 144 Kan. 776, 62 P. 2d 837, where a recovery for a fire loss was sought against a mutual insurance company, predicated on an alleged oral agreement between plaintiff and defendant’s agent who waived a provision of the bylaws restricting the insured’s right to procure additional insurance from another company, this court said: “The first fact to be noted is that plaintiff’s contract was not with a commercial insurance company, but with a mutual company. For a thorough treatment of the fundamental distinctions between such policies and the principles underlying the distinctions, see Akers v. Farmers Alliance Ins. Co., 118 Kan. 241, 234 Pac. 956; Kennedy v. Farmers Alliance Ins. Co., 127 Kan. 768, 275 Pac. 214; Jackson v. Republic Mutual Fire Ins. Co., 138 Kan. 571, 27 P. 2d 296. Mutual companies have statutory authority to make valid bylaws. (G. S. 1933 Supp. 40-1012). When so made they are an integral part of the contract and hence as binding as the policy itself. (R. S. 1933 Supp. 40-1017; Kennedy v. Farmers Alliance Ins. Co., supra; Jackson v. Republic Mutual Fire Ins. Co., supra; and Haney v. Farmers Alliance Ins. Co., 134 Kan. 5, 4 P. 2d 460.)” (p. 778.) The cases just cited are sufficiently analogous to emphasize the point that a binding contract of insurance with a mutual company must be in writing, and where the premium therefor is not paid in cash a copy of the note given for the premium must be attached to the policy, together with a printed copy of such portion of the company’s bylaws as applies to the particular risk; “and the policy as thus issued shall be and constitute the entire contract between the company and the insured.” (G. S. 1935, 40-1017.) In exhibit A there were pertinent excerpts from the bylaws which made it clear that it was issued and accepted on condition that no one had power to waive any provision of the policy, unless the waiver was in writing and attached thereto, nor should any privilege or permission affecting the insurance exist or be claimed “unless granted herein or by rider added hereto.” Clearly then, it must be held that the parol agreement between plaintiff and defendant’s agent touching the issuance of a renewal policy, and that the payment of the premium therefor might be deferred until harvest time, was void and created no liability against the defendant. It is next suggested that when the expired contract of insurance, exhibit A, had been executed defendant neither exacted a cash premium nor a promissory note for it to be attached to the policy as the statute requires, and therefore defendant was estopped to deny liability in the instant case for want of the statutory requirements. It is indeed a robust position for a litigant to take—that because a statute has once been ignored in the making of a contract, a party thereto is estopped from relying on the statute in respect to further contracts of the same character. We cannot approve that suggestion. It is finally suggested that the commissioner of insurance has construed the amendment of 1937, G. S. 1941 Supp. 40-1027, to mean that obligations of mutual insurance companies impose “obligations identical to those of stock companies.” We shall not do the commissioner of insurance the injustice of assuming that he is bound by the allegation to this effect in plaintiff’s third amended petition merely because for the purpose of this action defendant’s demurrer admitted it. While the construction of a statute by an administrative officer charged with the duty of administering it is entitled to respect, yet when the matter passes out of his hands and a judicial interpretation of the scope and effect of the statute is invoked the courts must face their own responsibilities. (See Capitol B. & L. Ass'n v. Commissioner of Labor and Industry, 148 Kan. 446, 448 et seq., 83 P. 2d 106.) No error in the record is made to appear and the judgment is therefore affirmed. Hoch, J., not participating.	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The opinion of the court was delivered by Allen, J.: This was an action instituted in the name of the board of county commissioners of Wyandotte county to foreclose the general lien for general taxes upon 350 odd tracts of real estate upon which taxes were delinquent for more than five years. The various tracts had been bid in by the county for delinquent taxes and had been held by the county for the period prescribed, by law. Included in the action were a number of tracts against which the city of Kansas City had issued special tax bills to pay the cost of special improvements. The holders of these special tax bills were made parties defendant under and by virtue of G. S'. 1935, 79-2801, which requires all persons having or claiming to have any interest in the land to be joinéd as parties defendant. The defendants, holders of special tax bills, filed separate answers in which were set forth the various tax bills held by each defendant, and in each answer it was alleged that lien of the special tax bills was concurrent with the lien of the plaintiff. The defendant Dan Scherrer Construction Company prayed judgment in accordance with facts set forth in its answer. The defendant Spitcaufsky prayed for judgment for the amounts due him and that the same be made a separate lien upon property covered by his tax bill. The answer of the defendant General Securities Comporation was in part as follows: “4. Further answering, defendant General Securities Corporation, Inc., states that said lien described in paragraph 3 is made a lien until paid by the statute and ordinance of Kansas City under which it was issued and by the terms of said special tax bill itself; and if plaintiff is permitted to foreclose its lien for general taxes and exclude the lien of this defendant in the event sufficient proceeds are not realized from the sale following said foreclosure, then said foreclosure and sale would result in a violation and impairment of the obligations of this defendant’s contract contrary to the provisions of section 10 of article I of the constitution of the United States; and contrary to and in violation of the rights guaranteed by the 14th amendment to the constitution of the United States. “5. Further answering, defendant General Securities Corporation, Inc., states that the amount due under and by virtue of said special tax bill is to be paid in ten equal annual installments of $27.40 each, but that' only nine of said installments have matured and defendant has not exercised its option to declare the entire amount of said special tax bill due and payable and it cannot be compelled to exercise ‘that option or to foreclose its lien for the entire amount due without impairing the obligations of its contract contrary to section 10 of article I of the constitution of the United States; and contrary to and in violation of the rights guaranteed by the 14th amendment to the constitution of the United States. “8. Further answering, defendant General Securities Corporation, Inc., states that said laws under which said special tax bills were issued guaranteed to the holder thereof an equality of lien concurrent with the lien of general taxes and superior to all other liens and that the lien secured by the special tax bill should continue to exist until the amount due should be fully paid and there can be no impairment of the obligation of that contract contrary to the provisions of section 10 of article I of the constitution of the United States or contrary to or in violation of the 14th amendment to the constitution of the United States, either by selling and conveying said real property free and clear of all liens and encumbrances even though the amount due this defendant is not paid; or by compelling this defendant to foreclose the lien which it has not exercised its option to declare due; or in any other way. “Wherefore, having fully answered, defendant General Securities Corpora tion, Inc., demands judgment that neither its liens nor the obligations of its-contracts be impaired; that if said property be sold to satisfy plaintiff’s lien that said property be sold subject to the lien of this defendant; that if said property be sold and deeds issued therefor by the sheriff, that said deeds convey the property to the purchaser subject to the liens of this defendant; that, this defendant have and recover its costs; and that it be given such other and further relief as to the court shall seem equitable and just.” The answer of the defendant J. A. Tobin Construction Company was in substance the same as the answer of the General Securities Corporation. A trial was had resulting in a judgment which recited: “It is further considered, ordered, adjudged and decreed, that each special tax bill set out in the answer of each defendant and as hereinbefore described and set forth is a lien upon the property described therein for the amount thereof and the interest thereon until paid, which lien is superior to all other liens except the lien for general taxes and is concurrent with the general tax. lien and that said lien of said special tax bill shall not be diminished, extinguished or impaired by the foreclosure of plaintiff’s concurrent lien for general taxes, except that the amount of the lien shall be reduced by the' amount paid thereon when the proceeds of the Sheriff’s Sale, if any, are divided prorata between the holders of the special tax bills and the plaintiff; and any conveyance of any real property so sold shall be subject to the lien of all special tax bills for any balance due thereon until paid.” The appeal is from the ruling and judgment so rendered. The-question presented is whether the lien of the special tax bills for-accrued installments is extinguished by foreclosure of the lien for general taxes if the proceeds of the resulting sale are not sufficient, to satisfy all liens. (For other phases of this litigation, see State v. Wyandotte County Comm’rs, 154 Kan. 222, 118 P. 2d 591; Wyandotte County Comm’rs v. Adams, 154 Kan. 233, 117 P. 2d 760.) Our statute, G. S. 1935, 13-1079, provides: “. . . Said special tax bills when so issued shall be a lien upon the property described therein for the amount of the said special assessment and interest thereon until paid, which lien shall be superior to all other liens excepting the lien for general taxes, and shall be concurrent with such general tax lien, . . .” G. S. 1935, 79-2804, provides that the sheriff’s deed under the foreclosure sale “shall vest in the purchaser or grantee therein named,, as against all persons, parties to such proceedings, a fee-simple title thereto; ...” It is contended that the provision in section 13-1079 that the special -tax bills when issued shall be a lien on the property “until paid” determines the controversy and compels an affirmance of the judgment. In construing a statute the legislative intention is to be determined from a general consideration of the whole act. Effect must be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so far as to make them consistent, harmonious and sensible. Thus, in Judd v. Driver, 1 Kan. 455, 464, it was said: “It is a uniform rule of construction that one part of a statute should be construed by other parts of the same statute so that, if possible, no clause or part shall be treated as superfluous, and especially when the two are parts of the same section.” In Bridge Company v. K. P. Rly. Co., 12 Kan. 409, 413, it was stated: “Another rule is, that a statute should be so construed that effect be given if possible to every clause and section of it.” Again in Gardenhire v. Mitchell, 21 Kan. 83, 88, it was stated: “The statutes must be.so construed as to harmonize their various provisions and, so far as possible, to give reasonable effect to all.” (See, also, State, ex rel., v. Mitchell, 50 Kan. 289, 33 Pac. 104; McCreedy v. City of Fort Scott, 113 Kan. 753, 216 Pac. 287; Barrett v. Duff, 114 Kan. 220, 217 Pac. 918.) It is also a well-settled rule that statutes in pari materia are to be construed together. (Atchison & Eastern Bridge Co. v. Atchison County Comm’rs, 150 Kan. 24, 91 P. 2d 34.) The purpose of the legislature is not discovered by an examinatiom of one sentence or one section, but by a comparison of the pertinent provisions of the various sections, and by construing them in the light of the purpose to be accomplished. (Iola B. & L. Ass’n v. Allen County Comm’rs, 152 Kan. 365, 103 P. 2d 788.) Defendants frankly admit the “until paid” clause is inconsistent with the provision in section 79-2804, which specifies that the sheriff’s deed shall vest in the purchaser a fee-simple title. Appellees would reconcile the conflict in these statutes by eliminating the fee-simple title provision from the latter section. It will be observed that the same clause in section 13-1079 which states the lien of the special tax bill shall continue until paid also specifies that such lien shall be concurrent with the general tax lien. It gives the lien of the special tax bill the same rank and dignity as the lien for general taxes. The remedies provided by the statute for the foreclosure of the special assessments and the general tax are concurrent. But the lien of the special assessment is concurrent, not superior—it has equality, not priority. Under the judgment of the trial court quoted above any conveyance of real property by the sheriff upon the foreclosure sale “shall be subject to the lien of all special tax bills for any balance due thereon until paid.” This conclusion not only nullifies the provision that the purchaser at the sheriff’s sale shall receive a fee-simple title, but translates the “concurrent” clause into a “priority” provision. The statutes must, be so construed as to harmonize their various provisions, and, so far as possible, to give reasonable effect to all. As above stated, section 79-2801 provides that in actions to enforce the liens all persons having or claiming to have any interest in the property must be joined, and section 79-2804 states that the sheriff’s deed shall vest in the purchaser a fee-simple title. These provisions show the legislative purpose to extinguish all liens and pass a clear and unencumbered title to the purchaser. The lien of the special tax bills was made concurrent with the lien of the general tax. To hold that the lien of such tax bills should continue after foreclosure and sale would not only give such liens priority over the general tax but would clog the title for an indefinite period of time. The defendants filed their answers and prayed for judgment. We think the judgment of the court should have recited that the liens of the special tax bills were extinguished by the judgment and that the sheriff’s deeds hereunder would pass a fee-simple title free and clear of all liens and encumbrances to the purchaser or purchasers. As the laws now in force were in force when the special tax bills were issued and acquired by defendants, and as defendants have not been deprived of their property without due process of law, the contention that the judgment in foreclosure extinguishing the liens of defendants would violate any provisions of the constitution of the United States is without merit. That portion of the judgment holding that the lien of the special tax bills maturing in or prior to the year 1939 is not extinguished but continued until paid is reversed, and the cause remanded with directions to modify the judgment ,in accordance with views herein expressed. Hoch, J., not participating.	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'The opinion of the court was delivered by Wedell, J.: This was an action by a landlord against his tenant to recover damages for the destruction of a barn by fire. The trial court sustained defendant’s motion to strike certain portions of the seventh amended petition, and from that ruling plaintiff appeals. Some of the same or similar allegations had been stricken from former petitions in response to other motions. No appeals were taken from such rulings, but we shall pass the effect of such rulings and the failure to appeal therefrom. Nor do we deem it necessary for present purposes to set forth the averments contained in the various petitions which were previously attacked by motions or demurrer. A demurrer had been sustained to the second amended petition and that ruling involved some of the same questions presented now. These facts all disclose a consistent effort on the part of appellee to compel appellant to state a cause of action, or causes of action, in concise language, without pleading conclusions, and to obtain a definite conception of the theory, or theories, upon which appellant sought to recover damages. In response to the motion leveled against the seventh amended petition the trial court struck general allegations of negligence contained in various paragraphs of that petition. The ruling did not constitute error. General allegations of negligence are sufficient as against a demurrer when not challenged by motion to make definite and certain, but they are not sufficient when previously so challenged. (A. T. & S. F. Rld. Co. v. O’Neill, 49 Kan. 367, 30 Pac. 470; St. L. & S. F. Rly. Co. v. French, 56 Kan. 584, 44 Pac. 12; Neosho County v. Spearman, 89 Kan. 106, 130 Pac. 677; Kirkland v. Railway Co., 104 Kan. 388, 179 Pac. 362.) The same rule applies with equal force to general allegations of contributory negligence. (Price v. Water Co., 58 Kan. 551, 558, 50 Pac. 450; Kirkland v. Railway Co., supra, p. 392.) The last motion to strike, now under consideration, was based upon various grounds. The motion was sustained in its entirety. It was leveled against various paragraphs of the petition, some of which paragraphs were denominated by plaintiff as “counts.” The principal complaint of appellee, in addition to the fact that the petition again contained various naked conclusions, was that it was impossible to ascertain even from the last petition the specific charge, or charges, of negligence with which he would be confronted on the trial and that it would be wholly impossible for him to intelligently prepare for trial. The trial court was impressed with defendant’s contention and we think rightly so. It is impossible to ascertain, from the stricken portions of the petition, whether appellant would contend the fire was started by the negligence of appellee or some unknown third person or in what manner it would be claimed the fire had been negligently started by anyone. In view of the nature of the allegations it was also impossible to determine whether appellant claimed the fire was started negligently or intentionally by appellee or some third party. It was also impossible to ascertain whether it would be claimed some third party actually started the fire or whether he merely contributed to the starting thereof in some unalleged manner. It was also impossible to determine whether plaintiff would claim defendant’s negligence consisted in starting the fire or in failing to discover it in time and extinguishing it or in failing to give notice of the fire to others in time to have it placed under control. The pertinent portion of G. S. 1935, 60-704, provides: “The petition must contain; . . . “Second: A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.” In the early case of Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619, it was held: “The plaintiff must frame his petition upon a distinct and definite theory, and upon that theory the facts alleged must state a good cause of action. If the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient.” (Syl. II1.) To the same effect are Davis v. Union State Bank, 137 Kan. 264, 20 P. 2d 508; Scherger v. Union National Bank, 138 Kan. 239, 245, 25 P. 2d 588; Lofland v. Croman, 152 Kan. 312, 317, 103 P. 2d 772, and numerous other cases which might be cited. Appellant urges he has the right to set up as many causes of action as he desires and that his various causes of action were pleaded in separate counts. Assuming, for the moment, the respective causes of action were actually pleaded in separate counts, appellant was, nevertheless, obliged to plead the substantive facts concerning the negligence upon which he relied. He could not plead such negligence in general terms when properly and timely challenged by motion. In the instant case motions repeatedly had been leveled against the averment of negligence in general terms. Moreover, the last petition, as well as former petitions, disclosed a studied effort to avoid a separate stating of the respective alleged-causes of action. Appellant studiously linked the so-called separate counts with other general allegations of negligence in such a manner as to commingle all theories of recovery as effectually as though all such theories had been pleaded by general averments of negligence in a single cause of action. To allow such procedure would permit the pleader to do indirectly what he is forbidden to do directly. The result, i-f permitted, would be that defendant would be left completely in the dark as to the particular theory of recovery, if any, upon which appellant may actually rely. Such a petition does not conform with the purpose and intent of the provisions of our code as interpreted by the repeated decisions of this court. Appellant urges it is never necessary to narrate the evidence but ■only to plead the substantive facts. True, but general charges of negligence do not constitute the pleading of substantive facts. Appellant urges he is obliged to rely upon circumstantial evidence and that a verdict may be returned upon circumstantial evidence which fairly justifies the inference of negligence. For the present we ■are not concerned with evidence but with pleadings. While it is true that circumstantial evidence, if sufficient, will support a verdict it is, nevertheless, necessary that the petition plead some definite ■and distinct theory of negligence which the pleader hopes to establish by circumstantial evidence. Appellant also contends he was not present and does not know what caused the fire but that defendant was present and knew, or should have known, the cause of the fire and that the petition is sufficient under the doctrine of res ipsa loquitur. In support of the contention he relies upon. Mayes v. Kansas City Power Co., 121 Kan. 648, 249 Pac. 599, Yerkes v. Kansas Pipe Line & Gas Co., 133 Kan. 429, 1 P. 2d 271, and other similar cases. They are not in point and do not support appellant’s contention. It may be conceded the circumstances under which a fire occurs may sometimes be such as to justify the application of the doctrine of res ipsa loquitur and thus impose upon the defendant the burden of proving his freedom from fault. (See 11 R. C. L., p. 956.) No such facts or circumstances were alleged here. The doctrine of res ipsa loquitur was not involved and no question of proper pleading was presented in. the Yerkes case, supra. That case was properly submitted upon the theory of circumstantial evidence of defendant’s negligence in the use of specificinstrumentalities, to wit, acetylene torches. In the Mayes-case, supra, plaintiff was injured by the- falling of a globe from one of defendant’s street lights and the doctrine of res ipsa loquitur was held applicable under the circumstances of the case. In the instant case-no instrumentality of any kind or character was alleged to have been employed by anyone which could justify the application of the-doctrine. That portion of the petition which charged defendant with intentionally starting the fire was not stricken. With respect to the-charges of negligence the petition presented a complete confusion of theories. Motions to strike - rest in the sound discretion of the trial court and from the rulings thereon an appeal ordinarily does-not lie. (Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; Hasty v. Bays, 145 Kan. 463, 66 P. 2d 265.) Assuming, however, that the ruling of the trial court is properly here for review, we cannot say the trial court abused its discretion-in finally sustaining the motion to strike the averments pertaining to negligence. In fact, it affirmatively appears sound judicial discretion was not abused but was properly exercised. On the other hand, reversible error was not committed if the motion to strike be regarded as tantamount to a demurrer. The reason is, ultimate facts were not stated which constituted a cause of action upon any definite and distinct theory. The ruling of the trial court is affirmed. Hoch, J., not participating.	[ -44, 122, -36, 13, -53, 96, 34, -100, 65, -111, 55, 83, -19, -109, -120, 45, -10, 125, 81, 107, 68, -77, 22, 74, -14, -77, -47, 85, -79, 79, 101, 127, 76, 48, 11, -107, -26, -128, -59, 84, 10, 15, 8, -27, -47, 72, 48, 123, 100, 11, 49, -114, -5, 40, 24, -61, 9, 44, -53, -91, -16, -79, -104, 13, 91, 2, 33, 39, -100, -57, 104, -88, -112, 57, 1, -20, 115, -74, -122, 117, 103, -101, 9, 102, 99, 33, -123, -17, -120, -104, 46, -105, -99, -90, -110, 88, 75, 41, -74, -103, 52, 20, 7, 126, -25, -108, 29, 108, -123, -49, -106, -77, -113, 116, 22, 73, -21, -105, -124, 117, -51, -122, 92, 71, 19, 27, -50, -100 ]
The opinion of the court was delivered by Valentine J.: This is an action of mandamus, brought originally in this court in the name of the state of Kansas, on the relation of the attorney general, to compel the board of county commissioners of Pratt'county to canvass certain election returns. The election was for the location of the county seat of Pratt county, and also for the election of county officers of that county; but this action has reference only to the location of the county seat of said county. An alternative writ of mandamus was duly issued from this court, and re turned; and from such return it appears that the county board failed and refused to canvass said election returns because of certain irregularities appearing in the poll-books constituting such returns. Whether these irregularities are sufficient to invalidate the returns, or not, is the only question now presented for our consideration. It appears from the said alternative writ and the return thereto, and the evidence introduced on the trial of this case, that Pratt county was divided into five townships — Iuka, Ludwick, Naron, Haynesville, and Springvale. The returns from the first two townships were canvassed, and the returns from the other three were not; but it would not have made any difference in the result if the returns from the third (that is Naron township) had been canvassed. Hence, it will only be necessary for us to consider whether the returns from the last two townships (that is, Haynesville and Springvale townships) should have been canvassed, or not. Said irregularities appearing in said returns are as follows: 1. The blanks in the heading to the poll-book of Haynes-ville township were not filled. 2. There was an irregularity in the jurat attached to the oath taken by the judges and the clerks of the election in Springvale township. 3. The blank certificate showing the aggregate number of electors was not filled up in either Haynesville or Springvale townships; and the certificate was not signed in Haynesville township. We shall consider these irregularities in their order. 1. The failure to fill up said blank in the heading of the poll-book of Haynesville township was wholly immaterial; for the body of the poll-book clearly showed what it (the poll book) was and no question as to its identity was ever raised. All knew that it was in fact the poll-boob of Haynes-ville township. 2. The oath of the judges and clerks of Springvale township, their signatures, and the jurat or jurats attached to the oath, are as follows: “State of Kansas, Pratt County, ss. “We, the undersigned, judges and clerks of the election held in the township of Springvale, in the county of Pratt, on the 22d day of September,, in the year one thousand eight hundred and seventy-nine, do each of us severally, solemnly swear that we will support the constitution of the United States and of the state of Kansas, and that we will faithfully discharge the duties of our respective offices. So help up us God. , W. S. Purdy, Theodore D. Risser, ■ Wm. A. Wilson, Isaac Chinn, Judges. W. T. Havard, Clerks. “Subscribed in my presence, and sworn to before me, the day and year last before written, all the above except as to myself. Wm. S. Purdy, One of Judges. “Subscribed and sworn to before me, above-mentioned date. W. T. Havard, Clerk.” From the foregoing; it would seem that Purdy, as judge of the election, administered the oath to all the judges and clerks except himself, and that Havard, as clerk of the election, administered the oath to all the judges and clerks. Probably, however, he administered the oath to Purdy only; but in any event, we think it clearly appears that all the judges and clerks took the oath; and that was certainly sufficient. The statute provides that the judges and clerks may administer the oath to each other. (Comp. Laws of 1879, p. 389, § 3.) The failure to fill up said blank certificate and to sign it, showing the aggregate number of electors who voted at that election, did not invalidate the poll-books. The poll-books otherwise showed the whole number of electors voting (124 in Haynesville township and 39 in Springvale township), and gave the name of each elector; and the tally-sheets showed the number-of votes cast for each place for the county seat and for each candidate for office; and a proper certificate signed by the judges and clerks was attached to each poll-book. The certificate for the township of Haynesville, so far as it applies to the election for county seat, was as follows: “We certify that Saratoga had 76 votes for county seat, and Anderson had 11 votes for county seat, and Iuka had 37 votes for county seat. H. J. Dill, J. J. Cox, Ferg. T. McOsker, H. W. Davis, Judges. H. A. McOsker, Clerks.” The certificate for Springvale township was in form precisely the same as the above certificate for Haynesville township. We think the county board should have canvassed said election returns; and therefore a peremptory writ of mandamus will be issued from this court, commanding it to do so. All the Justices concurring.	[ -76, -28, -16, -36, 40, -64, 18, -116, 27, -111, -75, 115, -19, -54, 4, 123, -6, 127, 17, 121, -57, -74, 103, -21, 48, -13, -51, -43, -13, 75, -74, -44, 76, 48, 10, -107, 70, 0, 7, -36, -114, -122, -119, -46, 93, -56, 60, 57, 114, -117, 49, 42, -13, 46, 28, -61, -23, 44, 89, 44, 73, -15, -82, -43, 95, 14, 49, 39, -98, -125, -8, 47, -112, 57, 68, -8, 83, -90, -122, 100, 9, -71, 41, -26, 35, 67, -67, -49, -8, -104, 14, 123, 29, -26, -110, 25, 99, 4, -106, -103, 117, 26, 14, -2, -29, 5, 29, 108, -116, -118, -80, -77, -49, 100, -118, 114, -29, -84, 48, 113, -51, -10, 95, 7, 48, 59, -33, -80 ]
The opinion of the court was delivered by Brewer, J.: In the case below, H. Reimert, defendant in error, sued John R. Griffiths, plaintiff in error, upon an open account consisting of many and distinct items. The defendant in the action, Griffiths, filed his bill of particulars, charging Reimert with a large number of distinct items of indebtedness. The original suit was brought before a justice of the peace. "Without having had any trial, the cause, by agreement of the parties, was certified up to the district court, where both parties filed amended bills of particulars, in which new bills-the number of items in each account was largely increased. The cause was then, by agreement of parties, referred to-Peter Bell, as referee, -Who proceeded to hear the said cause, and afterward filed in the district court his findings of law and of fact. Griffiths filed his motion to set aside the report of the referee, assigning, among other reasons, that said referee had failed to make any finding, either favorable or unfavor able, as to a large number of items contained in both the plaintiff’s and defendant’s bills of particulars. This motion was overruled by the court, to which ruling the plaintiff in error excepted. This presents the only question for our consideration. Did the referee pass upon all the issues presented to him? It is perfectly clear from the report (the testimony is not preserved) that he did. It reads: “After hearing all the testimony of the witnesses, and carefully considering all the evidence adduced by both the plaintiff and the defendant, and being fully advised in the premises, I do find and adjudge the questions of fact proven, as follows, to wit: 1st. I find that there is due to the plaintiff from the defendant, on the items set forth in plaintiff’s bill of particulars, the sum of four • hundred and ten dollars and twenty-one cents; the items allowed, aggregating the said sum of $410.21, are hereto attached, marked “ Exhibit A,” and made part of the report. 2d. I find that there is due to the defendant as a legal offset against the said claim of the said plaintiff, the sum of three hundred and forty-three dollars and fourteen cents; the items allowed, aggregating the sum of $343.14, are hereto attached, marked “Exhibit B,” and made a part of this report. 3d. I find from the evidence, that- there is due to the plaintiff from the defendant, over and above all legal offsets, counter-claims and demands of every kind and nature, the sum of sixty-seven dollars and seven cents ($67.07). As a conclusion of law, I find and adjudge that the plaintiff is entitled to recover of and from the said defendant, J. E. Griffiths, the said sum of sixty-seven dollars and seven cents, ($67.07,) and entire costs of the suit, and recommend that the court so give judgment.” In the two exhibits referred to are the several items in the two accounts which are allowed. Counsel contend that because the items not allowed are not specifically named, there has been no adjudication as to them. But this misconceives the scope of the finding. After considering all the testimony, the referee allows certain items of the account. This means that he finds that these, and these only, have been proved. He also finds the balance due the plaintiff. The failure to allow the others is thus an adjudication against them. We see no error in the ruling, and the judgment will be affirmed. All the Justices concurring.	[ -78, -8, -23, -2, 10, 32, 42, -118, 121, -95, -73, 115, -19, -61, 16, 97, -13, 73, -48, 106, 70, -73, 23, -30, -10, -77, -7, -59, -79, 78, -28, -36, 76, 56, 66, -43, 103, -62, -59, 20, -50, -124, 9, 69, -7, 64, 48, 63, 82, 9, 49, -114, -13, 44, 25, 79, 109, 44, 121, 57, -16, -16, -114, 13, 89, 22, -79, 54, -36, 71, 88, 58, -112, 113, 3, -24, 122, -74, -122, -12, 39, -71, 13, 98, 98, 1, 49, -51, -100, -88, 38, 91, -97, -89, -109, 88, 11, 41, -74, -67, 124, 8, 7, 126, -3, 21, 31, 100, 3, -114, -42, -79, -97, 118, -102, 75, -1, -125, 48, 113, -51, -64, 92, -57, 58, -101, -34, -65 ]
Per Curiam: This case is reversed, and remanded for a new trial, upon the authority of Iles v. Elledge, 18 Kas. 296.	[ -16, -4, -4, 62, 10, 65, 48, -110, 3, 99, 103, -15, 47, 91, 20, 111, -109, 79, 85, 107, -60, -73, 54, -63, -48, -13, 115, -41, -71, -20, -25, -17, 72, 120, 82, -43, 82, -120, -63, 22, -122, -115, 56, -19, 73, 123, 48, 34, -48, -102, 117, 22, -29, 42, 19, -61, 104, 44, 106, 37, 23, 24, -120, 7, 123, 7, -79, 22, -103, 71, -40, 38, -36, 57, 1, -24, 114, -106, -122, -48, 67, 25, 0, 2, 96, -126, 65, 87, -72, -40, 38, -2, -65, -89, -103, 16, -53, 96, -106, -39, 85, 20, 46, 126, -18, -43, 95, 124, 4, -33, -108, -77, -57, 24, -108, 82, -61, 23, 48, 84, -108, -96, 124, -62, 51, -77, -98, -106 ]
The opinion of the court was delivered by Valentine, J.: In this case the defendant was charged by information with stealing “ national bank currency and United States treasury notes of the amount and value of one hundred and sixty-four dollars.” No motion was made to quash the information, and no plea in abatement was interposed, but, on the contrary, the defendant pleaded to the merits, “not guilty,” and went to trial before a jury upon the 'merits of the action. The jury, upon the evidence introduced and after due deliberation, found “the defendant guilty as charged in the information,” and found and assessed “ the value of the property stolen at the sum of one hundred and sixty-four dollars.” After this verdict was rendered, the defendant moved in arrest of judgment, “for the reason that the facts stated in said information do not constitute a public .offense,” and also moved for a new trial for the following reasons: . “First, The verdict of the jury is not sustained by sufficient evidence. “Second, The verdict is contrary to law. “ Third, The court erred in giving instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, to the jury, and in giving each of said instructions.” The court overruled both of these motions and rendered judgment against the defendant, sentencing him to imprisonment in the penitentiary for the term of four years. The defendant now appeals to this court, and claims that the court below erred in overruling said motions and in rendering said judgment. I. Did the court below err in overruling the motion in arrest of judgment? — or, in other words, was the information fatally defective in not stating facts ■ sufficient to constitute a cause of action? 'We must answer these questions in the negative; for while the facts are stated in very general and indefinite language,' yet sufficient facts are stated, and stated sufficiently definitely to show beyond all question that a public offense was committed, and that it was committed by the defendant. The objection to the information is, that it does not give a description of any of the notes stolen, nor state the number of notes stolen, nor the denomination of any one of them, nor the aggregate amount of the national bank notes separate from the aggregate amount of the United States treasury notes, and that it does not give any reason why it is made so indefinite. This description of the offense is, of course, general and indefinite, but still it must be admitted that it is a public offense to steal “ national bank currency and United States treasury notes of the amount and value of one hundred and sixty-four dollars,whatever the description, or the denomination, or the.number, or the aggregate amount of said currency or notes, or of either taken separately, may be. And the defendant, after taking his chances of an acquittal upon the merits of the action, cannot then object to the information, because it has not stated the offense in as definite terms as it might have done. (As to motions in arrest of judgment in criminal cases, see Comp. Laws of 1879, p. 764, § 277.) In Massachusetts it has been held that “judgment will not be arrested on an indictment for larceny of sundry bank bills of the aggregate value of $367, merely because the verdict was ‘guilty of stealing sundry bank bills of the value of $317, and not guilty as to the residue.’ ” (Com. v. Duffy, 11 Cush. [65 Mass.] 145; see also Com. v. Sawtelle, 11 Cush. 142; and Com. v. O’Connell, 12 Allen, [94 Mass.] 451.) And in Maine it has been held that “where an indictment for larceny states only the collective value of the articles alleged to have been stolen, if the defendant is convicted of stealing only a part of them, and the jury find and in their verdict return the value of the part so stolen, judgment may be legally rendered upon the verdict.” (State v. Buck, 46 Me. 531; see also McKane v. The State, 11 Ind. 195.) II. The overruling of the motion for a new trial presents a more difficult question. This question, however, really involves two questions: 1. Did the court below err to the pre judice of the defendant, in instructing the jury that they might find the defendant guilty, if they found that he stole “national bank currency and United States treasury notes, or either?” 2. Did the court below err to'the prejudice of the defendant in giving the following instruction to the jury? “The possession of property, proven to have been recently stolen, is evidence from which the jury may infer that the person in whose possession such property is found is guilty of the theft, provided that such possession is not explained; and so, when a certain amount of property is proven to have been stolen at the same time, and soon thereafter a portion of such stolen property is found in possession of the defendant, such possession, if unexplained, is evidence from which the jury may infer that the defendant- is guilty of the larceny of the entire amount of property then proven to have been stolen.” Counsel for defendant refer us to the following Massachusetts decisions, for the purpose of showing that the court below erred in instructing the jury that they might find the defendant guilty if they found him guilty of stealing “national bank currency and United States treasury notes, or either.” (Hope v. Com., 50 Mass. [9 Metc.] 134; Com. v. Cahill, 94 Mass. [12 Allen] 540; Com. v. Lavery, [101 Mass.] 207.) These Massachusetts cases in effect hold that where an indictment alleges the stealing of two or more articles of different kinds, and gives only the aggregate value of such articles, and the verdict of the jury shows the stealing of only a portion of such articles, such verdict can not authorize or uphold any sentence or punishment of the defendant. And the grounds upon which these decisions were made seem to be as follows: Before any person can be sentenced or punished for a crime, it is necessary that both a grand jury and a petit jury should concur in finding that the defendant stole the same identical article, and that such article had some actual value; and the court then reasons, that if the grand jury should find that the defendant stole several articles, giving only their aggregate value, and the petit jury should afterward find that the defendant stole only a portion of such articles, it might be that the petit jury would thus find that the defendant stole only such of the articles stolen as the grand jury considered of no real or actual value. That is, the aggregate value which the grand jury saw fit to place upon the whole of the articles in the aggregate may in fact have been placed entirely upon only such of the articles as the petit jury afterward failed to find had been stolen. In other words, the two juries may have failed to concur in finding that the thing or things finally found to have been stolen, had any actual or real value; and hence no concurrent finding by the two juries that the defendant committed any punishable larceny. Such reasoning can hardly apply to any case prosecuted in Kansas, and it certainly cannot apply to the present case. It is not necessary that a defendant in a criminal prosecution in Kansas should be indicted at all, but he may be prosecuted upon an information filed by the county attorney. And such information is subject to amendment even during the trial. (Comp. Laws 1879, p. 741, §72.) But more than this: the defendant in this case is charged with stealing “national bank currency and United States treasury notes, of the amount and value of one hundred and sixty-four dollars.” Now all men must know as a matter of law, that both “national bank currency and United States treasury notes” must have some actual value. It is impossible, in legal contemplation, to suppose that either should have no value, and hence the reasoning in the Massachusetts cases cannot apply to such notes or currency. They are wholly unlike other property — wholly unlike the former bank notes or bank bills which were allowed to circulate in this country as currency, and which might, in fact, and often did, have no actual value. The United States treasury notes are legal tenders for the payment of debts; and therefore must in law be worth their face value; and national bank notes are redeemable in United States treasury notes, with ample security behind them, and hence they must also, in contemplation of law, be worth about their face value. • Besides, the currency and notes stolen were alleged to have been of the amount and value of $ 164. That is, both their face value and their real value were $164. And the jury found “the defendant guilty as charged,” and found the “value of the property stolen” to be $164. The jury therefore could not have found that the defendant stole only a portion of the property alleged to have been stolen. The jury must have found that the defendant stole all of. the property — (all of the “ national bank currency,” and all of the “ United States treasury notes”) alleged to have been .stolen. The face value of the property alleged to have been stolen was only $164, and its real value could not have been more; and as. the jury found that the value of that stolen was $164, they must have found that.all that was alleged to have been stolen was in fact stolen; and if so, then the Massachusetts decisions can have no possible application to this case. We do not think that the court below erred in. instructing the jury that they might find the' defendant guilty if they found that he stole “ national bank currency and United States treasury notes, or either;” and, under the circumstances of this case,' we do not think that the supposed error was material, even if the court did err. The other.instruction above quoted we think is correct. Finding no material error in any of the rulings of the court below, its judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: The petition avers a dissolution of partnership, a settlement between the parties, an accounting, and the finding of a balance. The affidavits of H. Gove (one of the plaintiffs) for the attachment and service by publication, and other proof introduced on the hearing of the motion to discharge a part of the attached property, make it quite clear, 'however, that the profits of $9,587.30, alleged to be due the plaintiffs from the defendant, are on an unsettled partnership account. In short, it is the sum, in the language of one of the plaintiffs, “that upon an accounting the defendant will be indebted to the plaintiffs.” As the partnership, by the provision of the supplemental contract of November 22d, 1879, was to .continue only to February 1, 1880, and as there is no pretense that it was extended after that date, we may assume that it was dissolved as alleged. Two questions are therefore presented by the record: First, Does it appear that the claim upon which the attachment was issued is á “debt or demand arising upon contract, judgment or decree?” If it does not so appear, the second is, Did the cause of action for the unascertained profits of the partnership arise wholly within the limits of Kansas? The first inquiry is answered in the negative, in Treadway v. Ryan, 3 Kas. 437; yet, the writer of this opinion is compelled to say that only for that decision, the length of time that has elapsed since it was announced and the action of the legislature since, he would be disposed to hold that, upon principle, the contrary doctrine is the law. The case has no support, as he thinks, either in reason or the authorities. (Humphrey v. Matthews, 11 Ill. 471; Goble v. Howard, 12 Ohio St. 165.) The writer’s views on this subject are as- follows: The proviso in subdivision 1 of § 190 of the code has reference to debts or demands founded upon contract, judgment or decree, and actions sounding in tort. An action after dissolution of a firm by one partner against a copartner for an accounting, and to recover an unascertained balance, is really an action founded on contract. A partnership is the combination by two or more- persons, of capital or labor, or skill, for their common benefit, and is usually constituted, as between the parties themselves, by an agreement between them to share the profits and losses of their joint undertaking, whether it have reference to a trade or business, or merely to some particular adventure. Each partner has a kind of latent but vested interest in his share, and a proportionate claim against every partner who withholds his share, and the process of accounting and adjustment gives no title, but only ascertains its extent and measure. The claim for the to-be-ascertained balance is based upon the contract to share the profits and losses, and it no more arises out of transactions with third persons than the claim of the principal against an agent for goods and merchandise sold by the latter. If a balance is really due a partner upon the dissolution of a firm, if he has a just claim for money, such balance and such money are to be ascertained and restored to him through the proceedings of a court .on account of the contractual relations of the members of the firm, and the failure or refusal of the de .fendant member or members to comply with the contractual terms of the partnership. But it is unnecessary to pursue ■this line of argument. There seems to be running through the entire body of judicial decisions the doctrine that judges ought not to disturb prior rulings of the same court, except for cogent reasons; as some express it, “only where the decision is flatly absurd or unjust,” as the certainty of the rule is often more important than the reason of it. The decision of Treadway v. Ryan, supra, was declared in 1866; it has stood unchallenged for nearly fifteen years; it has been copied and referred .to in various text-books as the law of this state; and in 1870 the legislature reenacted the section of the code of 1859 interpreted by that decision, (Laws 1870, ch. 87, §4;) therefore it is not improper to say the law-making power of the state adopted the judicial construction given to the statute by the supreme court in 1866. Hence, it is not wise to disturb the decision by establishing another rule, although such rule seems sounder in principle. We pass now to the second question. It appears from the testimony that the zinc ore was smelted at the zinc works at Weir City, in Cherokee county; that the spelter was shipped east to New York, Chicago, La Salle, and other places outside of the state, and sold by defendant, who resided at Chicago, Illinois. The proceeds of the sales were received by the defendant at his place of business in Chicago, and disbursed by him from that point. On February 2, 1880, after the close of the partnership, large sales to purchasers had not been accounted for to defendant; at least, at that time all the proceeds had not been collected. The alleged settlement in February was merely the exhibition of a statement to the partners by -J. H. Gross, who had the management of the business of the firm at the zinc works, of an approximate estimate of the partnership; some items of this statement were unsatisfactory to plaintiffs; at the institution of this suit defendant was out of the state; no final or other balance had been struck; no demand had been made upon defendant in the state for any particular balance; the product of the zinc works had been, sold outside of the state; the money had been collected by defendant outside of the state; the defendant resided outside of the state; the default of defendant to account, if any default occurred, was outside of the state. The selling of the spelter, and the collection of the proceeds by the defendant, were within the literal terms of the articles of partnership, as the defendant was constituted the financial agent or manager of the firm; therefore, in all these matters, he committed no wrong and violated no right. Upon these facts, it cannot be said that the cause of action established on the motion to discharge a part of the property, arose wholly within the limits of this state. The counsel for. plaintiffs contend that the court had no legal right of authority to inquire, on a motion to discharge the property, whether the cause of action arose wholly within the-state, upon the theory that subdivision one of §190 of the' code confines such inquiry to the trial of the issues joined upon-the pleadings. "We think otherwise. The trial referred to at the close of the subdivision, is the trial (hearing) on the attachment; • any other construction defeats the purpose of the statute, and is contrary to its spirit. The other causes of attachment do not have to be proved on the trial of the issues in the action, and we perceive no good reason for holding.that the exception was intended by the legislature in subdivision one. The order and judgment of the district court will be affirmed. All the Justices concurring.	[ -76, 107, -4, 108, -120, 98, 34, -102, -39, -96, 39, 115, -3, -38, 0, 121, -14, 105, 81, 106, 68, -77, 39, 11, -58, -109, -7, -35, -79, -49, -26, -42, 76, 48, 74, -107, 102, -54, 65, -100, -118, -120, 41, -28, -16, -64, 48, 27, 82, 11, 113, -106, -5, 40, 24, -57, 105, 46, 108, 13, -47, -80, -118, -123, 127, 19, 19, 39, -36, 71, -56, 46, -72, 16, 32, -24, 115, -74, 6, 116, 97, -71, 41, 118, 99, 33, -95, -31, -100, -116, 46, -73, 29, -89, -80, 88, 3, 8, -66, -99, 125, 20, -121, 126, -8, 13, -99, -20, 1, -113, -42, -77, -113, 118, -98, 11, -9, -93, 49, 113, -58, -96, 93, 71, 58, -101, -97, -44 ]
The opinion of the court was delivered by Brewer, J;: The defendant in error, plaintiff below, recovered a judgment before a justice of the peace for $195.46; against one Wm. Dunworth, and caused garnishee process to-issue to plaintiff in error, which answered by S. L. Shotwell, its cashier, denying any indebtedness to said judgment-debtor Dunworth, but admitting having issued to him a certificate of deposit, in words and figures as follows, to wit: “$460. Eldorado, Kas., 5th June, 1878. “John R. Morrison has deposited in the Exchange Bank of Eldorado four hundred and sixty dollars, payable to the order of Wm. Dunworth in current funds, on the return of this certificate properly indorsed. “No. 71. S. L. Shotwell, Cashier.” Certain payments were indorsed upon this paper, but a balance still remained due. In an action brought against the bank as garnishee, it appeared that after the garnishment, Dunworth presented the paper for payment, which was refused, and that shortly thereafter one David Lower presented the paper duly indorsed by Wm. Dunworth, and then the bank paid it. We think the judgment of the district court unquestionably correct. The paper, whether negotiable or not in the first instance by the law of the state or the custom of the country, was presented by the payee and holder after the garnishment, and payment was refused. It was then, if never before, past-due and non-negotiable paper. As such, the debt evidenced thereby was subject to garnishment, and the garnishee process bound the bank. It is further claimed that because the plaintiff did not give notice that the answer of the garnishee was unsatisfactory, but obtained upon it an order for the payment of money, and brought suit upon that order (which, however, was dismissed before the commencement of this action), that he is estopped from now suing and alleging that the answer is not full, true and satisfactory. We do not so understand the statute. While a party may give notice that the garnishee’s answer is unsatisfactory, and have a trial thereof at once before the justice, we consider that remedy as simply cumulative. He may proceed in that way, or by action. Failure to give notice is no waiver of objection to the answer. The truth of the answer is the substance of the matter, and the manner of ascertaining the truth is.optional with the plaintiff. Until a final decision in either proceeding, he may abandon one and substitute another. These are the only questions of importance in the case, and in them appearing no error, the judgment will be affirmed. All the Justices concurring.	[ -78, -18, -71, -3, 122, 96, 42, -102, 1, -31, -89, 83, -87, -125, 24, 113, 115, 41, -11, 122, -62, -73, 55, 65, -46, -13, -47, -43, -79, 108, -20, -41, 76, 48, -62, -99, 102, -62, -63, -44, -114, -124, 41, -20, -15, 73, 48, 123, 16, 75, 65, -84, -13, 58, 24, 75, 105, 45, -21, -103, -16, -71, -66, -123, 111, 20, 17, 54, -98, 7, -56, -82, -112, -75, 1, -24, 114, -122, -58, 116, 111, -101, 40, 102, 98, 32, 53, -55, -88, -72, 62, -1, -97, -89, -110, 72, 107, 41, -106, -99, 60, 22, -121, 124, -22, -99, 25, 44, 3, -38, -108, -77, -115, 62, -104, 11, -17, -89, -80, 113, -49, -96, 92, 71, 112, -103, -97, -8 ]
Per Curiam: This case is affirmed, on the authority of Hairgrove v. Millington, 8 Kas. 480.	[ -76, 96, -4, 29, 14, -64, 16, 62, 74, -11, -89, 81, 37, -117, -108, 117, -125, 79, 83, -13, -10, -13, -57, -47, -16, 99, -5, -34, -103, -52, -66, -98, 77, 121, -118, -43, 102, -120, 77, 24, -58, 13, 41, 105, 73, -45, -78, 43, 80, -113, -15, 23, -13, -86, 19, -57, 40, -68, -55, -20, 21, 121, -118, -107, 77, 53, -77, -90, -100, -89, -16, 46, 4, -103, 1, -24, 51, -92, 66, -76, 79, -7, 4, 64, 96, 5, -80, -3, 0, -104, 7, 126, -99, -90, -66, 25, 106, 69, -98, 29, 100, -79, 46, 126, -5, -19, 95, 40, -100, -113, -66, -73, -121, 113, -48, 66, -53, -25, 16, 1, -60, 46, 118, -62, 49, -41, -98, -106 ]
The opinion of the court was delivered by Horton, C. J.: This was an action in replevin, brought by the defendant in error against the plaintiffs in error to recover one dun mare, eight years old, of the value of ninety dollars, and claimed to be exempt. The case was tried to the court without a jury. Special findings of fact were made, which are as follows: “1. That the defendant George Ploisington was a duly appointed and qualified constable for Grant township in said county [Dickinson], about the time of the detention of the property in the plaintiff’s petition. “2. That said property was levied upon and taken from the plaintiff, under execution issued by T. J. Crosier, a justice of the peace for said Grant township, by George Hoisington while acting as such constable. “3. That said execution was issued upon a judgment in favor of the defendant, Mary A. Barnes, and against the plaintiff, George Huff, and that said judgment was for a balance due upon a lease of farming land. “4. That said lease contained a clause waiving, upon the part of the present plaintiff, George Huff, all right or exemption of personal property from seizure or attachment for any rent that might be due under the same, and that said lease was executed by said plaintiff. “ 5. That no reference was made in said exemption of the waiver aforesaid in the lease, and that the judgment in said action of Mary A. Barnes v. George Huff was for rent due under said lease, and that there was no recital of the waiver aforesaid in said judgment. “6.. That at the time the said levy was made, the plaintiff was the owner of the said property and had the same in his possession, and was, at the commencement of this suit, entitled to the immediate possession thereof. “ 7. That the said plaintiff was and is the head of a family, and that the said property, to wit, one dun mare, was within the description and enumeration of the statute, of personal property exemption, and was exempt from seizure and sale upon any attachment, execution, or other process; and the value of said mare was $90.” Upon the findings of fact, the court rendered judgment that the animal was exempt; that Huff was entitled to its immediate possession, and that his damages for detention were $25. . Section 30, ch. 55, Comp. Laws 1879, provides: “A tenant may waive, in writing, the benefit of the exemption laws of this state for all debts contracted for rents.” Huff waived his right of exemption in the lease executed to Mary A. Barnes; she obtained a judgment against him for a debt contracted under that lease, and had the right to levy upon the property in controversy. The failure of the justice to incorporate in the judgment and execution any reference to the ■written waiver, did not prevent this property from being' taken by the constable on execution. Under the waiver, the property was not exempt; not being exempt, it was subject to seizure and sale upon legal process. (Frost v. Shaw, 3 Ohio St. 270; Greeno v. Barnard, 18 Kas. 518.) The judgment of the district court will be^ reversed, and the case remanded with the direction to enter judgment upon the findings in favor of the plaintiffs in error. All the Justices concurring.	[ -14, 110, -43, -67, 104, -32, 2, -104, 67, -31, -78, 87, 11, -48, 5, 33, 103, 109, 85, 107, 95, -77, 91, -30, -110, -13, -109, -51, -79, 73, -28, 86, 12, 48, -126, 21, -26, -117, 65, 84, -114, 65, 41, 69, -7, 72, 56, 9, 52, 75, 49, -114, -5, 46, 53, -61, 41, 44, 121, -83, -48, -15, -81, 5, 75, 6, 50, 86, -98, 67, 74, 126, -104, 49, 0, -8, 123, -90, -126, -44, 40, -103, 41, 102, 98, 49, 108, -35, 96, -100, 47, 126, -121, -89, -48, 80, 90, 9, -106, -99, 125, 82, -90, -4, -18, -107, 29, 108, 2, -49, -108, -73, 15, 44, -110, 5, -41, -91, 16, 113, -113, -22, 88, 103, 114, 27, -98, -98 ]
Per Curiam: This case comes up on a motion of the railway company to dismiss an appeal taken from an award of the board of commissioners of Miami county, in condemning the right of way and assessing damages to the owner of land. The plaintiff in error assigns for cause of dismissal of the appeal — first, that the appeal was not taken within the time prescribed by law; second, that the appeal bond was not executed by the appellant as required by law; third, that the appeal bond was not filed within ten days from the filing of the report of the commissioners. The motion to dismiss was made too late, and the court therefore committed no error in overruling it. The record shows that Quinn attempted to take an appeal on July 25, 1879; that on October 6, 1879, both parties to this proceeding appeared in the district court of Miami county, and stipulated that Quinn was to file a petition in his case in twenty days, and the railway company to have twenty days in which to answer. On November 6 thereafter, Quinn filed his petition, setting forth at length a cause of action against the railway company, and claiming $5,271.25 damages. On January 5, 1880, the company filed its answer, with the consent of the owner of the land. The motion to dismiss was not filed till February 2, 1880. At this date, the court had acquired full jurisdiction. (Shuster v. Finan, 19 Kas. 114-116; Miller v. Bogart, 19 Kas. 117.) Judgment affirmed.	[ -10, 114, -68, -82, -118, 96, 32, -102, 67, 1, -73, 83, -83, -61, -112, 121, -41, 125, 97, 123, -60, -77, 119, 34, 18, -13, -29, -35, -76, 79, -10, -61, 76, 48, -54, -107, 70, -56, -51, -40, -50, -123, -71, -20, -47, 73, 56, -6, 50, 15, 17, 110, -29, -86, 88, 65, 44, 41, -37, 41, -48, -16, -126, 5, 118, 16, -127, -60, -100, 3, -64, 58, -104, 53, 34, -20, 115, -90, -121, -10, 9, -103, 8, 106, 99, 33, -123, -17, -84, -88, 6, 120, 27, -90, -76, 24, 75, 65, -106, -99, 116, 16, 39, 126, -20, -124, 89, 44, -124, -49, -78, -77, -97, 36, -106, 1, -29, -79, 48, 112, -52, -16, 94, 71, 59, -101, -33, -100 ]
The opinion of the court was delivered by Valentine, J.: This was an action -brought by Rebecca D. Rei'sner against W. B. Strong and others as individuals, and as an assumed corporation, under the name of the “Atchison Union Depot and Railroad Company,” to perpetually enjoin the defendants from ever constructing' or using a certain contemplated railroad track across a portion of one of the plaintiff’s lots in the city of Atchison, Kansas. A temporary injunction was asjked for at the commencement of this action, which temporary injunction was refused, and this refusal is the only ruling of the court below of which plaintiff below, now plaintiff in error, complains. Was this ruling erroneous? The facts of the case are substantially as follows: For a long time the plaintiff has owned the north 25 feet of lot number 13 and lot number 14 in block number 21, in the city of Atchison, lot number 14 being north of and contiguous to lot number 13, upon which lot number 14 the plaintiff has a large three-story hotel, which she and her husband keep, and at which they reside. On November 9, 1878, the individual defendants, or a portion of-them, attempted to organize a corporation under • the name of the “Atchison Union Depot and Railroad Company,” for the purpose of erecting a union depot in the said city of Atchison, and of constructing railroads with one or more tracks to connect said depot with the several railroads that were-then, or .might thereafter be, constructed to or within said, city, and with any bridge across the Missouri river at said city, and to maintain and operate such depot and railroads. On July 28, 1879, said depot and railroad company filed in the office of the county clerk a map, and plans and profiles of said depot and railroads. The depot was to be built (and was afterward built) on the opposite side of Second street, near to, and west from, said hotel; and one of said railroads was to be built across the southeast corner of said north 25 feet of said lot 13, taking from said southeast corner of said 25 feet, a right-angled triangular piece of ground, 23 feet on one side, 35 feet on the other, the hypothenuse being nearly 42 feet, and the piece of ground being distant from, the hotel 32 feet. On August 2, 1879, proceedings were commenced for the purpose of taking and appropriating, among other real estate, said triangular piece of ground, under the right of eminent domain. Commissioners were duly appointed by the judge of the district court; these commissioners duly appraised ■ and assessed the damages to the plaintiff’s property at $279, and made their return on September 18, 1879. This amount the defendants “duly deposited ” with the county treasurer, but just when is not shown. Of this assessment of damages the plaintiff complained, and on September 27, 1879, she appealed to the district court, filing her appeal in the district court on October 6,1879, where the case is still pending and undisposed of. Work was commenced in November, 1879, for the erection of said depot; but the greater portion of the work was not done until after March 1, 1880. Work was also done on the plaintiff’s property, (said triangular piece of ground,) during the winter (January and February) of 1880. On May 14, 1880, when this suit was commenced, the depot was nearly completed. The depot is a large structure, being 235 feet long east and west, and 130 feet north and south, in the shape of an L, the southeast corner being two stories high, with a mansard roof, and the rest of the building being one story high, with a mansard roof. On May 14,1880, this action was commenced to perpetually enjoin the defendants from building said railroad or railroad track, across said triangular piece of ground. This track was to connect said depot with the Atchison & Nebraska' railroad, and this track was almost indispensably necessary for that purpose. On account of the Missouri river, said depot and said railroad could scarcely be connected except by constructing said track over said triangular piece of ground. When this suit was commenced, a temporary injunction, temporarily restraining the construction and use of said railroad track, was also asked for, but on May 20,1880, such temporary injunction was refused by the court below. The plaintiff now claims that this refusal was erroneous, for the following reasons: “1. The said supposed or assumed corporation, never had any legal or valid existence, and therefore had no power to act in taking the plaintiff’s property under the right of eminent domain. “ 2. If, however, it was a corporation, still it was a mere depot corporation, and not a railroad corporation, and for that reason had no power to take the plaintiff’s property under the right of eminent domain. “ 3. The defendants having no power to act except as a copartnership or as individuals, have no power to take the plaintiff’s property under the right of eminent domain.” We are inclined to think that the defendants are such a de facto railroad corporation, that they may exercise the right of eminent domain and thereby take the plaintiff’s said property under such right, although there may be some defects in their organization as a railroad corporation; and that a de facto railroad corporation may exercise such right, see McAuley v. C. C. & I. C. Rly. Co., 83 Ill. 347; Aurora, &c., Rld. Co. v. Miller, 56 Ind. 88. As a rule, the legal existence of a defacto corporation can be questioned only by the state in a direct proceeding instituted for that purpose. But we do not think that it is really necessary to determine in this case the legal status or power of the present depot and railroad company. Whether the company is a corporation or not, and whether it is a railroad corporation or not, we think the plaintiff has so dealt with it as to debar her from the equitable relief of injunction which she now seeks. Under, the circumstances of this case, it would be highly inequitable and unjust -to deprive the defendants of the use of said triangular piece of land — they of course paying the plaintiff, as they expect to do, all just and reasonable damages and compensation therefor. I. In September, 1879, when the defendants were in good faith attempting to obtain the right to the use of the plain tiff’s property under the right of eminent domain, the plaintiff, instead of commencing some legal proceeding to test the defendants’ right to invoke the aid of the right of eminent domain, rather recognized such right by taking an appeal to the district court from the assessment of the commissioners in the condemnation proceedings. She at that time had a choice of remedies, provided, however, that the condemnation proceedings were invalid, as she now claims that they are. She could, if she had so chosen, have recognized the defendants’ right to take her land under the right of eminent domain, and simply have taken an appeal to the district court, as she did, as to the amount of damages which she believed she was entitled to recover; or, she could at once have commenced such an action as she has now commenced, to enjoin all further proceedings under the right of eminent domain; or, when the defendants took possession of her land she could have commenced an action for all the damages which she might have sustained; or, an action in ejectment and for damages. But she chose the first-mentioned remedy; and while pursuing that remedy, she cannot institute another. (Ney v. Swinney, 36 Ind. 454.) She cannot proceed with her action for damages for the use of the land, and also have her action to perpetually enjoin the defendants from the exercise or enjoypient of such use. And that she is really the plaintiff on an appeal" taken by herself in a condemnation proceeding, see Gulf Rld. Co. v. Owen, 8 Kas. 410, and St. J. & D. C. R. Rld. Co. v. Orr, 8 Kas. 419. When a party takes an appeal in a condemnation proceeding, he really abandons all other remedies until the appeal, is disposed of. It would indeed be wrong to authorize the prosecution of two remedies for the same thing at the same time; for costs must necessarily accrue in both cases, saying nothing about ,„the other expenses and inconveniences necessarily incidental to such proceedings. The reservation in the appeal bond of the right to question or contest the validity of the condemnation proceedings amounts to nothing either in fact or in law, and it is not necessary to further consider it. II. Taking the whole case together, the plaintiff is not entitled to the equitable relief which she now seeks. It would not only not be equitable for her to obtain such relief, but it would be highly inequitable. The plaintiff has known nearly from the beginning, the entire object and purpose of said depot and railroad company. And as she has seen the company in good faith, as a supposed corporation, with a supposed legal right and supposed power, building a large and costly railroad depot near her hotel, expending thousands and thousands of dollars in its construction, enhancing the value of her property immensely, and doing all this with the expectation of connecting its depot with the Atchison & Nebraska railroad, by means of an indispensably necessary railroad track, constructed across a small triangular piece of the plaintiff’s premises, and she making no legal objection thereto until the depot is nearly completed, but on the contrary seemingly acquiescing therein, by merely taking an appeal in the condemnation proceedings to the district court so that she might get larger damages for her land taken, and where such question of damages is still pending, she cannot now resort to a court of equity to aid her in depriving the company of the use of said railroad track, and consequently of the full use of its said depot building, which she by her acts has really encouraged to be built. The judgment of the court below will be affirmed. All the Justices concurring.	[ -80, 106, -16, -34, 74, 96, 48, -70, 33, -95, -76, 83, -115, -55, 0, 123, -66, 47, -48, 123, -13, -73, 7, -94, -46, -45, -13, -59, -79, 95, -10, -42, 76, 48, 74, -43, 102, -54, 65, 92, -114, -92, -88, -24, -47, 72, 52, 123, 66, 78, 49, -83, -13, 40, 28, -61, -88, 60, -49, 45, 123, -7, -126, -57, 93, 70, 33, 52, -108, 7, -56, 63, -48, 53, 1, -72, 83, -74, -122, 116, 103, -5, 77, -94, 99, 99, 53, -17, -20, -100, 30, -78, -123, -90, -96, 8, 99, 73, -74, -99, 85, 22, -121, 126, -90, 21, 89, 124, 7, -117, -78, -73, -97, 48, -110, 71, -21, -95, 49, 96, -59, -118, 93, -122, 50, -109, -113, -70 ]
The opinion of the court was delivered by Brewer, J.: This was an action of ejectment, in which the defendant claimed under a tax deed, and the only question is, whether he was entitled to recover the taxes paid by him, and interest, before being dispossessed of the land. The case was tried by the court, without a jury, and the claim of defendant for taxes sustained. From the agreed statement of facts, it appears that— “The land in controversy was subject to taxation for the year 1870, and the taxes legally assessed thereon remained due and unpaid on the first Tuesday of May, 1871, and the same was by the county treasurer, . . . duly and legally bid off for the county of Coffey . . .; that said land remained unredeemed from said sale until January 2, 1878, at which time the plaintiff in this action redeemed the land from said sale; that the tax thereon for the year 1871 was legally carried to said sale to Coffey county by the treasurer of said county, and was included in the redemption made by plaintiff on January 2, 1878, • . . . and no subsequent faxes were included in said redemption; that the land in dispute was duly and legally assessed for the, year 1872, and the taxes thereon for said year remained due and unpaid on the first Tuesday of May, 1873, at which time . . . the treasurer of said county sold the same to Austin Corbin for the delinquent taxes and charges thereon, amounting to the sum of $111.13 for the year 1872; that on the 13th day of July, 1873, the said Corbin duly assigned the tax-sale certificate, issued to him by the county treasurer, . . . upon said sale, to John L. Farwell, one of the defendants in this action; that on the 17th day of July, 1876, the county clerk of Coffey county, . . . executed and delivered to the said John L. Farwell a tax deed; that the said Farwell paid the subsequent taxes on said property up to and including the taxes of 1878; that some of these taxes were included in the deed, and.the others paid subsequently were simply upon receipts; and that upon January 10, 1878, at the instance of the plaintiff, the county commissioners of Coffey county made an order under § 146 of the tax law, declaring the sale and deed invalid, and directing the return of the taxes and ten per cent, interest to the holder of the deed upon delivery of a quitclaim deed to the plaintiff. The defendant, however, never accepted the benefits of this order, nor executed the quitclaim.” Plaintiff in error has filed an elaborate argument, challenging the ruling of the district court which sustained defendant’s claim for taxes. Notwithstanding this, it must be held that the decision comes within the plain letter of the statute, and is sanctioned by repeated rulings of this court. Defendant had paid the taxes into the county treasury; he had purchased the land at a regular tax sale; he had received a deed executed in substantial compliance with the statutory form, one prima facie valid, and which in tim'e would ripen into a perfect title beyond the reach of challenge. The land was subject to taxation, and the owner had not paid the taxes. True, the sale could not be upheld, because not made in conformity to .the statute. The title, challenged when it was, failed. But the defect was not as vital as that disclosed in Smith v. Smith, 15 Kas. 290. There, the power to assign the sale certificate did not exist. No one could make a valid transfer. The deed was void upon its face, and never started the statute of limitations to run. Yet it was held that § 142 of the tax law applied, and that the holder of the tax deed, even though it were void upon its face, could not be dispossessed until reimbursed his taxes and interest. See also Challiss v. Hekelnkœmper, 14 Kas. 474; Millbank v. Ostertag, ante, p. 462. It is urged that if such a sale can be upheld, the county might be wronged by the loss of the taxes for the prior years. But the sale is not upheld. The county may repudiate it, and return the money it has received. But even a county may, if it sleep upon its rights too long, lose them. If, notwithstanding the prior taxes, it makes a sale, receives pay and then issues a deed prima faaie valid, the statute of limitations may uphold that deed to the loss of all prior taxes. But be that as it may, the rights of the county are not here in question. The land-owner who has never paid these taxes is challenging the possession of one who has paid them — who for years has been discharging his obligations to the public. To encourage just such acts, not for the sake of punishing the land-owner, but to enforce a prompt payment of public dues, the statutes guarantee either title, or failing that, a large bonus to him who will voluntarily assume and discharge delinquent obligations to the county. Again, it is 'urged that because the commissioners have declared the sale and deed invalid, and tendered back the taxes and ten per cent, interest, the purchaser is bound to accept this, and can no longer claim under said § 142. Such is not the purpose or scope of the statute under which this action of the commissioners was had. It is for the benefit of the county and the tax purchaser, rather than the land-owner. If it were as potent as is claimed, it would practically nullify § 142, for the ascertainment of the invalidity of the tax deed is not left exclusively to the commissioners, but the .section in terms provides for the action of the commissioners whenever “it shall be discovered or adjudged that the sale was invalid.” Land-owners would invariably proceed under this section, asking the commissioners to clear off the taxes • by-payment out of the county fund, and then by a relevy, attempt to collect them off from the land. As the section provides for payment of ten per cent, interest, and as the relevy could only be for the original taxes, such proceedings, postponing for years the payment of taxes without cost or interest, would be very profitable to the land-owner, but ruinous to the public. The section manifestly adjusts rights between the county and the tax purchaser. Often it furnishes the only remedy to the latter. If the land was not subject to taxation, or if the taxes had in fact been paid, it may well be that the tax purchaser is not only without any rights or claim against the land-owner, but without any remedy against any party save as given by this section. So also in a case like the present, where the county, while holding for the taxes of one year, has sold for the taxes of a subsequent year, for its own protection it may under this section set aside the sale upon return of the taxes and ten per cent, interest. One other question remains. It is claimed by defendant in error that as no tender was made of taxes and interest before the commencement of the action, it was prematurely brought, and Hoffmire v. Rice, 22 Kas. 749, is cited. This is a mistake. If the tax title failed, the original owner would recover possession without any payment of taxes but for the provisions of the statute. They guarantee possession until payment. But the statute plainly contemplates an adjudication as to the validity of the tax title before any order is made as to taxes (§ 142), and that provision was recognized in the case cited. There being no other question in the case, the judgment will be affirmed. All the Justices concurring.	[ -15, 106, -15, -100, -70, 64, 42, -104, 72, -77, -91, 87, -23, -112, 1, 101, 98, 77, 85, 122, 70, -73, 87, 107, -46, -13, -39, -51, -79, 73, -28, 118, 12, 48, 66, -75, 68, -30, -57, 92, -114, -128, -87, 76, -47, 40, 52, 105, 98, 11, 81, -82, 115, 40, 60, -61, 73, 44, -37, 57, 16, -72, -70, -107, 111, 3, 17, 103, -40, 67, -56, -86, -110, 49, -64, -8, 123, -92, -122, -12, 13, -119, 44, 100, 39, 49, 21, -17, -72, -119, 14, -101, 29, -25, -12, 88, 90, 8, -66, -99, 117, 82, 71, 126, -18, 5, 29, 44, 5, -54, -60, -77, 15, 62, -102, 3, -5, -93, 48, 97, -49, -90, 92, 103, 58, -101, -122, -8 ]

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